Vice is Elsewhere
- posted by Jim Leitzel @ 5:14 PM

Workshops prior to and following this conference mean that I will be largely or wholly absent from the blogosphere for the next twelve days. Check out the great goings-on with Pete, Libby, Baylen, Scott, Ken, and Radley, among others. (I hope that it is not too impolite to employ first names for all these super bloggers whom I have never met.) Oh, almost forgot, DUI Blog has had a lot of interesting posts lately, including this one on how the state of Washington welcomes evidence on blood-alcohol concentration gathered from broken breathalyzers.

Labels: breathalyzer, solipsism

 
Extrapolating Blood Alcohol Content Measurements
- posted by Jim Leitzel @ 11:49 AM

In many cases, a person arrested for drunk driving does not have his or her blood alcohol content (BAC) checked (at least by a certified tester) until well after the traffic stop. In the meantime, the body goes on metabolizing alcohol -- that is, the person sobers up a bit. What happens if a breathalyzer test is administered, say, two hours after the arrest, and the person records a BAC of .05? Is that enough evidence to convict him of DWI, given a per se standard of .08? Does .05 now imply .08 or above two hours ago?

It appears as if an appeals court ruling in North Carolina means that, in the Tar Heel state, the answer to that question is "yes" -- for legal purposes, alcohol decays at the rate of .0165 per hour. Here's the story, from the Winston-Salem Journal.

Labels: alcohol, breathalyzer, driving

 
Doctor or Informant?
- posted by Jim Leitzel @ 3:12 PM

Remember that fellow in Pennsylvania who lost his driver's license after he told his doctor that he drank more than a six-pack of beer per day? (The doctor probably felt compelled to bring his case to the license authorities, given state law, though the doctor later refused a request to clear him to drive.) He claimed only to drink at home after work, without driving afterwards. Anyway, the patient went to court to get his license reinstated, and the judge yesterday fashioned a compromise. The man can get his license reinstated, but only if he installs in his car an ignition locking system that will prevent him from driving unless he passes an in-car breath test. The locking device will cost about $1,000 per year, apparently.

I do worry about laws that require doctors to become informants, especially when there is no clear and present danger of a crime about to be committed. Patients will be even more likely to lie about their alcohol use, and the extent of alcohol consumption can be an important piece of information in determining a proper diagnosis and treatment plan.

In Minneapolis, a hospital doctor refused to take a blood sample from a suspect arrested in a fatal stabbing. Police wanted a measurement of the suspect's blood-alcohol content. The doctor did not have the suspect's informed consent. The doctor also refused to take the sample following a phone call from a judge. The doctor was arrested, and the blood sample was eventually (5 hours after the initial "presentation") taken by another physician following the arrival of a signed court order. It now looks as if the arrested doctor will not suffer any further legal or administrative sanctions for his decision, which on the surface appears to have been in compliance with hospital guidelines.

Labels: alcohol, breathalyzer, driving, informants, interlocks

 
Charlotte Observer Drinking and Driving Series
- posted by Jim Leitzel @ 4:46 PM

On Sunday Vice Squad drew (here and here) from the first part of a three-part series in the Charlotte Observer on drinking and driving. Parts 2 and 3 are now available (free registration required). Part 2 focuses on judges and courts, and includes this account of a special alcohol treatment court for repeat drunk drivers. The judge is a recovering alcoholic himself. The lead story in today's Part 3 concerns what happens when a driver refuses to take a breath test in the Carolinas. Here's a sample:

Each month in North Carolina, an average of nearly 900 DWI suspects -- or about 18 percent of those arrested -- refuse breath or blood alcohol tests, the Observer found. In South Carolina, 32 percent of those arrested on drunken driving charges refuse the tests, according to the S.C. State Law Enforcement Division.

Across North Carolina, when suspects plead not guilty after declining alcohol tests, about 57 percent who go to trial are convicted. For those who agree to be tested, the conviction rate is about 62 percent.

All three parts, which together total more than 20 individual stories, are available here.

Labels: alcohol, breathalyzer, driving

 
Police Discretion
- posted by Jim Leitzel @ 3:33 PM

The police have a lot of discretion over whether or not to arrest someone, and on what charges might be brought. That is true in all areas of the law, but generally more so with respect to vice offenses, as they generally don't involve a victim reporting a crime to the police.

A generous Vice Squad reader brings our attention to police intervention on the behalf of a friend [a friend of the officer, that is] who was, perhaps, driving while intoxicated. The events took place in Lafayette, Indiana. They are described in this article from the Lafayette Journal and Courier, with updates here and here. One reason it is unknown if the woman was driving while impaired is that the breathalyzer machine at the station wasn't operating, by golly. Rather than take her to another station, the shift commander for the Lafeyette police department decided to release her into the custody of the off-duty deputy chief of the West Lafayette police department. The woman is on probation from a September, 2003, drinking and driving incident, and she had three kids in the car with her. The deputy police chief is friends with the woman's husband, who is a trustee in his town of Wea Township, Indiana. The deputy police chief has been reprimanded for his intervention, though he has not been suspended nor will he receive any other disciplinary action. Sounds like a handy friend to have.

Via Crim Law (who in turn hat tips True Believer), we learn of another case of police discretion, only this time, the police officer is paying a high price. Last November, he stopped a car in Ashley, Illinois, where he was a village police officer. He found a marijuana cigarette but followed the instruction of an Illinois state trooper who was on the scene to forget about it, as the piddling arrest wasn't worth the trouble. Sounds like sensible advice. But the now-former officer faces two felony charges over the incident, one for malfeasance and a second for obstruction of justice. Why the charges? Well, according to the former officer, whose last name is Gibson, he managed to get on the wrong side of a local prosecutor. Here's an excerpt from the account at Belleville.com:

Gibson said his firing from his job as an Ashley Police officer is due to a personal campaign against him by [Washington County State's Attorney Brian] Trentman. He said it stems from a drunken driving citation Gibson issued in December to the 18-year-old grandson of a Washington County board member.

The board member, who is also a Democratic precinct committeeman, complained to Trentman. Trentman had the charge tossed on grounds that Gibson was out of his jurisdiction when he issued the ticket.

Trentman, who could not be reached, has denied pursuing a vendetta and has stated politics played no role in his decision to have the DUI dismissed.

But in January after Gibson complained about the dismissal in a newspaper story, he was charged by Trentman with a felony for allegedly making an improper traffic stop several months earlier -- stopping a motorist by using an unauthorized emergency light in his private vehicle. That was the marijuana stop on the interstate.

Gibson in January publicly accused Trentman of having the DUI dropped for political reasons and the next day he was charged for having the light in his SUV. Gibson was jailed until he posted $3,000 cash on a $30,000 bond and his SUV was seized as evidence. The vehicle has not been returned.

Trentman, a former St. Clair County public defender, was then running in the Democratic primary for county judge. He lost to Associate Judge Dennis Hatch.

In the latest charges, which Gibson said resulted from his earlier refusal to plead guilty and accept probation, he is accused of tossing the motorist's marijuana cigarette in a roadside ditch near Interstate 64.

At least this prosecutor wasn't actually elected to the bench.

Labels: alcohol, breathalyzer, driving, marijuana, policing

 
More on Avoiding Per Se Drunk Driving Laws
- posted by Jim Leitzel @ 11:01 AM

The Charlotte Observer story that served as the basis for the previous post about the workings South Carolina's per se drunk-driving law is but one of many DWI stories in today's Observer. The newspaper is conducting a three-part series on DWI. Today's edition also looks at how North Carolina's per se law works in practice, and includes separate stories on Charlotte-area counties. It seems that many people who register above .08 plead guilty. But for those who go to trial, as in South Carolina, a measured blood-alcohol content of .08 or above is far from assuring conviction. Here's a snippet from an Observer editorial (entitled "Sobering acquittals") that draws upon their DWI investigation:

The law is the law.

Unless the law is North Carolina's law saying driving with an alcohol concentration of 0.08 means you are driving while impaired.

Unless you're in one of those counties where people tried for DWI after testing over the legal alcohol limit have only a 1 in 10 chance of conviction.

Or unless, with your 0.08 or 0.09 reading, you arrive in the courtrooms of some judges whose conviction rates in such cases are shockingly below the state's average and those of most of their judicial colleagues.

Labels: alcohol, breathalyzer, driving

 
Car Breathalyzer Still Has Some Bugs
- posted by Jim Leitzel @ 1:10 PM

Remember the alco-lock mentioned a few days ago, the device that won't allow a car to start until a breathalyzer test is passed? Well, a correspondent with The Guardian tried it out and, well, it didn't seem to work for him. The journalist wasn't trying to fool the system, either, but many people do; from The Guardian article:

"What's foolproof?" said Ian Marples, a director of Alcohol Countermeasure Systems, the Canadian company chosen to introduce the system in Britain and which is testing it for the department. He expects a large percentage of the 20,000 people banned each year for drink driving in Britain to try to cheat if they are ordered to have the lock fitted.

"In our experience drink drivers will try anything. Some have installed air pumps to their cars, others blow up balloons and connect them to the mouthpiece, others try to filter out the alcohol by blowing through cat litter and charcoal and some even try to fool it by blowing through 20 feet of tubing," said Mr Marples.

"The creative ingenuity of drink drivers is amazing to behold. The alco-lock is predicated on the basis that users will try to defeat it. Its greatest weakness is that it cannot identify between different people. But the computer looks for just about everything. Nothing's foolproof but it is pretty difficult to beat it."

Labels: alcohol, breathalyzer, Britain

 
On Knowing Your Blood Alcohol Content
- posted by Jim Leitzel @ 12:10 PM

Generous Vice Squad reader Larry from California sends along this comment (and an apology to Larry for somehow getting his name wrong earlier -- now I am worried about the California part, too):

"It's illegal to drive with a blood alcohol concentration above a certain
level, but bars and restaurants have no obligation to provide tools for
their customers to evaluate their level of intoxication before driving.

Bars could have breath testing units at tables or in restrooms, or just
copies of the BAC chart that California's DMV sends me with my car
registration every year. Testing devices could have a maximum BAC
reading to prevent customers from competing to register high readings.

Obviously this idea has potential problems, such as

* Testing devices could be hard to maintain and guard against theft or
vandalism.

* Bar drinks can contain more than one standard drink, making a chart
hard to interpret and potentially misleading.

* Alcohol takes time to be absorbed so test results in the bar might not
reflect a drinker's blood alcohol later while on the road.

* Liability issues, although legislatures could certainly deal with this.

* A blood alcohol concentration (BAC) of .08% is definitely illegal in
most states but the opposite is not true. A driver can be considered
intoxicated even with a BAC below .08%.

More generally, government does not seem to want citizens to know how
much alcohol they're drinking. Proposals to label alcohol containers
with the number of standard drinks they contain have gone nowhere, even
though alcohol consumers might find that information helpful."

Until the mid-1990s, a federal law prohibited the disclosure of alcohol content on beer advertising or labels in the US, but this law was overturned by a Supreme Court decision. Presumably there is concern that advertising alcohol content will cause an "arms race" for higher and higher alcohol levels. (My year in Britain convinced me, perhaps wrongly, that the Brits must have a law requiring alcohol content disclosure on beers -- and it did seem that the higher alcohol content beer became more popular as closing time approached.) I believe that alcohol content disclosure is handled differently by different states in the US.

A bar/restaurant in North Carolina that I used to frequent briefly had a breathalyzer available to its customers. Its main use, as far as I could tell, was to encourage contests to record the highest BAC -- so Larry's suggestion of a maximum reading sounds good to me. (Maybe even just an above/below the legal limit indicator.) My recollection is that someone who is drinking steadily will see his BAC maximize about one-half hour after he stops consuming alcohol. (Please do not rely upon this information/misinformation; for that matter, do not rely upon anything posted on Vice Squad.)

In general, I just don't have much information on the rules/effects surrounding alcohol content disclosure, or on the provision of BAC measuring devices. Happy to hear from knowledgeable parties.

Here's a webpage that discloses the alcohol, calorie, and carb content of lots of beers.

Labels: alcohol, breathalyzer, California, driving, Supreme Court

 
Car Breathalyzer Use Expanding
- posted by Jim Leitzel @ 5:51 PM

Today's news is out of Britain, which will offer convicted drink-drivers a chance to get their licenses back more quickly if they agree to have the breathalyzer installed. The car won't start if the test is not passed, and further tests while driving also have to be passed for the car to keep going. Yes, your sober buddy in the passenger side could take all of the tests for you, but that is cumbersome and he probably wouldn't want to, anyway.

In my posts on Overlawyered two weeks ago calling for higher alcohol taxes, I mentioned that the case for such taxes would be weakened if we found more targeted approaches to dealing with the external costs of drinking. Car breathalyzers are one possible case in point.

Labels: alcohol, breathalyzer, Britain, driving

 
Anti-Halitosis v. Anti-Alcohol
- posted by Jim Leitzel @ 5:20 PM

Alcohol is used for a variety of non-beverage purposes, and these alternate uses greatly complicate the enforcement of high alcohol taxes or strict anti-alcohol beverage regulations. Thus the 18th Amendment in the US forbade the manufacture, sale, transport, or import of alcohol used in intoxicating beverages, leaving sacramental, industrial, and medicinal alcohol legal -- and thereby providing routes to evade the beverage restrictions. (See our earlier post on the Jamaican Ginger paralysis.) Parts of Australia with significant alcohol problem have recently adopted strict new alcohol controls, and concerns have been raised about inducing the use of alcohol-rich mouthwash -- ugh -- for beverage purposes. (If the Soviet example is a prelude, keep your eye on cologne sales, too.) So, naturally, mouthwash sales are also being watched. But not to worry, the quality of breath in Queensland need not suffer. The government minister overseeing the regulations "said she would continue to monitor the sale of mouthwash, but said a careful balance had to be maintained so as not to disadvantage people using the product for its intended purpose." Phew.

Labels: alcohol, Australia, breathalyzer, Prohibition

 
Youthful Pedestrians Win One in Michigan
- posted by Jim Leitzel @ 7:25 PM

Drivers have to submit to Breathalyzer tests requested by the police or
suffer serious consequences -- even when the police do not have a
search warrant. In Michigan, pedestrians under the age of 21 were
subject to a similar regime. A nineteen-year old walking down the street
could be asked by an officer to submit to a Breathalyzer, and could be
fined for refusing to do so. Not anymore, following a ruling last week by
federal district judge David Lawson. Here's an excerpt from the ACLU
news release on the case:

"Judge Lawson held that the ordinance violates the Fourth Amendment
because (1) a breath test is a search, (2) the Fourth Amendment
ordinarily prohibits searches without search warrants, and (3) no
exceptions to the search warrant requirement apply.

Judge Lawson further emphasized that 'the right to be left alone in
public places ranks high on the hierarchy of entitlements that citizens
in a free society have come to expect - at least in the context of
citizen-police encounters.'"

One of the interesting aspects of this decision, at least for Vice Squad,
is that the case was brought by a factually innocent party, a young
woman who had not been drinking but who did not want to take the
Breathalyzer. She submitted under the threat of a $100 fine and indeed,
the test confirmed that she had not been drinking. Would the decision
have turned out the same way if she had been, say, above the state
BAC limit? (Vice Squad has harped on the issue of search and
seizure law being dominated by cases involving factually-guilty
individuals in the past.)

Labels: alcohol, breathalyzer, search, teens