"Shaming" Drivers Charged With DUI, (But Still Presumed Innocent?)

When I read this article about Arizona drivers convicted of DUI being forced to wear pink prison uniforms and work in a chain gang, my first reaction was relief that Canadian authorities wouldn't see shaming as a legitimate strategy in the effort to make our roads safer.
Was I ever wrong.
Yesterday, the Winnipeg Police announced they would publish the names of drivers charged - but not yet placed on trial, let alone convicted - for impaired driving. The list is at the Police web site. It is the 21st century equivalent of locking people in stocks, for public ridicule. You can go look for it if you want, but I won't link to it.
There are answers to the problems of impaired driving, but shaming people and casting aside the presumption of innocence surely aren't among them.

MADD Canada Overreaches With Sutherland Comments

MADD Canada was quick to react to actor Kiefer Sutherland's DUI jail sentence, urging Ford Canada to cancel his contract as a celebrity endorser, but probably didn't expect the backlash:

Give the guy a chance. As the first celebrity in years to face his DUI punishment head on, Kiefer Sutherland is trying to set a new standard in Hollywood with regards to celebrities being above the law. But that apparently wasn’t good enough for Mothers Against Drunk Driving Canada CEO Andrew Murie, who today, on the second day served of Sutherland’s 48-day Glendale, CA prison sentence, was all over the Canadian media landscape urging Ford Canada to drop the voice of Sutherland from its TV ads. It’s an appallingly ill-timed PR move that is already getting the thumbs down from many Canadians.

Ford Canada has said they have no immediate plans to end their relationship with Sutherland.

Officer Caught Arresting Sober Motorists for DUI

Another recent article, this time from Oregon:

An award-winning police officer in Corvallis, Oregon quits after investigation looks into his arrest of sober motorist for DUI.

A sober man wants justice after he was arrested for driving under the influence of alcohol (DUI) by one of the most productive Corvallis, Oregon police officers. David E. Picray notified the city on August 30 that he was considering filing suit for false arrest, as reported by the Corvallis Gazette-Times newspaper.

On May 11, Picray had gone to a bar to pick up his wife and friends. While parked, his wife sent him a text message that they had moved to a bar a block away, so Picray drove a bit closer to the second bar, stopping his car in a store parking lot. When Picray left the car, Officer Dave Cox, who had been staking out area bars, confronted him. Cox suggested that Picray's driving such a short distance was suspicious.

Cox wrote in his report that the motorist had "bloodshot and glassy" eyes and that his tongue had a "light green coating." The motorist had a cold and was chewing gum. The motorist blew 0.0 on a breathalyzer test and a drug test confirmed that his system was clean, aside from a trace amount of codeine from cold medicine taken the previous day. Although Picray was not charged with a DUI offense, the arrest will stay on his record.

"An arrest for traffic is not expungeable," Corvallis defense attorney Jennifer Nash told the Corvallis Gazette-Times newspaper. "So when innocent people are arrested there is actual damage."

Picray was not the only sober motorist arrested by Cox in May. At least six of 27 motorists arrested by Cox for DUI that month passed drug testing and registered blood alcohol levels below the legal limit. Nonetheless, twenty-two of the arrest reports contained passages essentially identical to those in Picray's report describing "bloodshot and glassy" eyes and other alleged indicators of intoxication.

California defense attorney Lawrence Taylor calls says this "Xeroxing" of arrest reports is common.

"The (prewritten) report tells the officer what he should have seen -- not what he actually saw," Taylor wrote. "And as any honest cop will tell you, drunk driving cases rarely follow such a neat, pre-described script. But it is convenient. And avoids messy complications -- like the actual facts."

Corvallis police put Cox on paid leave on September 14 and he resigned November 1. Sergeant Jim Crain was put on leave October 18. Cox made 27 of the 35 DUI arrests for Corvallis in May and was named DUII Enforcement Officer of the Year in 2003.

"I believe this is part of a larger problem with the Corvallis police," Dr Adam Schultz, a resident, wrote in a letter to the mayor. "Is it not true that the police officers attempt to maximize their performance-related pay reviews, and that the number of citations is a key metric? Isn't this the perfect condition for a conflict-of-interest, i.e. rather than measuring performance through improvement in road safety, instead doesn't this encourage spurious citations?"

Source: Man who filed tort claim IDs himself (Corvallis Gazette-Times (OR), 11/10/2007)

Sober Diabetic Man Tasered, Accused of DUI

This article appeared recently in Alabama:

Police in Ozark, Alabama on Tuesday used a taser on a sober man who was having a diabetic seizure. A trio of police cruisers were called to the scene of a black Nissan truck and trailer pulled over on the side of the road near the intersection of Highway 231 and Marley Mill Road at around 4pm. James Bludsworth, 54, a man with no criminal record, was was slumped over behind the wheel. Because of his condition he was not responsive to police commands.

Police then fired tasers at the sick man three times. A police officer now says that he smelled alcohol on Bludsworth, even though later testing showed no trace of alcohol in his system. Ozark Police Chief Myron Williams also claims the sick man was "combative." Instead of taking Bludsworth to medical care he was booked at Dale County Jail and charged with resisting arrest and driving under the influence of alcohol (DUI). Bludsworth has no recollection of the incident and is free on $1000 bond.

Police later dropped a charge against Bludsworth relating to an alleged towing infraction.

Source: Criminal charges remain against driver found unconscious (Dothan Eagle (AL), 11/9/2007)

(Thanks again to Lawrence Taylor)

Government Attempts to Sway the Judiciary

Lawrence Taylor discusses attempts by government agencies to influence the judges who decide DUI cases in a new post on his blog. It's worth a read.

Traffic Safety and the Over-emphasis of Alcohol as a Cause of Accidents

Reducing the rate of traffic accidents on our roads requires a clear assessment of what sorts of behaviors are creating the danger. The use of alcohol by drivers is unarguably a leading cause of accidents, but if there is an over-emphasis on alcohol, we risk overlooking other causes. Fatigue, driver inattention and speed are all causes of accidents, and addressing them with some of the resources directed to the fight against drunk driving might result in greater increases in traffuc safety. Lawrence Taylor made this point recently in his California DUI Blog.

New Video at the DUI Centre

We've just posted the latest in our video series over at the DUI Centre web site. You can see the video right here:

Logjam in Provincial Court

The inefficiency that results from using old world procedures in the electronic age has frustrated me for years. Over at the DUI Centre site, I've posted an article I wrote about how the Provincial Court could use technology we already have, and laws that are already on the books, to improve efficiency and reduce the cost of defending DUI charges. Click on the link under the title, "Breaking the Logjam in Provincial Court".

How can you defend drunk drivers?

The granddaddy of DUI bloggers, Lawrence Taylor, answered this question in a post on his blog.

More on MADD

The Toronto Star reports that 81 cents of every dollar donated to MADD is spent on administrative costs, including salaries for non-volunteers, and tele-marketing expenses.

You can imagine what fundraising volunteers think of that:

MADD Canada founder John Bates, who received the Order of Canada for his anti-drunk driving work, said the group created at his kitchen table many years ago has lost its way. He and other volunteers have raised this issue with Murie over the past year.

"We started off with no money at all. Now MADD has become a money machine working on fear and scare tactics," said Bates, the one-time chairman who now has an honorary position on the board but no voting power. "There are wonderful people doing great volunteer work in MADD chapters across Canada but MADD head office has taken a national tragedy and turned it into a fundraising machine."

MADD really has lost its way.

Latest from MADD: Defence lawyers are the problem

Mothers Against Drunk Driving and the International Association of Chiefs of Police have discovered the source of the impaired driving problem, and it isn't what I thought.

In a recent publication, MADD and the Chiefs pointed to laws, judges and defence lawyers:

• Poorly written, loophole-ridden, or unenforceable laws.
• A judiciary that struggles to define itself and maintain its objectivity in the face of aggressive defense attorneys.
• An organized DUI defense bar more concerned with “winning a case” than with the carnage on our streets and highways.
• Appellate court decisions that hinder impaired driving enforcement.

MADD continues to misunderstand the causes and solutions for problem of impaired driving.

Excluding evidence of breath samples, when demand has been held to be illegal

From time to time, I read reports of cases where a prosecutor has argued in Provincial Court, sometimes successfully, that evidence of the analysis of a driver's breath samples should be admitted in evidence, in spite of a ruling by the trial judge that the demand for breath samples was made without reasonable grounds, or a ruling that the samples were taken in a manner that violated the driver's right to counsel.

There is carefully considered authority from the BC Supreme Court which establishes beyond much doubt that the breath samples should be excluded. When a demand is made without reasonable grounds, the evidence can be excluded without the necessity of further argument, according to the case of Regina v. Girard. When the right to counsel has been violated, the case of Regina v. Bloom emphasized that the violation is serious and the evidence should be excluded.

Zambonis and Horses

Last week, Totaldui.com reported two news stories that you don't read every day. In the first, a man in New Jersey was acquitted of DUI, after he was found driving a Zamboni around an ice rink. The judge ruled that, although his blood alcohol level was over the state's legal limit, he was not driving the vehicle on a public street or highway.

In the second, a woman in Alabama was charged with DUI after she crashed her horse (yes, her horse) into a police car. Police said the horse was not in the best of health, but it was still alive.

President Bush's Old DUI

Impaired driving is an offence that trips up people in all walks of life. George W. Bush was charged with driving under the influence in Maine when he was 30 - the conviction doesn't seem to have affected his rise to the Presidency of the United States. His running mate, Dick Cheney, has two convictions for the same offence. Canadian politicians run in to the same problems - just ask Gordon Campbell, the Premier of B.C. about his holiday in Hawaii.

Online Blood Alcohol Calculators

There are a number of blood alcohol calculators available online.

They include "The Police Notebook" from the University of Oklahoma Police Department, "The Drink Wheel" by Intoximeters Inc., and Ron Jourard's Impaired Driving Defence Calculator.

They all claim to be accurate, but will arrive at different results based on the same inputs. Rely on them at your own risk!

Questions About the Ignition Interlock

The introduction of the ignition interlock, announced in a 2006 ICBC press release, may or may not be a good thing for BC drivers. It will definitely be a good thing for the manufacturer, who will make a generous profit through its monopoly on servicing the devices.

Will it make our roads safer? They don't think so in California: a recent report by the state's Department of Motor Vehicles concluded that the ignition interlock increased the risk of a motor vehicle accident.

If that's the case, can you tell me again why we are doing it here in BC?

Fooling the Breathalyzer

A common myth is that breath testers can be "fooled" (that is, made to generate estimates making one's blood alcohol content appear lower) by using certain substances. An episode of the Discovery Channel's MythBusters tested substances usually connected to this practice -- including breath mints, mouthwash, and onions -- and found them to be ineffective. Adding an odor to mask the smell of alcohol might fool a person, but does not change the actual alcohol concentration in the body or on the breath. Interestingly, substances that might actually reduce the BAC reading were not tested on the show. These include a bag of activated charcoal concealed in the mouth (to absorb alcohol vapor), an oxidizing gas (such as N2O, Cl2, and O3 etc.) which would fool a fuel cell type detector, or an organic interferent to fool an infra-red absorption detector. The infra-red absorption detector is especially vulnerable to countermeasures, since it only makes measurements at particular discrete wavelengths rather than producing a continuous absorption spectrum as a laboratory instrument would do.

On the other hand, products such as mouthwash or breath spray can "fool" breath machines by significantly raising test results. Listerine, for example, contains 27% alcohol; because the breath machine will assume the alcohol is coming from alcohol in the blood diffusing into the lung rather than directly from the mouth, it will apply a "partition ratio" of 2100:1 in computing blood alcohol concentration -- resulting in a false high test reading. To counter this, officers are not supposed to administer a screening device for 15 minutes after the subject eats, vomits, or put anything in their mouth.

This was clearly illustrated in a study conducted with Listerine mouthwash on a breath machine and reported in an article entitled "Field Sobriety Testing: Intoxilyzers and Listerine Antiseptic", published in the July 1985 issue of The Police Chief (page 70). Seven individuals were tested at a police station, with readings of .00%. Each then rinsed his mouth with 20 milliliters of Listerine mouthwash for 30 seconds in accordance with directions on the label. All seven were then tested on the machine at intervals of one, three, five and ten minutes.

The results indicated an average reading of .43% blood-alcohol concentration -- indicating a level that, if accurate, approaches lethal proportions. After three minutes, the average level was still .20%, despite the absence of any alcohol in the system. Even after five minutes, the average level was .11% -- well over the legal limit.

In another study, reported in 8 (22) Drinking/Driving Law Letter 1, a scientist tested the effects of Binaca breath spray on an Intoxilyzer 5000. He performed 23 tests with subjects who sprayed their throats, and obtained readings as high as .81% -- far beyond lethal levels. The scientist also noted that the effects of the spray did not fall below detectable levels until after 18 minutes.

Memories - How good are they, really?

I've done hundreds of impaired driving trials, but I've only testified in one. That experience left me with a deep skepticism about any witness who claims to remember exactly the details of an investigation many months in the past.

About 15 years ago, when I was a law student in Victoria, I was offered a chance to ride along with a police constable in Esquimalt on a night shift. The officer was a pretty good guy, and I got to watch him do two impaired driving investigations. The first one was memorable - we pulled around the corner in time to see a guy squatting beside his car, trying to change a flat tire. When he saw the police cruiser, he lost his balance and fell over flat on his back. He was arrested and taken back to the detachment, and then we went to back out on the road. The second investigation was boring by comparison. All I remember is a van that was stopped at the side of the road.

I wrote a statement for the police on each of the investigations, and then went home. I had school the next day.

Many months later, I received a subpoena for court. I went down to the Crown Counsel's office on the day of the trial, and I met the prosecutor for my pre-trial interview. He gave me a statement that was in my handwriting, and had a signature which that looked like mine, but I couldn't remember any of the things that the statement talked about. I thought I was coming to court to testify about the guy who fell over on his back, but the statement was something about a van at the side of the road. I told the prosecutor that it looked like my handwriting, and it was definitely my signature, but that even though I had no doubt that what I had written was accurate, I simply couldn't remember it without reading it from the page.

Jump forward 15 years, and I am cross-examining police officers every day who have conducted hundreds of similar investigations. Many come to court months after an investigation was concluded, and testify about detailed recollections of the event. I am always amazed - do these witnesses have exceptional memories, or are they sticking to a script?

Welcome to the DUI Centre

We've posted the first video on the DUI Centre site. Here it is: