ALABAMA DUI BLOG

The important role of defense counsel

2009-07-04T14:58:00.000-04:00

“Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.”
U.S. v. Wade, 388 U.S. 218, at 256-258 (1967), Justice White, concurring and dissenting.

Alabama Dept. Of Forensic Sciences Breath Test Rules

2009-07-04T13:26:00.000-04:00

ALABAMA DEPARTMENT OF FORENSIC SCIENCES
ADMINISTRATIVE CODE

CHAPTER 370‑1‑1 CHEMICAL TEST FOR INTOXICATION

TABLE OF CONTENTS

370‑1‑1‑.01 Admissibility Rule For The Evidential Breath Alcohol Test Method
370‑1‑1‑.02 Evidential Breath Alcohol Testing Instrument Inspections (Repealed 8/11/03)
370‑1‑1‑.03 Blood, Urine, And Other Bodily Substances
370‑1‑1‑.04 Field Sobriety Screening Tests
370‑1‑1‑.05 Field Sobriety Screening Devices
Appendix

370‑1‑1‑.01 Admissibility Rule For The Evidential Breath Alcohol Test Method.

(1) Purpose. This rule addresses the statutory elements required for the admissibility of evidence obtained from Breath Alcohol Testing Instruments. This rule contains the METHOD, as referred to by §32‑5A‑194 Code of Ala. 1975, as amended, which insures and verifies that each individual Breath Alcohol Test is performed accurately and reliably. IN EVENT THAT ONE OF THESE REQUIREMENTS IS NOT FULFILLED, BREATH ALCOHOL TESTING EVIDENCE MAY STILL BE OFFERED THROUGH TRADITIONAL EVIDENTIARY PREDICATE as approved of in Ex parte Mayo, 652 So. 2d 201 (Ala. 1994).

(2) Definitions and Abbreviations.

(a) Acceptable Breath Sample. For the purpose of this rule the subject must provide the Draeger Alcotest 7110 MKIII with a breath sample of sufficient volume and duration, as required by the software to be accepted for analysis. Software versions prior to and including version 3.24 require the subject to provide a minimum of 1.5 liters of breath, for a minimum of 4.5 seconds. Software versions 3.25 or later require the subject to provide a minimum of 1.3 liters of breath, for a minimum of 4.0 seconds.

(b) Accuracy Check Fail. When the Calibration Check results are outside the programmed parameters of the Draeger Alcotest 7110 MKIII, the instrument will abort the testing sequence.

(c) Admin. Breath Temperature Correction. Administrative Breath Temperature Correction can result in an administrative lowering of the reported Breath Alcohol Result. When the Draeger Alcotest 7110 MKIII determines a subject’s Breath Temperature is not 34.0oC an adjustment to the reported value will be made. When the Breath Temperature is above 34.0oC the adjustment will result in a lower reported Breath Alcohol Concentration.

(d) Alcohol. For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.

(e) Air Blank Check. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument verifies that the analytical pathway is free of contamination.

(f) Ambient Air Check. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument verifies that the air used to purge the analytical pathway was free of contamination.

(g) Ambient Air Fail. The Draeger Alcotest 7110 MKIII will terminate a Breath Testing Sequence when the detector systems respond to ethanol or other substances in the room air.

(h) Blowing Not Allowed. Only when the “PLEASE BLOW” message appears will the Draeger Alcotest 7110 MKIII accept a subject breath sample. Any breath sample provided to the Draeger Alcotest 7110 MKIII at any time other than when prompted to do so will not be accepted by the instrument.

(i) Blowing Time Too Short. When a breath sample is provided to the Draeger Alcotest 7110 MKIII that is sufficient in volume but deficient in duration, as required by the software, the instrument will not accept the sample.

(j) Br‑Temp Meas Not Ok. Breath Temperature Measurement Not Ok occurs when the difference between the two Breath Temperature thermistor values is outside the specified range for a single breath sample.

(k) Breath Alcohol Test. For the purpose of this rule, two (2) acceptable breath samples in conjunction with two diagnostic checks and two acceptable calibration checks shall constitute a Breath Alcohol Test.

(l) Calibration. The purpose of the calibration is to define the appropriate parameters to allow the instrument to accurately quantitate alcohol in a breath sample. The Draeger Alcotest 7110 MKIII does not calibrate itself at the time of the test; calibration is performed at the Alabama Department of Forensic Sciences laboratory and subsequently verified at the time of the test with dry gas standards.

(m) Calibration Check. For the purpose of this rule, a calibration check is the automated process whereby the Draeger Alcotest 7110 MKIII samples and tests a known dry gas standard to verify the instrument's acceptable calibration.

(n) Certificate of Analysis. For the purpose of this rule, the Certificate of Analysis is the document generated by the Draeger Alcotest 7110 MKIII for introduction of Breath Alcohol Test results to the Courts. By design, when the Certificate of Analysis indicates a numerical value for the subject’s Breath Alcohol Concentration, the Certificate of Analysis is confirmation of successful method completion.

(o) Chemical Analysis. For the purpose of this rule, chemical analysis is the separation of a substance into its constituent elements to determine either their nature or their portions. The goal as set forth in §32‑5A‑194 Code of Ala. 1975, as amended, is the chemical analyses of a person's breath to determine the presence and quantity of alcohol (ethanol).

(p) Data Pack. The Data Pack contains the supporting data for the Certificate of Analysis as referred to at the bottom of that document. By design, the Data Pack along with the Subject Mis‑Try file, and when needed the IR Curves, EC Profile Plot, and Flow Profile Plot, constitute “…full information concerning the test or tests shall be made available to him or his attorney…” as referred to by §32‑5A‑194(a)(4) Code of Ala. 1975, as amended.

(q) Draeger. For the purpose of this rule, Draeger is the appropriate English translation of the German name Dräger.

(r) Deprivation Period. For the purpose of the METHOD as referred to by §32‑5A‑194 Code of Ala. 1975, as amended, prior to submitting to a Breath Alcohol Test a person should not be allowed to put anything in their mouth for at least 20 minutes.

(s) EC. For the purpose of this rule, EC will be the abbreviation for the electrochemical cell detector utilized by the Draeger Alcotest 7110 MKIII.

(t) EC Profile Plot. For the purpose of this rule, the EC Profile Plot is a plot utilized by the Draeger Alcotest 7110 MKIII that depicts EC Detector signal for a given breath sample.

(u) Flow Profile Plot. For the purpose of this rule, the Flow Profile Plot is a plot utilized by the Draeger Alcotest 7110 MKIII that depicts breath sample flow into the instrument.

(v) Forensic Edits. In the event an operator incorrectly input clerical data as requested by the Breath Alcohol Testing method, this information can be corrected by the following procedure: the operator should strike through the incorrect data (preferably a single strike leaving the original data legible), insert the correct data, and initial and date the correction.

(w) Interference. When the detector systems of the Draeger Alcotest 7110 MKIII respond to a substance other than alcohol (ethanol, ethyl alcohol), the instrument will terminate the test.

(x) IR. For the purpose of this rule, IR will be the abbreviation for the infrared detector utilized by the Draeger Alcotest 7110 MK III.

(y) IR Curve. For the purpose of this rule, the IR Curve is a plot of the infrared detector data utilized by the Draeger Alcotest 7110 MK III for a given breath sample.

(z) Method. For the purpose of this rule a method is an orderly and systematic approach to accomplishing a goal. The goal as set forth in §32‑5A‑194 Code of Ala. 1975, as amended, is the chemical analyses of a person's breath to determine the presence and quantity of alcohol (ethanol). Therefore the method refers only to those tasks, manual or automated, which occur at the time of the breath test and result in accurately identifying and quantifying the amount of alcohol on a particular person’s breath. The method in its entirety is performed and confirmed at the time of the breath test.

(aa) Minimum Volume Not Achieved. When a breath sample is provided to the Draeger Alcotest 7110 MKIII that is deficient in volume, as required by the software, the instrument will reject the sample.

(ab) Mouth Alcohol. When a breath sample contains a measurable amount of alcohol originating from the mouth, and is higher in concentration than the end expiratory air, the Draeger Alcotest 7110 MKIII will determine the sample to contain residual mouth alcohol. Once the presence of residual mouth alcohol has been determined the instrument will suspend the testing sequence for twenty (20) minutes. The testing sequence will resume at the end of the twenty‑minute wait preserving all clerical data entries.

(ac) Out of Measuring Range. When the alcohol concentration of a breath sample exceeds 0.45 g/210L the instrument will abort the testing sequence.

(ad) Operator. For the purpose of this rule, an operator is an employee of a law enforcement agency possessing a valid permit (active permit number) and who is in control of the Draeger Alcotest 7110 MKIII during a testing sequence. The operator also acts as a “FACT” witness with regard to instrument operation in any litigation arising from the breath test. As stated by the Court in Stubstad v. City of Orange Beach, 575 So.2d 1240 (Ala.Cr.App. 1991), the operator need not be an expert on the mechanical functioning of the instrument.

(ae) Permit. For the purpose of this rule, a permit is an electronic mechanism for controlling access to a Breath Alcohol Testing Instrument through a unique operator permit number. Confirmation of an operator's active status as well as pending expiration date is designated on the Certificate of Analysis.

(af) Purging. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument cycles fresh air through the instrument analysis path to cleanse the pathway of the last sample analyzed.

(ag) Refusal. The operator may elect to end an incomplete test by declaring the subject has refused to provide two complete and acceptable samples. Refusal indicates the operator believes the subject to be intentionally obstructing the collection of evidence via the breath sample. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument cannot make the decision for the operator that any unacceptable subject breath sample or sequence of unacceptable subject breath samples constitutes a subject refusal. After each unacceptable subject breath sample the operator has the opportunity to determine by which of the following three options the testing sequence will proceed: <1> REFUSAL <2> UNABLE <3> RESTART TEST. In event circumstances require abruptly ending the testing sequence with a refusal, the operator may select at the "PLEASE BLOW" prompt.

(ah) Standard Gas Supply. Failure of one of the two dry gas samples to be delivered to the Draeger Alcotest 7110 MKIII for analysis will result in the termination of the testing sequence.

(ai) Subject “Mis‑Try”. A subject “Mis‑Try” is a breath sample that failed to meet the acceptable criteria as determined by the Draeger Alcotest 7110 MKIII. A record of the attempted breath sample is preserved in the Subject “Mis‑Try” file.

(aj) Unable. The operator may elect to end an incomplete test by declaring the subject is unable to provide two complete and acceptable samples. Unable indicates the operator believes the subject to be incapable of providing the required breath sample and thereby is not intentionally obstructing the collection of evidence via the breath sample. The Draeger Alcotest 7110 MKIII Breath Alcohol Testing Instrument cannot assess the subject’s physical condition for the operator. After each unacceptable subject breath sample the operator has the opportunity to determine by which of the following three options the testing sequence will proceed: <1> REFUSAL <2> UNABLE <3> RESTART TEST.

(3) Approved Evidential Breath Alcohol Instrument List.

(a) Alcotest 7110 MKIII, Draeger Safety, Inc., Durango CO. For the purpose of this rule, variations or enhancements that do not have any bearing on the alcohol measuring capability of the instrument, such as the addition of a modem designated as an Alcotest 7110 MKIII C, are approved.

(4) Approved Evidential Breath Alcohol Test Method.

(a) The method of operation of the Draeger Alcotest 7110 MKIII is software driven and controlled so as not to be influenced by operator technique. The method requires the operator to input the following clerical data (steps 1‑18) as prompted. It is appropriate for the operator to enter a “‑“ for steps 6.(i), 6.(ii), 6(iii), 6.(iv), 6.(v), and 10 ‑ 16 when the requested information cannot be obtained. Omission of an entry in any field will prevent the completion of the Breath Alcohol Testing method.

1. PERMIT NO. (NUMBER): The operator must enter and confirm his/her unique Draeger permit number.

2. <1> DUI <2> ADMIN <3> DEMO: The operator must select the type of testing routine to be administered to the subject.

3. ENTER DRY GAS STND (STANDARD) #1 PRESSURE: The operator must observe and record the pressure from the gas regulator gauge on dry gas standard #1 (0.020 g/210L ethanol standard). It should be noted that the gas pressure has no bearing on the analytical result obtained from the DUI testing routine.

4. ENTER DRY GAS STND (STANDARD) #2 PRESSURE: The operator must observe and record the pressure from the gas regulator gauge on dry gas standard #2 (0.080 g/210L ethanol standard). It should be noted that the gas pressure has no bearing on the analytical result obtained from the DUI testing routine.

5. 20 MIN (MINUTE) DEPRIVATION PERIOD: The operator must confirm that the subject has been under the control of the arresting officer, the operator, and/or other employee of a law enforcement agency for a minimum of 20 minutes. Enter “Y” for yes or “N” for no.

6. ARREST OFFICER SAME AS OPERATOR: The operator must designate whether the breath test operator is or is not the arresting officer. Enter “Y” for yes or “N” for no. If the arresting officer is not the breath test operator then the following information identifying the arresting officer will also be required.

(i) ARREST OFFICERS LAST NAME: The operator must enter the last name of the arresting officer.

(ii) ARREST OFFICERS FIRST NAME: The operator must enter the first name of the arresting officer.

(iii) ARREST OFFICERS MIDDLE INITIAL: The operator must enter the middle initial of the arresting officer.

(iv) ARREST OFFICERS IDENTIFICATION NUMBER: The operator must enter the agency identification number of the arresting officer.

(v) ARREST OFFICERS AGENCY: The operator must enter the agency of the arresting officer.

7. TIME OF OFFENSE: The operator must enter the date and time of the offense using the following format .

8. COUNTY OF OFFENSE: The operator must enter the county in which the offense occurred.

9. SUBJECT’S UTC (UNIFORM TRAFFIC COMPLAINT NUMBER): The operator must enter the subject’s Uniform Traffic Complaint number.

10. SUBJECT LAST NAME: The operator must enter the subject’s last name.

11. SUBJECT FIRST NAME: The operator must enter the subject’s first name.

12. SUBJECT MIDDLE INIT (INITIAL): The operator must enter the subject’s middle initial.

13. SUBJECT STREET ADDR/APT (ADDRESS/APARTMENT): The operator must enter the subject’s street or apartment address.

14. SUBJECT TOWN/CITY: The operator must enter the subject’s town or city of residence.

15. SUBJECT STATE: The operator must enter the subject’s state of residence using appropriate two‑letter designation.

16. SUBJECT DL# (DRIVER’S LICENSE NUMBER) OR SS# (SOCIAL SECURITY NUMBER): The operator must enter the subject’s driver’s license number, Alabama file number, social security number or Alabama I.D. number.

17. SUBJECT (MALE/FEMALE): The operator must designate the subject’s gender using “M” for male and “F” for female.

18. SUBJECT DOB (DATE OF BIRTH): The operator must designate the subject’s date of birth using the format . An entry of 01/01/1900 will be used when the subject’s date of birth cannot be obtained.

(b) Upon completion of clerical data entry the Draeger Alcotest 7110 MKIII continues the Breath Alcohol Testing method by performing or displaying the following automated steps or messages.

1. PURGING

2. AMBIENT AIR CHECK

3. AIR BLANK CHECK

4. ACCURACY CHECK (0.020 g/210L)

5. PURGING

6. AMBIENT AIR CHECK

7. AIR BLANK CHECK

8. INSERT MOUTHPIECE, PRESS BUTTON (Operator Task)

9. PLEASE WAIT

10. PLEASE BLOW (First Subject Sample)

11. STOP

12. REMOVE MOUTHPIECE

13. PURGING

14. AMBIENT AIR CHECK

15. AIR BLANK CHECK

16. PLEASE WAIT

17. PURGING

18. AMBIENT AIR CHECK

19. AIR BLANK CHECK

20. INSERT MOUTHPIECE, PRESS BUTTON (Operator Task)

21. PLEASE WAIT

22. PLEASE BLOW (Second Subject Sample)

23. STOP

24. REMOVE MOUTHPIECE

25. PURGING

26. AMBIENT AIR CHECK

27. AIR BLANK CHECK

28. ACCURACY CHECK (0.080 g/210L)

29. PURGING

30. AMBIENT AIR CHECK

31. AIR BLANK CHECK

32. RESULT

33. DATA STORED

(5) Report of Breath Alcohol Test Result.

(a) The Certificate of Analysis produced for each individual Breath Alcohol Test is confirmation of successful METHOD completion when an analytical result (number) is obtained. For a Breath Alcohol Test result to be reported, indicating successful METHOD completion, the following steps must be performed.

1. “DIAGNOSTIC CHECKS BEFORE AND AFTER OK”: An automated internal diagnostic check is performed by the Draeger Alcotest 7110 MKIII one hundred twenty eight (128) times per second. For each Breath Alcohol Test, the Draeger Alcotest 7110 MKIII stores in memory a record of a single diagnostic “Snap Shot” before the first subject sample is collected and after the second subject sample is collected.

2. “CALIBRATION CHECKS BEFORE AND AFTER OK”: An automated calibration check is performed before the first subject sample is collected and after the second subject sample is collected to verify the calibration of the Draeger Alcotest 7110 MKIII at the time of the breath test. A 0.020 g/210L ethanol standard is introduced into the instrument before the first subject sample is collected. An acceptable result of 0.015 to 0.025 g/210L will allow the Breath Alcohol Test to proceed. A 0.080 g/210L ethanol standard is introduced into the instrument after the second subject sample is collected. An acceptable result of 0.076 to 0.084 g/210L must be obtained before the results of the Breath Alcohol Test will be reported. When results obtained from the calibration checks are not within the stated acceptable ranges, the “Certificate of Analysis” obtained from the Draeger Alcotest 7110 MKIII will indicate ACCURACY CHECK FAIL and no numerical result will be reported at the time of the breath test..

3. "INSPECTION BEFORE AND AFTER TEST OK": Completed Diagnostic Checks and Calibration Checks verify instrument accuracy and reliability and therefore constitute a time of test inspection. When a condition exist which prevents the completion of either the diagnostic checks or the calibration checks the "Certificate of Analysis" will not bear this statement.

4. “THE SUBJECT MUST COMPLETE A DEPRIVATION PERIOD OF AT LEAST TWENTY MINUTES BEFORE PROVIDING THE FIRST BREATH SAMPLE”. An operator must attest that reasonable efforts were made by an employee of a law enforcement agency to deprive the subject of putting potentially interfering substances in their mouth. In event the operator becomes aware of potentially interfering substances in the mouth, the deprivation period should be restarted.

5. “TWO ACCEPTABLE BREATH SAMPLES WERE ANALYZED, THE LOWEST RESULT IS REPORTED”. The subject must provide two acceptable breath samples for analysis. The lowest alcohol result generated from each breath sample must agree within 0.020 g/210L of breath. If the alcohol results from the two breath samples do not agree within 0.020 g/210L of breath, the instrument will begin a second breath sample collection sequence. Failure to provide two (2) acceptable breath samples for the second breath sampling sequence will constitute a refusal of the whole test. When the results of two acceptable breath samples do agree within 0.020 g/210L of breath, the Draeger Alcotest 7110 MKIII will report the lowest result truncated to the second decimal place.

6. When the subject provides a breath sample that does not meet the minimum acceptable criteria or when not prompted to do so, one of the following errors will be recorded in the Subject “Mis‑Try” file: “Minimum Volume Not Achieved”, “Blowing Time Too Short”, or “Blowing Not Allowed”. When the Draeger Alcotest 7110 MKIII determines a sample or samples to be unacceptable the operator has the opportunity to determine by which of the following three options the testing sequence will proceed: <1> REFUSAL <2> UNABLE <3> RESTART TEST.

(b) Four copies of the Certificate of Analysis will be generated each bearing the statement “SUPPORTING DATA FOR THIS DOCUMENT IS AVAILABLE UPON WRITTEN REQUEST TO THE ALABAMA DEPARTMENT OF FORENSIC SCIENCES, IMPLIED CONSENT SECTION”. The supporting data or information as referred to in §32‑5A‑194(a)(4) Code of Ala. 1975, as amended, for the Certificate of Analysis consists of the “Data Pack”, “Subject Mis‑Try File”, and when needed IR Curves, EC Profile Plot, and Flow Profile Plot.

(6) Qualifications: An applicant must satisfactorily complete a new operator's course in the operational procedures of the Breath Alcohol Testing Instrument and be an employee for one of the agencies listed in §32‑5A‑194, Code of Ala. 1975, as amended.

(7) Permits:

(a) Permits to perform a chemical analysis of a person's breath pursuant to §32‑5A‑194, Code of Ala. 1975, as amended, will be issued by the Director of the Department of Forensic Sciences upon the recommendation of the Technical Director of the Implied Consent Section of the Department of Forensic Sciences.

(b) Permits issued to new operators will automatically expire at the end of the succeeding calendar year.

(c) Operator permit status can remain active by satisfactorily completing a continuing education session each calendar year and by being an employee for one of the agencies listed in §32‑5A‑194, Code of Ala. 1975, as amended. The permit of an operator failing to complete a continuing education session any year after their new operator's course will automatically expire at the end of that calendar year.

(d) An operator who fails to attend a continuing education session may be reactivated provided they attend a continuing education session within two calendar years. Any operator who remains inactive for more than two successive calendar years must attend a new operator’s class to be reinstated.

(e) Any action or practice which is misleading or deceptive, or the violation of any of the rules of the Alabama Department of Forensic Sciences promulgated under the provisions of §32‑5A‑194, Code of Ala. 1975, as amended, shall constitute grounds upon which the Director may revoke such permit.

(f) If the Director receives a complaint or has reason to believe that an operator is participating in misleading or deceptive practices, violating or has violated any of the rules, he shall notify the operator that a hearing to determine if the alleged infraction has occurred. The Director will designate a place and time for the hearing.

(g) The Director or his designee shall conduct the hearing.

(h) Upon revocation of a permit, the Director shall notify the operator, the operator's immediate superior and the Technical Director of the Implied Consent Section of the Alabama Department of Forensic Sciences.

Relevant Cites:

Designated Instrument: Harper v. City of Troy, 467 So.2d 269 (Ala.Cr.App. 1985)

Method: McDaniel v. State, 706 So. 2d 1305, (Ala.Crim.App. 2001).

Predicate: Ex parte Mayo, 652 So. 2d 201 (Ala. 1994); Ex Parte Vizzina, 533 So.2d 269,271 (Ala. 1988); Ex Parte Bush, 474 So.2d 168 (Ala. 1985); Moore v. State, 442 So.2d 164, 167 (Ala.Cr.App.1983); Patton v. City of Decatur, 337 So.2d 321 (Ala.1976); McGough v. Slaughter, 395 So.2d 972, 977 (Ala.1981).

Testimony: Stubstad v. City of Orange Beach, 575 So.2d 1240 (Ala.Cr.App. 1991)
Author: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §§32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed December 4, 1998: effective January 8, 1999. Amended: Filed May 7, 1999; effective June 11, 1999. Amended: Filed July 7, 2003; effective August 11, 2003. Amended: Filed June 4, 2004; effective July 9, 2004.

370‑1‑1‑.02 Evidential Breath Alcohol Testing Instrument Inspections. (Repealed 8/11/03)
Author: Department of Forensic Sciences
Statutory Authority: Code of Ala. 1975, §§32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Alabama Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed December 4, 1998; effective January 8, 1999. Amended: Filed May 7, 1999; effective June 11, 1999. Repealed ‑ Appendices A, B and D also: Filed July 7, 2003; effective August 11, 2003.

370‑1‑1‑.03 Blood, Urine And Other Bodily Substances.

(1) Purpose. This rule describes the statutory elements required for the admissibility of evidence obtained from chemical analyses of a person’s blood, urine, or other bodily substance. This rule contains the METHODS as referred to by §32‑5A‑194 Code of Ala. 1975, as amended, that insures and verifies each chemical analysis is performed accurately and reliably. IN THE EVENT THAT ONE OF THESE REQUIREMENTS IS NOT FULFILLED, CHEMICAL ANALYSIS EVIDENCE MAY STILL BE OFFERED THROUGH TRADITIONAL EVIDENTIARY PREDICATE as described in Powell v. State, 515 So.2d 140 (Ala. Cr. App. 1986).

(2) Definitions and Abbreviations:

(a) Alcohol‑ For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.

(b) Method‑ For the purpose of this rule, a method is an orderly and systematic approach to accomplishing a goal. The goal as set forth in §32‑5A‑194 Code of Ala. 1975, as amended, is the chemical analyses of a persons blood, urine or other bodily substance to determine the presence and quantity of alcohol (ethanol) or other chemical substances. Therefore the method refers only to those tasks, manual or automated, that result in accurately identifying and quantifying the amount of alcohol or other chemical substance in a particular person’s blood or urine.

(c) Permit‑ For the purpose of this rule, a permit is authorization by the Director allowing an employee to analyze blood, urine, or other bodily substances for alcohol, drugs, or other chemical entities. By assigning a qualified employee this particular task the Director has expressed authorization.

(3) Qualifications. Applicants for a permit to perform a chemical analysis of a person’s blood, urine, or other bodily substance pursuant to the Alabama Chemical Test for Intoxication Act shall meet the following requirements.

(a) Be employed as a Forensic Scientist by the Alabama Department of Forensic Sciences and be assigned to the Toxicology Section or Implied Consent Section by the Director.

(b) Have been approved by the Toxicology Section Discipline Chief to perform analyses on blood, urine, or other bodily substance analyses for the purpose of identification and quantitation of alcohol and/or other drugs.

(4) Certification Permits.

(a) Permits to perform a chemical analysis of a person’s blood, urine, or other bodily substance pursuant to the Alabama Chemical Test for Intoxication Act will be issued by the Director and certified by the Toxicology Section Discipline Chief..

(b) Once issued, permits will remain effective concurrent with the term of employment of the individual. At the Directors discretion permits may be rescinded.

(5) Methods.

(a) Analysis of blood, urine, or other bodily substances for the presence of volatile compounds; such as alcohol (ethanol), shall be performed by Gas Chromatography utilizing internal standard headspace injection, in accordance with the Toxicology Section’s Standard Operating Procedure for that analysis.

(b) Analysis of blood, urine, or other bodily substances for drugs or other chemical substances will utilize a screening technology in conjunction with Gas Chromatography Mass Spectrometry confirmation, in accordance with the Toxicology Section’s Standard Operating Procedure for that analysis.
Authors: Dale A. Carpenter, Jack R. Kalin
Statutory Authority: Code of Ala. 1975, §32‑5A‑194, as amended.
History: New Rule: Filed December 7, 1994; effective January 11, 1995. Amended: Filed October 10, 1995; effective November 11, 1995. (This function was transferred by Act No. 88‑660 to the Alabama Department of Forensic Sciences, May 13, 1988.) Amended: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.

370‑1‑1‑.04 Field Sobriety Screening Tests.

(1) Purpose. This rule describes the approved TECHNIQUE (Procedure) as referred to by §32‑6‑49.13 Code of Ala. 1975, as amended, that insures each Field Sobriety Screening Test performed on an operator of a commercial vehicle is performed in a standardized and reliable fashion.

(2) Definitions and Abbreviations.

(a) Alcohol‑ For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.

(3) Approved Procedure. The test battery comprising the Horizontal Gaze Nystagmus (HGN), One‑leg Stand (OLS), and Walk and Turn (WAT) Field Sobriety Tests as described and applied according to the DUI Detection and Standardized Field Sobriety Testing Student Manual, Publication HS178, Transportation Safety Institute, National Highway Traffic Safety Administration, U.S. Department of Transportation in its June, 1992 or successor printings.

(4) Training Certificates. A certificate will be issued to each officer who successfully passes written and practical examinations during a minimum of 16 hours of Standardized Field Sobriety Test Training which included no less than two controlled drinking workshops using volunteer drinkers and wherein the administration and interpretation of the HGN, OLS, and WAT tests was presented.
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: §32‑6‑49.13, as amended.
History: New Rule: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.

370‑1‑1‑.05 Field Sobriety Screening Devices.

(1) Purpose. This rule list the approved “FIELD BREATHALYZER or OTHER APPROVED DEVICE” as referred to by §32‑6‑49.13 Code of Ala. 1975, as amended. Additionally, this rule describes training requirements and minimal operational criteria necessary for accurate and reliable results.

(2) Definitions and Abbreviations:

(a) Alcohol. For the purpose of this rule, use of the term alcohol shall refer to ethanol or ethyl alcohol unless otherwise specified.

(b) Observation. For the purpose of this rule, use of the term observation shall mean to watch. Prior to the administration of a field sobriety screening test employing an approved field sobriety screening device a subject must be under the observation of the arresting officer for a period of not less than twenty minutes.

(3) Approved Training. Training afforded by the manufacturer of an approved device and/or training received as a part of the Alabama Preliminary Breath Testing Instrument course shall constitute approved training.

(4) Operation of Devices.

(a) Officers shall use the device according to the manufacturer’s operational procedure.

(b) Every subject must be under observation by the arresting officer for a period of twenty minutes before the screening device test is administered.

(5) Calibration. Calibration shall be checked every twelve (12) months. The device passes the calibration check if it renders a reading between 0.030 g/210L and 0.050 g/210L inclusive on a 0.040 g/210L percent standard delivered from either a wet bath simulator or a dry gas cylinder.

(6) Training and Calibration Records. It shall be the responsibility of each law enforcement agency to maintain permanent records documenting the training of each officer in the use of approved field sobriety screening devices and the annual calibration check results on each device in use by the law enforcement agency.

(7) Approved Field Sobriety Screening Device List.

NOTE: For the purpose of this rule, variations or enhancements that do not have any bearing on the alcohol measuring capability of the instrument, such as the addition of a modem, external printer or passive sampling systems are approved.

(a) Alco‑Sensor III (Device Model)
Intoximeters, Inc., Saint Louis, MO (Manufacturer)

(b) Alco‑Sensor IV (Device Model)
Intoximeters, Inc., Saint Louis, MO (Manufacturer)

(c) Alcotest 7410 (Device Model)
Draeger Safety, Inc., Durango CO (Manufacturer)

(d) Lifeloc FC‑10 (Device Model)
Lifeloc Technologies, Wheat Ridge, CO (Manufacturer)

(e) Lifeloc FC‑20 (Device Model)
Lifeloc Technologies, Wheat Ridge, CO (Manufacturer)

(f) Intoxilyzer 300 (Device Model)
CMI, Inc., Owensboro, KY (Manufacturer)

(g) S‑D2 (Device Model)
CMI, Inc., Owensboro, KY (Manufacturer)
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §32‑6‑49.13, as amended.
History: New Rule: Filed July 24, 1996; effective August 28, 1996. Amended: Filed July 7, 2003; effective August 11, 2003.
Appendix A

Evidential Breath Alcohol Testing Quality Control.

Purpose.

The purpose of this section is to inform the public of the quality control or good laboratory practices that are utilized by the Alabama Department of Forensic Sciences to support Breath Alcohol Testing in the field. The practices described in this section only demonstrate that each Draeger Alcotest 7110 MKIII is capable of performing as expected. The method as described in 370‑1‑1‑.01(4) is the only sequence of steps that isolates alcohol (ethanol) from a subject to accurately determine the amount. Subsequently the quality control built into the method is the only process that verifies a particular Breath Alcohol Test did indeed perform as expected. Since the authority derived from §32‑5A‑194 Code of Ala. 1975, as amended, is limited to a method to perform a chemical analysis to determine the alcoholic content of a subjects blood the following information pertaining to good laboratory practice does not constitute a rule.

(1) Pre‑installation Evaluation. Each Draeger Alcotest 7110 MKIII is evaluated by the Alabama Department of Forensic Sciences Technical Director or his designee prior to being placed in operation. The evaluation will demonstrate the ability of each Draeger Alcotest 7110 MKIII to identify and flag specific conditions; as well as, verify the analytical integrity of the instrument.

(a) Purging Error. Place the instrument in the “Error Check” mode. Restrict the air flow into the ambient air inlet while the pump is running. This will prompt the instrument to display “Check Sampling Hose” and sound an audible alarm. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(b) Minimum Volume Not Achieved. Place the instrument in the “Error Check” mode. At the prompt “Please Blow”, deliver a deficient sample volume. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(c) Blowing Time Too Short. Place the instrument in the “Error Check” mode. At the prompt “Please Blow”, deliver a sample of sufficient volume and deficient duration. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(d) Blowing Not Allowed. Place the instrument in the “Error Check” mode. At any time other than when the instrument indicates “Please Blow” deliver a sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(e) Ready To Blow Expired. Place the instrument in the “Error Check” mode. At the prompt “Please Blow” do not provide a sample. After three (3) minutes has elapsed this error will be triggered by the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(f) Ambient Air Check. Place the instrument in the “Error Check” mode. When the instrument begins to purge itself, direct an ethanol vapor (typically from a 0.020 g/210L dry gas cylinder) near the breath hose inlet, but not directly into the breath hose inlet. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(g) Interference. Place the instrument in the “Error Check” mode. Prepare a methanol control by adding 105 microliters of methanol to 500 milliliters of distilled water and dispense into a simulator. At the prompt “Please Blow”, deliver a sufficient sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(h) Mouth Alcohol. Place the instrument in the “Error Check” mode. At the prompt “Please Blow” the evaluator should rinse his or her mouth with a common mouthwash containing ethanol, then deliver a sufficient sample into the instrument. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(i) Accuracy Check Fail. Place the instrument in the “Error Check” mode. Connect the 0.020 g/210L dry gas cylinder to the 0.080 g/210L gas port and initiate a test. Record pass if the message “Error Triggered, Test Okay” is printed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(j) Standard Gas Supply. Disconnect the dry gas cylinders from the instrument and initiate a test. Record pass if the message “Stnd Gas Supply” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(k) Outside +/‑ Tolerance. Initiate an administrative test sequence. At the prompt “Please Blow” deliver a sufficient sample. When prompted to deliver the second sample, deliver a sufficient sample which varies in concentration from the first by at least 0.021 g/ 210 L. Record pass if the message “Outside +/‑ Tol” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(l) No Admittance. The evaluator should attempt to initiate a restricted function without the use of an appropriate key. Record pass if the message “No Admittance” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(m) Linearity Check. Utilizing manufactured solutions prepare simulators with the following ethanol concentrations: 0.000g/210L, 0.020g/210L (+/‑ 0.005 g/210L), 0.040 g/210L (+/‑ 0.005 g/210L), 0.080 g/210L (+/‑ 5%), 0.120 g/210L (+/‑ 5%), 0.200 g/210L (+/‑ 5%), and 0.500 g/210L (+/‑ 5%). Place the instrument in the “Acc‑Check” mode. When instructed, connect the appropriate simulator to the instrument. Repeat this procedure three times for each ethanol control. Average the results obtained for each concentration from the three runs. To record pass, the average results must fall within the following parameters: 0.000 g/210L, 0.020 g/210L (+/‑ 0.005 g/210L), 0.040 g/210L (+/‑ 0.005 g/210L), 0.080 g/210L (+/‑ 5%), 0.120 g/210L (+/‑ 5%), 0.200 g/210L (+/‑ 5%), and 0.500 g/210L (+/‑ 5%). If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specifications.

(n) Breath Temperature Check. Place the instrument in “ABA” mode. Initiate a testing sequence consisting of three breath samples. When instructed to do so deliver three breath samples into the instrument from a precisely controlled water bath apparatus adjusted to a temperature of approximately 34.0oC. Repeat this procedure using a precisely controlled water bath apparatus adjusted to a temperature of approximately 37.0oC. Record pass if the instrument records a temperature within +/‑ 0.3oC of the actual temperature. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.

(o) Acetone Interference Check. Prepare a solution consisting of 500 milliliters of a manufactured 0.080 g/210L solution of ethanol and 950 microliters of Acetone in a simulator. Initiate an administrative test sequence. At the prompt “Please Blow”, deliver a sufficient sample into the instrument. Record pass if the message “Interference” is displayed. If the error is not triggered initiate the necessary corrective actions to restore the instrument to proper working condition.

(p) Voltage Range Check. Verify the Draeger Alcotest 7110 MKIII’s performance capability throughout a voltage range of approximately 90‑200 volts AC and 12 volts DC.

1. With the instrument connected to a variable AC power supply, adjust the voltage to approximately 90 volts AC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specification.

2. With the instrument connected to a variable AC power supply, adjust the voltage to approximately 220 volts AC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass, initiate the necessary corrective actions to achieve the desired specification.

3. With the instrument connected to a DC power supply, adjust the voltage to approximately 12 volts DC. Initiate a standard check sequence consisting of three measurements of a 0.080 g/210L dry gas standard. Record pass if the instrument records an average result between 0.076‑0.084 g/210L. If the instrument does not pass initiate the necessary corrective actions to achieve the desired specification.

(q) Barometer Check. Establish communication with the instrument in the diagnostic screen mode. Compare the barometric pressure as indicated by the instrument to the laboratories barometer. Record pass if the difference between the two readings is not greater than 5%. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.

(r) Standard Deviation Check. Initiate a standard check sequence consisting of ten measurements of a 0.080% dry gas standard. Record pass if the instrument records the following: an average result between 0.076‑0.084 g/210L and a standard deviation of less than 0.0025. If the instrument does not pass initiate the necessary corrective actions to restore the instrument to proper working condition.

(2) Data Download Review. The Test Data collected and stored by each Draeger Alcotest 7110 MKIII in the field is transferred to the Alabama Department of Forensic Sciences. Upon transfer, the data is systematically reviewed to identify instrument problems and to perform trend analyses. This data transfer allows the Alabama Department of Forensic Sciences to review essentially 100% of the Breath Alcohol Tests performed statewide.

(a) Communication Check. The Draeger Alcotest 7110 Data Retrieval and Archiving Program produces a Summary of Automatic Data Retrieval. The summary readily identifies those instruments for which communication was not established. For those instruments that automatic communication was unsuccessful, manually establish communication. If communication problems persist investigate the source of the problem and document.

(b) Message Check. Open the Message File (50 File) to identify the automatic Instrument Messages and Operator Messages retrieved by the current download. Review the messages to determine the needs of the instrument, operator, or location (supplies). Document any actions taken.

(c) Instrument Parameter Check. Open the Data File (10 File) to identify Instrument Parameter data retrieved by the current download. Isolate the data corresponding to each of the following parameters collected before and after the subject samples for review: Ambient Air Pressure, 12V DC Power Supply, Battery Voltage, IR Signal, EC Offset, Cuvette Temperature, Breath Hose Temperature, Breath Probe Temperature, Breath Temperature Thermistors, Flow Sensor, Pre‑Test Diagnostic Check, and Post‑Test Diagnostic Check. For each parameter identify when if any an instrument recorded a result outside the specified operating range. Investigate the source of any problem and document any corrective action.

(d) Dry Gas Configuration Check. Open the Data File (10 File) to identify the Dry Gas Configuration data retrieved by the current download. Isolate the data corresponding to each of the following categories for review: 0.02 Gas Lot Number, 0.02 Gas Expiration Date, 0.08 Gas Lot Number, 0.08 Gas Expiration Date, 0.02 Target Concentration, 0.02 Relative Tolerance, 0.02 Absolute Tolerance, 0.08 Target Concentration, 0.08 Relative Tolerance, and 0.08 Absolute Tolerance. For each category identify if the instrument contains the correct configuration. Investigate any discrepancy and document any corrective action.

(e) Error and Accuracy Check. Open the Data File (10 File) to identify the Error and Accuracy Check data retrieved by the current download. Isolate the data corresponding to each of the following errors or measurements: Error, Error 2, Error 3, Error 4, 0.02 gas data, and 0.08 gas data. For each category identify when if any an instrument recorded a result outside the specified operating range. Also review the 0.02 g/210L and 0.08 g/210L gas data to identify low or high trends. Investigate the source of any problem or trend and document any corrective action.

(3) Electronic Inspection. The Electronic Inspection serves primarily as a quality assurance role by being a back‑up inspection to the instrument set‑up procedures and Data Download Review. The Electronic Inspection also is an opportunity to evaluate instrument performance over an extended time frame.

(a) Diagnostic Screen Check. Initiate the Draeger Alcotest 7110 Data Retrieval and Archiving Program. Establish communication with the instrument through the Diagnostic Screen. Evaluate the following displayed parameters: Instrument Serial Number, Instrument Location, Firmware Version, Date, Time, Ambient Air Pressure, 12VDC Power Supply, Battery Voltage, IR Signal, EC Offset, Cuvette Temperature, Breath Hose Temperature, Breath Probe Temperature, Breath Temperature 1, Breath Temperature 2, Function Key, and Flow Sensor. Investigate any discrepancy and document any corrective action.

(b) Interactive Screen Check. Initiate the Draeger Alcotest 7110 Data Retrieval and Archiving Program. Establish communication with the instrument through the Interactive Screen. Evaluate the following displayed parameters: Measuring Units, Calibration Configuration, and Cylinder Pressure Limit. Investigate any discrepancy and document any corrective action.

(c) Calibration Check Plot. Open the Data File (10 File) to identify the Accuracy Check data retrieved by the instrument over the last 6 months. Plot the Accuracy Check data for both the 0.02 and 0.08 g/210L Accuracy Checks. Investigate the source of any problem or trend and document any corrective action.

(4) Annual Re‑Evaluation/Pre‑Installation Evaluation. Regardless of the performance of an instrument in the field each instrument will be brought back to the Alabama Department of Forensic Sciences laboratory once a year for evaluation. This evaluation will consist of the battery of tests described under (1) Pre‑Installation Evaluation.
Authors: Dale A. Carpenter, Mark A. Pevey, Gregory L. Turner
Statutory Authority: Code of Ala. 1975, §32‑6‑49.13, as amended.
History: New Appendix: Filed July 7, 2003; effective August 11, 2003.

Ed Note: Appendix is attached to Rule 370‑1‑1‑.01, as per certification filed July 7, 2003; effective August 11, 2003.

Ala.Code 1975 § 12-21-300 is now unconstitutional

2009-07-04T13:13:00.002-04:00

Melendez-Diaz v. Massachusetts was decided today by the United States Supreme Court. This much anticipated opinion clears up the debate about whether certificates prepared by a lab technician or similar person are admissible against a defendant in trial without the witness being present to actually testify about what the certificate says.It is very clear that lab reports are produced in anticipation of trial and they are in fact “testimonial” as defined by Crawford v. Washington and Davis v. Alaska. Those cases hold that the defendant has the right to confront the witnesses against him and that testimonial evidence shall not be admissible unless the witness is “unavailable” and the defendant has previously had the right to cross-examine the witness.Justice Scalia delivered the opinion of the court and was joined by Stevens, Souter, Thomas and Ginsburg. Justice Kennedy wrote the dissent and was joined by Roberts, Alito, and Breyer. The dissent argues that these reports should be exempt from the confrontation because they are not normal witnesses, they are neutral scientists. Justice Scalia does a masterful job of demonstrating what a bunch of garbage that is.
“Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter National Academy Report). And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.”
I really like the fact that Justice Scalia isn’t afraid to recognize that many times these “scientists” or other examiners are really playing for the home team. Several other rationales for allowing this in without making the witnesses come were made by the dissent and all of them were shot down as well. This really is simple…the defendant has the right to confront the witnesses against him so the prosecutor needs to bring them to court.Where do we go from here? The court gave it’s blessing to two different ways to handle these witnesses. Some states can require them in every case. Some states have laws that makes the prosecutor give notice of intent to introduce the certificates and then the defendant has to object. Either way will pass constitutional muster.As it relates to DUI cases, all blood and urine cases will need to have the witnesses from the lab there at trial. Additionally, I believe that this case invalidates Ala.Code 1975 § 12-21-300 et seq. These statute deal with testimonial evidence that the defendant has the right to confront. All lawyers need to read this case and be able to articulate the proper objections.

How can you defend drunk driving?

2009-02-28T08:40:00.003-05:00

It always surprises me how many people are outraged that I would defend someone accused by the police of a crime – particularly of drunk driving. Arrest increasingly means guilt, and there is a public perception of criminal defense attorneys as being obstructionist, nefarious and somehow unethical. Certainly, every defense attorney tires of the ubiquitous cocktail party question: “How can you defend guilty people?”

The answer to that question is complex, involving issues of possible innocence, inaccurate evidence, overcharging by the prosecutor, guarding constitutional rights, untrustworthy testimony, ensuring a fair trial, protection from unfair laws and harsh/illegal punishment — and just keeping the government honest. One of the better answers was provided some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Some fine day, you or someone close to you will be arrested and charged with a criminal offense. That person may or may not be innocent, but you will pray that he or she is defended against the overwhelming forces of the government by a competent attorney.

If that doesn’t do it, read To Kill a Mockingbird by Harper Lee.

Preliminary Breath Test Not Reliable

2009-02-28T08:38:00.002-05:00

A preliminary breath test (PBT) is a small handheld breath testing device used by police officers to determine whether or not to arrest a person for DUI. Typically, administration of the PBT follows field sobriety tests. Based upon a motorist’s performance of field sobriety tests and the results of the PBT, a police officer makes a determination to arrest or release the driver.

PBTs are also used to convict minors of “possessing” alcohol. When police are summoned to an underage party where they suspect minors have consumed alcohol, PBT testing results can be used to establish that a minor had consumed alcohol. Courts regularly accept these PBT results, concluding beyond a reasonable doubt that the minor had consumed alcohol based upon the test.

But what if the PBT establishes that a driver is under the legal limit?

Livingston County District Court Judge Theresa M. Brennan recently ruled that a person accused of driving drunk could not rely upon a preliminary breath test to establish his innocence. Despite the fact that this judge routinely relies upon PBTs to justify arrests and even to convict minors of consuming alcohol, Judge Brennan held that PBT results are “too unreliable” to disclose to jurors. Too unreliable? Or is it that Judge Brennan is so pro-prosecution that she feels it is undesirable to let an innocent man escape a wrongful conviction?

HGN: How reliable is the Horizontal Gaze Nystagmus test?

2009-02-28T08:36:00.002-05:00

“The Robustness of the Horizontal Gaze Nystagmus (HGN) Test,” an article by the top federal researcher of Standardized Field Sobriety Tests, Marcelline Burns, was supposed to be released in 2004. This study was supposed to explore different variations of the mysterious HGN eye test, where officers move a finger or pen before a person’s face, declaring the person drunk or sober in under a minute. The study was designed to explore the impact of varying speeds of moving the finger, whether holding the finger too high mattered, and if laying down could produce flawed results. But the study was never released in 2004. Or in 2005. Or in 2006…

In 2007, a lot of DUI defense lawyers started asking, “Whatever happened to that ‘robustness’ study those fellas in Washington were supposed to release?”

According to NHTSA, if a person has four or more clues out of six possible clues on the HGN eye test, they are correctly categorized as over 0.10 BAC. According to these folks, officers are correct 77% of the time, and police love nothing more than to talk about this “Gigmus” test before juries because it sounds so cool, like CSI. When the legal limit dropped to .08, the same researchers “proved” that the tests were accurate at the new lower limit without modification, and they even started to claim greater accuracy. In recent years, NHTSA has been claiming something akin to a nearly flawless ability to discriminate between drunk and sober people based solely upon the eye test.

Well, I kept looking for this robustness study because I’m stubborn, surfing the NHTSA site to see if the study was published. One naysayer claimed it would never be published because something didn’t sit well with the field sobriety gurus.

In March 2008, I came across a study claiming to be the so-called “robustness” study and reported my findings to DUI lawyers across the country. I flipped through it, and it essentially claimed that no matter how an officer does the test or under what conditions, the test can always prove that a person was drunk. I guess that is what “robustness” means. But I tend to disagree with the conclusions of the report since I see first hand how police officers screw the eye test up day after day. That, and I do not see how a study could be named four years before it is published, unless the researchers had a goal in mind and something to prove.

Jim Medley, a great Texas DUI lawyer (www.jimmedley.com), actually sat down and worked on the numbers based upon the raw data reported in the study. Apparently the NHTSA people did have something to prove, and they intentionally set out to do it regardless of the evidence.

Mr. Medley found that 67% of people tested by experienced police officers found sober people to be drunk even though the officers properly performed the test. When the test was improperlyperformed too fast, that number rose to 78%. It was even more alarming when Mr. Medley uncovered the fact that 92% of sober participants were declared intoxicated when the officers held the eyes too high or held the finger or pen too close to the eyes.

Steve Rubenzer, PhD, ABPP, (http://www.forensicsobrietyassessment.com) one of the nation’s leading field sobriety test experts in statistical analysis of field sobriety tests and the HGN test pointed out that 77% of sober people failed the HGN test overall, bringing us full circle to the original numbers touted by NHTSA. This leads one to wonder, “If the test was ever 77% accurate, how can it also be 77% inaccurate too?”

In 1996, Michigan courts acknowledged that the HGN test was scientifically acceptable and reliable without ever holding an evidentiary hearing. The courts jumped on a case where nobody understood the test, with the officer improperly describing how the test was supposed to be performed. See People v. Berger, 217 Mich. App. 213, 551 N.W.2d 421 (1996). Despite several motions and appeals, Michigan courts refuse to revisit the issue.

Road Block Procedures

2009-02-28T08:18:00.003-05:00

November 1990
DOT HS 807 656
The Use of Sobriety Checkpoints
for
Impaired Driving Enforcement
TRAFFIC SAFETY PROGRAMS
Office of Enforcement
and
Emergency Services

PREFACE
Impaired driving and impaired-related crashes constitute one of the nation's leading
health problems. These events result in more deaths each year than do total
homicides. The impact is particularly severe among young people, age 15-24, where
impaired driving is the leading cause of death. Clearly, impaired driving and impaired
related crashes constitute a major threat to the safety and well-being of the public. The
costs resulting from alcohol-related crashes should be recognized and weighed against
the costs and inconveniences associated with efforts to reduce them.
These guidelines have been designed to provide law enforcement agencies with a
uniform and successful method to plan, operate and evaluate sobriety checkpoints.
When implemented in conjunction with departmental policy and any constraints
imposed by state or local courts, sobriety checkpoints provide an effective enforcement
tool to combat the impaired driving problem.
Any agency considering the use of sobriety checkpoints should integrate them with a
continuing, systematic and aggressive program, including vigorous enforcement, public
information and education. The purpose of the program is to maximize the deterrent
effect and increase the perception of "risk of apprehension" of motorists who would
operate a vehicle while impaired by alcohol or drugs. There is convincing evidence
that the use of checkpoints has a marked, dramatic effect on reducing alcohol-related
crashes in a community.1
The National Highway Traffic Safety Administration wishes to express its appreciation
to Sergeant Barbara Bent, Dayton Police Department, Dayton, Ohio; Sheriff Earl Smith,
Franklin County Sheriff's Department, Columbus, Ohio; 1st Sergeant Larry Larkin,
Indiana State Police; Maryland State Police; Lieutenant Nancy Brunzos, Sergeant
David Kochubka and Technician Floyd Wing, Metropolitan Police Department,
Washington, D.C.; 1st Lieutenant Al Slaughter, Michigan State Police; Major Raymond
Dutcher, New York State Police; Deputy Charles Fortunato, Palm Beach County
Sheriff's Department, West Palm Beach, Florida; Sergeant Keith Adams, Redding
Police Department, Redding, California. We are grateful for the effort and contribution
from each of these individuals.
We also wish to acknowledge the International Association of Chiefs of Police (IACP)
and the National Sheriffs' Association for their recommendations and participation. Mr.
Charles Peltier (IACP) provided valuable technical assistance.
1 "Sobriety Checkpoints for DWI Enforcement - A Review of Current Research,"
National Highway Traffic Safety Administration, 1987
GUIDELINES FOR SOBRIETY CHECKPOINTS
These guidelines suggest and describe operational procedures that police
administrators may want to consider in order to ensure that sobriety checkpoints are
used legally, effectively and safely. These points are consistent with those specified in
recent court decisions, including the United States Supreme Court ruling in Michigan
Department of State Police v. Sitz, upholding the constitutionality of sobriety
checkpoints. An effective sobriety checkpoint program consists of the following
components:
Ongoing Program to Deter Impaired Driving
Judicial Support
Existing Departmental Policy
Site Selection
Special Warning Devices
Visible Police Authority
Chemical Testing Logistics
Contingency Planning
Detection and Investigation Techniques
Operational Briefings
Comprehensive Public Information and Education Programs
Data Collection and Evaluation
Ongoing Program to Deter Impaired Driving - Agencies considering
implementing sobriety checkpoints should integrate them with a continuing,
systematic and aggressive enforcement program. Vigorous enforcement, public
information and education need to be part of this program. The purpose of the
checkpoint is to maximize the deterrent effect and increase the perception of "risk
of apprehension" to motorists who would operate a vehicle while impaired by
alcohol or other drugs. The use of checkpoints alone will not maintain the
perception of risk essential to an effective general deterrence program.
Judicial Support - When officials decide to use sobriety checkpoints, they should
involve their prosecuting attorney (district attorney, attorney general, etc.) in the
planning process to determine legally acceptable procedures. This person can
assist in identifying any legally mandated requirements and the types of evidential
information that will be needed to prosecute cases emanating from checkpoint
apprehension.
The jurisdiction's presiding judge should be informed of the proposed checkpoints
and procedures, an essential step if the judiciary is to accept their use. The judge
2
can provide insight on what activities would be required to successfully adjudicate
such cases.
Prosecutors, judges, and other involved members of the criminal justice system can
be invited to observe the actual operation of the checkpoint.
Existing Policy/Guidelines - Before using sobriety checkpoints, the agency must
have specifically established procedures outlining how the checkpoints are to be
conducted. The courts have been very clear in requiring the advance planning of
sobriety checkpoints. Failure to do so has been used as evidence that the
checkpoint techniques involved unfettered discretion. The policy should also
assure that the checkpoints are conducted with a minimal amount of intrusion or
motorist inconvenience.
Site Selection - Planning should assure the safety of the general public and law
enforcement officers when selecting an operational site. Sobriety checkpoints
must not create more of a traffic hazard than the results of the driving behavior they
are trying to modify.
Planners should remember to select a site that allows officers to pull vehicles out of
the traffic stream without causing significant subjective intrusion (fright) to the
drivers (United States v. Ortiz 422 U.S. 891 (1975)) and/or creating a safety
hazard, e.g., by creating a traffic backup. Furthermore, officers' safety must be
taken into account when deciding where to locate the checkpoint.
The department should objectively outline criteria used in the site selection
process, e.g., an unusual incidence of alcohol/drug involved crashes or driving
violations, unusual number of nighttime single vehicle crashes or other
documented alcohol/drug related vehicular incidents.
The site should permit the safe flow of traffic through the checkpoint.
Consideration should be given to the posted speed limits, traffic volume and
visibility. Most jurisdictions have the capability to review the Average Traffic
Volume (ATV) during the surveillance period for major roadways in their area.
Once a jurisdiction has decided on possible locations for the sobriety checkpoints,
the effect on traffic flow can be determined by ascertaining how long each interview
takes, then, multiplying that time by the number of available officers, and finally,
dividing that figure into the average number of vehicles which can be expected at
that location. This will suggest whether all vehicles can be examined without
causing a traffic build-up.
If the traffic volume precludes stopping every vehicle, a nondiscretionary scheme
should be adopted, in advance, for stopping some subset of vehicles. In Delaware
3
v. Prouse, 440 U.S. 648 (1979) the United States Supreme Court indicates that
stopping all cars would be an acceptable method of conducting spot checks. In a
concurring opinion, Justice Blackmum (joined by Justice Powell) suggests that
other methods would also be acceptable, such as stopping every tenth car that
passes a given point. If every vehicle is not stopped, the method used to
determine which ones will be stopped must appear in the administrative order
authorizing the use of the sobriety checkpoint.
The site should have maximum visibility from each direction and sufficient
illumination for the safety of both the motorists and officers. If permanent lighting is
unavailable, ensure that adequate portable lighting is provided. Planners should
also ensure that sufficient adjoining space is available to pull vehicles off the
traveled portion of the roadway. Any other conditions that may pose a hazard
should be taken into consideration.
Warning Devices - Special care should be taken to warn approaching motorists of
the sobriety checkpoint. Such notice can be accomplished using warning signs
indicating the upcoming checkpoint; flares or fusees (if weather permits) and safety
cones or similar devices for marking and/or closing lanes on the roadway;
permanent or portable lighting to illuminate the checkpoint area; and, marked patrol
vehicles with warning lights flashing.
A sign or device should be placed to provide advance warning stating why
motorists are stopped. The U.S. Supreme Court has found that visible signs of the
officers' authority generate less concern and fright on the part of lawful travelers,
and is therefore less of a subjective intrusion (United States v. Martinez-Fuerte,
428 U.S. 643 (1976)).
The placement and types of traffic control devices used should comply with federal,
state or local transportation codes. Planners should check with appropriate
agencies administering the location and placement of signing devices.
Visible Police Authority - The visibility of uniformed officers and their marked
vehicles makes the police presence obvious. It also serves to reassure motorists
of the legitimate nature of the activity. This is an important aspect of the sobriety
checkpoint and part of the effort to reduce the intrusion to the passing motorists
affected by the checkpoint.
A sworn, uniformed officer should be assigned to provide on- site supervision of
the checkpoint operation. This officer should be responsible for the overall
operation and should be well versed in contingency planning for the checkpoint.
The checkpoint should be staffed by a sufficient number of uniformed personnel to
4
assure a safe and efficient operation, based on traffic volume, roadway size, type
of location, etc.
Chemical Testing Logistics - Since impaired driving arrests are anticipated at the
selected location, the logistics of chemical testing must also be included. If
possible, a mobile breath testing unit with a qualified operator could be physically
located at the checkpoint. If one is not available, a system for expeditiously
transporting suspected violators to chemical test sites should be established. In
applicable locations, a Drug Recognition Technician (DRT) should be available, at
a suitable location, to examine subjects who may be impaired by drugs other than
or in combination with alcohol.
Contingency Planning - Any deviation from the predetermined plan for stopping
vehicles should be thoroughly documented and the reason for the deviation given
(e.g., traffic backing up, intermittent inclement weather). Courts have allowed this
as long as documentation of the reason requiring the deviation from the interview
sequence is kept (United States v. Prichard, 645 F2d 854). If such an event
occurs, jurisdictions should have prepared an alternative plan, in advance, to
handle the checkpoint.
Detection and Investigation Techniques - An agency considering the use of
sobriety checkpoints should ensure that the participating officers are properly
trained in detecting impaired drivers. The use of sobriety checkpoints which allow
impaired drivers to pass through undetected will not achieve the desired
deterrence effect. Officers should look for the following indicators of impairment
during initial contact with a driver at a checkpoint: odor of alcoholic beverages or
other drugs (marijuana, hashish, some inhalants); bloodshot eyes; alcohol
containers or drug paraphernalia; fumbling fingers; slurred speech; admission of
drinking or drug use; inconsistent responses; detection of alcohol by a passive
alcohol sensor; etc. It is highly desirable that officers assigned to conduct the
sobriety checkpoint receive the DWI Detection and Standardized Field Sobriety
Testing (SFST) training. Police are using these techniques taught in the SFST
course to quickly detect whether a driver is impaired.
Once an officer's suspicion is raised, further investigation can take place out of the
traffic lane without impeding the flow of traffic. If an officer believes it is necessary
to move a suspect's car after he or she has reasonable suspicion of impairment, it
should be moved by someone other than the suspect.
The officer should then continue the investigation using non- incriminating divided
attention questions (e.g., by the officer simultaneously asking for driver's license
and vehicle registration, requiring the subject to do two things at once) and the
administration of the SFST battery, which includes the Walk and Turn test,
5
One-Leg Stand test, and Horizontal Gaze Nystagmus. After the completion of the
SFST, the officer may use a portable breath testing device (PBT), if permissible in
that jurisdiction. An evidential test to determine the blood alcohol concentration
(BAC) should then be administered.
If the officer determines the subject is impaired and obtains a low BAC, a DRT
should be utilized for further investigation. If a DRT is not available, normal
departmental procedures regarding drug impaired drivers should be followed.
Operational Briefings - The success of a sobriety checkpoint depends greatly
upon smooth and efficient operations. The persons selected as supervisors of the
operation should be briefed thoroughly on all procedures. This includes
maintaining as little delay to the motoring public as possible and keeping records of
any deviation from the original operational plan.
Persons selected to staff the checkpoint should be briefed on both its purpose and
operation. They should understand the necessity for standard and uniform
questions asked of drivers to avoid subjectivity. The use of an operational briefing
is one way to accomplish this.
Public Information and Education - To obtain maximum benefit in terms of its
general deterrent effect, sobriety checkpoints should be publicized aggressively.
Most drivers will probably never encounter a sobriety checkpoint, but will only learn
of it through media reports or by word of mouth. These two valuable forms of
public communication will greatly enhance any such program and should be
employed consistently.
Checkpoints are an ideal opportunity to give educational materials regarding
impaired driving, speeding, child restraint and seat belt usage, as well as seasonal
reminders such as schools opening, to persons stopped at the checkpoint.
Data Collection and Evaluation - A systematic method of data collection and
evaluation should be used to monitor and ensure standardization and consistency
of sobriety checkpoints. This may be done by measuring the reaction of the public
to the checkpoint and administrative evaluation of collected data.
Public reaction - This can be measured by immediate feedback received by
officers at the site of the sobriety checkpoint. Also, a short questionnaire which
includes an explanation of why the checkpoint is conducted, given to drivers
stopped at the checkpoint, can provide data. It may ask of the driver such
questions as; Does the driver believe the checkpoint is fair? Did the driver mind
being stopped briefly? Did the driver feel checkpoints help deter driving while
impaired? The response can be completed later and mailed back to the agency.
6
If the jurisdiction has the resources, a stamped, self-addressed postcard can be
used as the questionnaire.
Evaluation - This concerns the extent to which the program's implementation,
operation and efficiency meets targets set for the program. The following items
may be addressed:
Number of vehicles passing through the checkpoint
Average time delay to motorists
Number of motorists detained for field sobriety testing
Number and types of arrests
Identification of unusual incidents such as safety problems or other
concerns
Reaction of police officers participating in the sobriety checkpoint,
including degree of support and effect on morale
Perception of the quality of checkpoint cases brought before
prosecutors and judges, including special problems
Change in number of impaired driving arrests
Change in number of impaired driving related nighttime crashes
Other information deemed necessary by individual agencies
The National Highway Traffic Safety Administration strongly supports the regular use of
sobriety checkpoints. They should be integrated into an overall drunk and drugged
driving program, along with vigorous selective enforcement, public information and
education. Effective enforcement of drunk driving laws, combined with swift and sure
license removal, provides the most important element for reducing alcohol-related fatal
and serious injury crashes. Roadside sobriety checkpoints have provided among the
most effective results of any enforcement procedure. Checkpoints are an important
part of a comprehensive enforcement program designed to raise the perceived
probability among potential impaired drivers that they will be stopped and arrested for
DWI.
7
Sample Questionnarie
SOBRIETY CHECKPOINTS
1. Has your agency used sobriety checkpoints in the past?
YES _______ NO _______
2. Is your agency currently using sobriety checkpoints?
YES _______ NO _______
3. Does your agency plan on using sobriety checkpoints in the future?
YES _______ NO _______
4. If your agency uses checkpoints, how many arrests were made at checkpoints for
impaired driving offenses? Add additional years if necessary.
NUMBER _______ YEAR _______
5. List other law enforcement agencies in your state who conduct sobriety checkpoints.
_________________________________________________________________
_________________________________________________________________
6. List any significant decline in blood alcohol levels of impaired
driving arrests or reduction in alcohol related crashes attributed to sobriety
checkpoints.
_________________________________________________________________
________________________________________________________________
_________________________________________________________________
7. Does your agency have a written policy governing sobriety checkpoints?
YES _______ NO _______
A - 1
APPENDIX A
SOBRIETY CHECKPOINTS BRIEFING GUIDE
Prior to conducting the sobriety checkpoint, the following items should be discussed
and thoroughly explained to all officers and supervisors participating in the detail.
Routine information, such as location, times, and personnel assignments, including
chemical test operators, should be included at each briefing.
Explain the goal(s) of the roadside sobriety checkpoint.
Discuss the sobriety checkpoint location and the statistical data
supporting the chosen checkpoint site.
Stress the need for safety for both the officers and motorists
Assign the sobriety checkpoint operational supervisor. The
supervisor shall remain at the checkpoint location to oversee all
on-site enforcement activities.
Discuss the placement of personnel and traffic control devices in
conformance with established roadside sobriety checkpoint
guidelines and federal, state and/or municipal signing regulations.
Develop and establish a systematic approach to stopping the
vehicles as they enter the checkpoint location. For example, all
vehicles or every fifth vehicle will be stopped. At no time will a
random stop be utilized. If a problem such as traffic congestion
occurs and requires a change in the pattern of stopping vehicles,
the on-scene supervisor will determine if there will be a change
from the systematic vehicles stopping sequence. All changes, no
matter how slight, shall be documented including the time of
change with an appropriate explanation of the reason for the
change.
Instruct all participating officers to explain the purpose of the
checkpoint to the motorist as they approach a vehicle. A uniform
statement/question to the driver should be used, for example:
A - 2
"Good Evening. You have been stopped at a Department Name
sobriety checkpoint. We use checkpoints in an effort to detect and
deter the impaired driver. Have you consumed any alcohol or
controlled substance today?"
If the driver's answer is no and there is no other compelling reason
to detain the vehicle, the officer should permit the motorist to
proceed.
If the driver's answer is yes, ask how much and when. Depending
on the answers and other circumstances, the officer should decide
if further investigation is warranted. If so, direct the driver to safely
exit the vehicle and escort him or her to the designated area for
further investigation. If not, permit the motorist to proceed.
Sobriety checkpoint pamphlets, questionnaires and occupant
protection booklets should be given to each motorist stopped
during the detection phase.
Also during the detection phase, the officer should see if the
occupants of the stopped vehicle are properly using required
safety restraints (including child safety seats). If a violation exists
a verbal reminder may be given.
Instruct officers to inspect the driver for the smell of alcoholic
beverages or other drugs, bloodshot eyes, fumbling fingers, slurred
speech, admission of drinking or drug use, abusive language,
inconsistent responses, etc. Be observant of the interior of the
vehicle for alcoholic beverage containers, drug paraphernalia or
other contraband, such as weapons, that are in plain view.
The motorist should be permitted to proceed on his/her way unless
the officer observes evidence of intoxication, or there is evidence
of another serious violation requiring immediate action.
Those persons suspected of impairment should be subjected to the
battery of Standardized Field Sobriety Tests. If impairment is
obvious and the blood alcohol level (BAC) is low, a Drug
Recognition Technician (DRT) should evaluate the subject. If a
DRT is not available, normal departmental policy for handling
impaired drivers should be followed.
A - 3
Searches of a motor vehicle, the driver, or passengers, shall be
conducted only when consistent with departmental policies or when
legally permissible.
A motorist who wishes to avoid the checkpoint by legally turning
before enterning the checkpoint area should be allowed to do so
unless a traffic violation(s) is observed or probable cause exists to
take other action. The act of avoiding a sobriety checkpoint does
not consititute grounds for a stop.
An accurate and complete written evaluation report shall be
prepared for each sobriety checkpoint operation. Items in the
report should include but are not limited to:
- number of vehicles passing through the checkpoints
- number of motorists detained for Standardized Field
Sobriety Testing
- average time delay for motorists
- number and types of arrests
- identification of unusual incidents such as safety problems
or other concerns
- reaction of police officers participating in the sobriety
checkpoint, including the effect on morale and degree of
officer support
- reaction of the motoring public to the sobriety checkpoint
B - 1
MODEL POLICY
SOBRIETY CHECKPOINT GUIDELINES
I. PURPOSE
The purpose of this policy is to provide guidelines for the physical
construction and operation of a sobriety checkpoint in order to maximize
the deterrent effect and increase the perception of "risk of apprehension"
of motorists who would operate a vehicle while impaired by alcohol or
other drugs.
II. POLICY
It shall be the policy of this law enforcement agency to implement a
sobriety checkpoint program. This will be done as part of a
comprehensive enforcement program. To ensure standardization of this
program a clear and concise set of written guidelines has been developed
governing procedures on how checkpoints will be operated within this
jurisdiction.
To implement this policy this agency must:
. Satisfy federal, state and local legal requirements.
. Conduct checkpoints with a minimal amount of intrusion or motorist
inconvenience.
. Assure the safety of the general public as well as law enforcement
officers involved.
. Provide for an objective site selection process based on relevant
data.
. Provide for public information and education to maximize the
deterrent effect and heighten awareness of the impaired driving
problem.
B - 2
. Provide for a systematic procedure for data collection and after
impact analysis report to monitor and ensure standardization and
consistency of the sobriety checkpoint program.
. Officer selection should be based on experience and training.
Operational procedures will be covered during a briefing period
prior to each checkpoint.
III. DEPARTMENTAL GUIDELINES
Written guidelines, consistent with existing agency policies, prepared in
advance of the checkpoint program must:
A. Be approved by the agency's chief law enforcement official or
designee prior to commencement of the checkpoint.
B. Specify signing, safety equipment, warning devices, barriers, etc. that
will be used, their placement and proper use at the scene. This
specification will be consistent with applicable standards and
regulations. (See the relevant state or local manuals on traffic control
devices, etc.)
C. Specify the method for selecting motorists to be contacted, e.g.,
"every vehicle, every fifth vehicle," etc. to ensure objectivity.
D. Provide for an operational briefing of personnel prior to each
checkpoint. At this time designate assignments and respective
duties.
E. Specify dialogue and educational material to be used by checkpoint
personnel.
F. Provide for the removal of vehicles to the predetermined area when
further investigation is required.
G. Public reaction to the use of sobriety checkpoints can be obtained by
several different methods. Recommended procedures for obtaining
feedback are:
1. Mail in surveys.
2. Verbal feedback from motorists at checkpoint site.
3. Periodic public opinion polls.
B - 3
IV. PROCEDURES
A. Site Selection
This department must be able to objectively outline criteria utilized in the
site selection process:
1. Alcohol/Drug related traffic experiences.
a. Unusual incidence of alcohol/drug related crashes.
b. Alcohol/drug impaired driving violations.
c. Unusual number of nighttime single vehicle crashes.
d. Any other documented alcohol/drug related vehicular incidents.
2. Select locations which permit the safe flow of traffic through the
checkpoint.
a. Consideration should be given to posted speed limits, traffic
volume and visibility.
b. Ensure sufficient adjoining space is available to pull vehicles off
the traveled portion of the roadway.
c. Consider other conditions that may pose a hazard.
3. The site should have maximum visibility from each direction and
sufficient illumination. If permanent lighting is unavailable ensure that
portable lighting is provided.
B. PERSONNEL
1. A sworn, uniformed officer will be assigned to provide on-scene
supervision of the checkpoint.
2. The checkpoint will be staffed by a sufficient number of uniformed
personnel to assure a safe and efficient operation.
C. ADVANCE NOTIFICATION
1. For the purpose of public information and education, this agency will
announce to the media that checkpoints will be conducted.
B - 4
2. This agency will encourage media interest in the sobriety checkpoint
program to enhance public perception of aggressive enforcement, to
heighten the deterrent effect and to assure protection of constitutional
rights.
3. This agency will provide advance notification of the checkpoint to
public safety agencies expected to be impacted.
D. MOTORISTS WARNINGS / SAFETY METHODS
1. Special care is required to warn approaching motorists of the sobriety
checkpoint.
2. Basic equipment will include, but is not limited to:
a. Warning signs placed in advance of the checkpoint
b. Flares, fusees, or similar devices
c. Safety cones or similar devices
d. Permanent/portable lighting
e. Marked patrol vehicles
3. The use, placement and types of traffic control devices must comply
with federal, state, or local transportation codes.
E. CONTINGENCY PLANNING
Any deviation from the predetermined guidelines must thoroughly
document the reason for the deviation. (i.e. traffic backing up, intermittent
inclement weather.)
F. DATA COLLECTION AND EVALUATION
To monitor and ensure standardization and consistency of the sobriety
checkpoint program a systematic method of data collection will be
incorporated.
1. After action report may include, but is not limited to:
a. Time, date, and location of checkpoint.
b. Weather conditions.
c. Number of vehicles passing through checkpoint.
d. Average time delay to motorists.
e. Predetermined order of selecting motorists.
B - 5
f. Number and types of arrests.
g. Number of motorists detained for field sobriety testing.
h. Identification of unusual incidents such as safety problems/other
concerns.
2. To assist in determining the effectiveness of a checkpoint operation, a
periodic impact analysis will include the following types of information.
a. Crash rate reduction.
b. Impaired driving offenses.
c. Impaired driving convictions
d. Public opinion survey to determine increased perception of
detection and apprehension of impaired drivers.

Trooper cracks under the pressure of too many bogus arrests

2009-02-28T08:10:00.002-05:00

A South Carolina Highway Patrol officer is off the job after being arrested under bizarre circumstances on Wednesday.
Officials say trooper Leslie C. Hoover was pulled over on John Dodd Road in Spartanburg County under suspicion of DUI. This came after a motorist called 911 to report Hoover’s personal vehicle, an Isuzu Rodeo, swerving erratically on Insterstate 26 about 6:40pm in heavy rush hour traffic. The SC Department of Public Safety says Hoover refused a breathalyzer and failed a field sobriety test. He was charged with driving under the influence.
Thursday morning, Hoover appeared before a magistrate and was released on his own recognizance. But his appearance when he entered the jail has stirred more discussion than his legal troubles.
A high-ranking official who wished to remain anonymous tells News Channel 7 he saw Hoover brought into the jail “wearing a red dress”. He says Hoover was also wearing a bra and was seen “adjusting his bra” while he waited to be processed. And he says the shamed trooper had a pair of thong panties “in his possession”.
That would explain statements made by the man who made the 911 call on the interstate. The driver, who asked not to be identified, said Hoover “appeared to be wearing a blonde wig” when he came flying past him near exit 22. On a recording of his 911 call - which was obtained by News Channel 7 - the man refers to Hoover as “she” several times.
“Yes, I’m on interstate 26 heading west at exit 22 and there is a red, I think it’s an Isuzu or a Rodeo, and she - I think it’s a she - is weaving all over the road,“ says the caller on the 911 tape.Dispatcher: “Do you think she’s intoxicated or….?“Caller: “I can’t tell but she is weaving all over the road!“. Sid Gaulden, spokesperson for the Department of Public Safety, says Hoover is from Lexington County and was on his personal time when he was arrested. He says Hoover was terminated Thursday morning. He had worked for the Highway Patrol for 30 years. He says Hoover retired in 2000 but came back to work in 2002 as a member of the patrol’s Insurance Enforcement Team. The team works with the Department of Motor Vehicles to seize license plates from car owners who have allowed their insurance coverage to lapse.
“They are part-time employees but they have the same authority to conduct traffic stops and issue citations as a full-time state trooper,“ says Gaulden. He says Hoover did not have any disciplanary actions against him as a patrol officer from 1976 to 2000. But after he came back in 2002, he had to attend one counseling session for “negligent operation of a state vehicle”. Gaulden says that stemmed from an incident in which Hoover rear-ended a civilian’s vehicle. He says “there was no indication alcohol was a factor” in that crash.
The man who called 911 raises another interesting issue: he says another state trooper could have stopped Hoover before he called 911 but did not pull him over. He says as Hoover’s vehicle swerved all over the road near exit 22, a state trooper in an SUV pulled “right up behind” Hoover and followed him. He says at the time, Hoover’s vehicle was straddling the divided white line that separates lanes.
“I really thought (the trooper) was going to pull him over because he was clearly weaving,“ says the caller. “But he just went right around him and took off real fast like he was in a hurry.“
He says as the trooper was going around Hoover’s vehicle, Hoover swerved off the shoulder of the interstate.
“I thought that would have been obvious enough for the trooper to notice that but I guess he didn’t,“ says the man. He says minutes later, after he saw Hoover almost collide with several vehicles, he picked up his cell phone and dialed 911.
We informed Department of Public Safety of the man’s statement about the trooper failing to pull over Hoover. Gaulden said they were not aware of the scenario “but we will investigate it fully” to see if it was indeed a state trooper who pulled up behind Hoover and if so, why they opted not to pull him over.
Click on the video tab to see Chris Cato’s story on the arrest and audio of the 911 call.

"I have a badge and can arrest you anytime I want even if it isn't a violation of law

2008-09-25T23:21:00.002-04:00

FROM ASSOCIATED PRESS
SOUTH CHARLESTON, W.Va. — A West Virginia man who police said passed gas and fanned it toward a patrolman has been charged with battery on a police officer.
Jose A. Cruz, 34, of Clarksburg, was pulled over early Tuesday for driving without headlights, police said. According to the criminal complaint, Cruz smelled of alcohol, had slurred speech and failed three field sobriety tests before he was handcuffed and taken to a police station for a breathalyzer test.
As Patrolman T.E. Parsons prepared the machine, Cruz scooted his chair toward Parsons, lifted his leg and ‘‘passed gas loudly,’’ the complaint said.
Cruz, according to complaint, then fanned the gas toward the officer.
‘‘The gas was very odorous and created contact of an insulting or provoking nature with Patrolman Parsons,’’ the complaint alleged. He was also charged with driving under the influence, driving without headlights and two counts of obstruction.
Cruz acknowledged passing gas, but said he didn’t move his chair toward the officer nor aim gas at the patrolman. He said he had an upset stomach at the time, but police denied his request to go to the bathroom when he first arrived at the station.
‘‘I couldn’t hold it no more,’’ he said.
He also denied being drunk and uncooperative as the police complaint alleged. He added he was upset at being prepared for a breathalyzer test while having an asthma attack. The police statement said he later resisted being secured for a trip to a hospital that he requested for asthma treatment.
Cruz said the officers thought the gas incident was funny when it happened and laughed about it with him.
‘‘This is ridiculous,’’ he said. ‘‘I could be facing time.’’

SAN DIEGO DUI DEFENSE: BREATHALYZER TESTS ARE AN INACCURATE MEASUREMENT OF BLOOD ALCOHOL CONTENT

2008-05-15T07:22:00.001-04:00

A group of judges in New Hampshire was served several alcoholic drinks as part of an experiment that was intended to demonstrate the effectiveness of the Breathalyzer. One judge was given so many drinks that he became visibly intoxicated. When the judge blew into the Breathalyzer, the machine registered a score of 0.0. After a few more tries, the Breathalyzer gave the same result. Following the demonstration, at least one police jurisdiction in the state ceased using the Breathalyzer in favor of blood tests. (See Margaret Graham Tebo, New Test for DUI Defense, ABA Journal (Feb. 2005).)
The Breathalyzer is by far a less accurate test than a blood test. A blood test actually measures blood alcohol concentration (BAC). But a Breathalyzer merely estimates it. It measures "breath" alcohol concentration, and requires a difficult mathmatical conversion to correlate it to a "blood" alcohol concentration.
What the Breathalyzer attempts to measure is the presence of chemicals found in alcohol. But the machine often measures chemicals with molecular structures similar to those found in alcohol. There are, in fact, there are numerous chemical compounds that can fool a Breathalyzer machine.
According to Dr. David Hanson, Over 100 compounds can be found in the human breath at any one time, and 70 to 80 percent of them contain [a] methyl group structure and will be incorrectly detected as ethyl alcohol. (See David Hanson, Ph.D., Breath Analyzer Accuracy, at http://www2.potsdam.edu/hansondj/DrivingIssues/1055505643.html.) As a result, false positives can occur for a plethora of reasons.
Body chemistry is one factor that can lead to false positives. People with diabetes, acid reflux disease, or some cancers can fail Breathalyzer tests even if their bloodstreams are perfectly free of alcohol. Diabetics, for example, have extraordinarily high levels of acetone, a substance that some breath machines mistake for ethyl alcohol.
Police recognize that regurgitation can render unreliable the results of a Breathalyzer. Thus, most departments require that the arresting officer observe the subject of a breath test for a period of time prior to administerting the test. In California, police should watch the suspect for at least fifteen minutes to make sure he or she did not burp, hiccup or regurgitate prior to applying the test. Regurgitation includes any instance of fluids or gases that rise through the esophagus.
In 2004, the Illinois Supreme Court ruled inadmissible the results of a breath test where the defendant presented evidence of gastroesophageal reflux disease (GERD). In People v. Bonutti, 817 N.E.2d 489 (Ill. 2004), the defendant had blown a BAC of 0.174 after being stopped and showing outward signs of intoxication. Defendants motion to suppress the Breathalyzer evidence was granted because the court found that the results could have been compromised by a silent, unobservable episode of reflux.
Two years ago, when I attended the Intox 8000 Certification seminar in New Orleans (the San Diego Police Department had just implemented the machine), I was able to get a Fort Lauderdale judge who was acting as a guinney pig for us to blow a .20 breath alcohol level using the Intox 8000 machine. His true blood alcohol level at the time was .02 (he had one drink in him). I got the machine to measure a breath alcohol concentration of ten times the actual true blood alcohol level. How? I just manipulated the machine and the judge's breathing techniques.
If you think I can do this, imagine the flawed results an inexperienced cop might use against you?

DUI Deputy May Have Wrongly Jailed Dozens

2008-05-15T07:18:00.000-04:00

TAMPA - Daniel Brock won high praise for jailing impaired motorists. Mothers Against Drunk Driving honored him. So did his bosses. But one of Hillsborough County’s most aggressive DUI deputies may have wrongly sent dozens of people to jail, the Sheriff’s Office acknowledged on Thursday, June 14, 2007.
The agency fired Brock on May 24th. In one year, Brock arrested 58 people whose blood-alcohol content was below 0.08, the level at which state law presumes a driver is impaired, an internal affairs audit showed. “I don’t prescribe to the theory that somehow you have to be 0.08 to be drunk or impaired, ” Brock, 38, told investigators. (Editor Note: I bet he “prescribes” to the theory that somehow everyone is impaired or too drunk to drive at .08)
A driver may be charged with DUI in Florida if the blood-alcohol level is between 0.05 and 0.08 percent, but there must be other evidence of impairment, such as a swerving vehicle. In 43 of those 58 cases, motorists demonstrated no visible impairment behind the wheel, according to an internal affairs report made public Thursday. In 41 arrests, Brock also failed to make a case with urine samples, the report states.
Repeatedly, investigators found Brock reported failures in field sobriety tests when his patrol car video camera documented the opposite. He wrote, for instance, that a driver on Oct. 25, 2005, lost balance while turning. The video of the encounter showed that wasn’t the case. The driver blew a 0.01 in the breath test but was arrested anyway. He said drivers incorrectly recited the alphabet, used arms for balance and slurred speech - when the video showed correct alphabets, perfect balance and clear speech.
Records show he pulled people over on DUI stops 17 times while his cruiser was occupied with other prisoners. That’s against procedure. He routinely filed arrest reports days, even weeks, after making an arrest. He told internal affairs Detective Bruce Crumpler that he always reported the results of field sobriety tests based on memory. Wouldn’t that leave room for errors, Crumpler asked? “Well, there’s room for error, ” Brock told Crumpler. “I’ve never had a problem.” (Editorâ€™s Note: Until now his job was not on the line, his liberty was not restrained, and his license was not jeopardized. No wonder he had never had a problem.)
His paperwork became the subject of scorn at the Hillsborough State Attorney’s Office, where prosecutors said the deputy tarnished his reputation by filing inaccurate arrest reports that lacked important details. “He doesn’t have a very good reputation for being a very good DUI officer that we care to work with, ” prosecutor Jennifer Gabbard told Crumpler. “It’s almost like whatever you can do to make it look like you’re arresting people.”
From October 2005 to October 2006, Brock made 313 arrests for driving under the influence. He failed to activate his cruiser’s audio and video equipment in 40 percent of his stops, instead relying on his “wrought memory” to recall important arrest details, the audit showed. Within the Sheriff’s Office, Deputy Brock previously had been praised for his “outstanding professional service” and was consistently recommended for raises. His superiors rated his performance “satisfactory” and called him a credit to the office. He was lauded as a dedicated deputy who spoke to high school students about the perils of impaired driving.
“We always felt he was a good officer, ” said Becky Gage, 55, the victim advocate for Hillsborough’s MADD chapter. “As long as officers are within the scope of the law, then we support their efforts to remove impaired drivers.” (Editors Note: MADDs leadership embraces a “zero tolerance” standard for everyone, so they believe a person who drank one beer at a ball game should be arrested.)
However, the former deputy encountered a few bumps in the road. He was suspended and sent to driving school in 2000 after a string of what the Sheriff’s Office deemed avoidable traffic accidents. In 2006, he was named in a federal lawsuit alleging that he physically attacked the mother of a teenage boy he arrested in 2002. The Hillsborough County woman said Brock forced himself into her home, pushed her into a corner and sprayed her with pepper spray. The lawsuit is unresolved.
During the recent internal affairs investigation, Brock denied trying to boost numbers for personal recognition. It was unclear Thursday whether Brock intends to appeal his firing. He told investigators that given the chance, he would conduct his DUI stops the same way. Said Brock: “I mean, perfect world, we need more deputies and fewer people.”

Could your blood inflate your blood alcohol level?

2008-05-15T07:16:00.000-04:00

Your hematocrit level is the ratio of aqueous portions and solid portions of your blood. When alcohol enters your bloodstream it is carried in the plasma (liquid portion). Alcohol does not get absorbed into the red blood cells and other solid material in your blood Someone with a higher hematocrit level will have more solid parts in their blood and therefore will have less space for the alcohol to disperse in the liquid portion of the blood. Normal hematocrit differences can elevate a BAC by 10% to 14%.

How To Avoid a DUI Arrest This Summer.

2008-05-14T18:57:00.004-04:00

Law enforcement will step up DUI enforcement over the summer. Law enforcement will really step it up over the holidays, starting with Memorial Day weekend, and simmering down after Labor Day. It's starting now. Memorize these tips. They may come in handy over the holidays.

1. If you drive during the summer holidays, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. Police historically write in their DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the officer to pull over by the officer for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If an officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your New Year's day party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. Officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a 90 days or more.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, SDPD and Sheriff's don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitations protocol in place. Why risk infection?
If you are arrested, you will be released within 12 hours on your promise to appear. You will received a yellow piece of paper called a "AST 60)." This document tells you that you, or your lawyer, must call the Department of Public Safety within ten days of the arrest to secure a hearing to determine whether or not the DPS will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather inculpatory evidence against you. If you get arrested call Polson & Robbins. 205 252-7000

Draeger Alcotest 7110 Source Code Revealed

2007-10-06T20:10:00.000-04:00

Secret Breathalyzer Software Finally Revealed

Posted by Lawrence Taylor on September 4th, 2007 on duiblog.com

"As I’ve indicated in previous posts, defense attorneys for years have been trying to discover the software source code used by manufacturers of various breathalyzer models. (See “Secret Breathalyzer Software Still Secret”) The accuracy of these machines, which essentially determine a suspect’s guilt or innocence, depends upon the accuracy of the software driving them; as the computer techs say, “Garbage in, garbage out”. But the manufacturers have refused to produce the information, relying upon a claim of “trade secrets” — that is, that the code of each model is a unique creation of the manufacturer. And prosecutors, apparently more concerned with profits than with justice, have joined them in resisting disclosure.
Recently, however, judges in Florida, Minnesota, New Jersey and a growing number of other states have begun ordering the manufacturers to reveal the inner workings of their machines to the defense. (See “Judge: Divulge Breathalyzer Code…or Else”.) Not surprisingly, the manufacturers have refused to comply. Until a few days ago….

New Jersey attorney Evan M. Levow was finally able to get an order from the Supreme Court of New Jersey forcing the manufacturer of the popular Draeger AlcoTest 7110 to reveal the source code. Levow turned the code over to experts, Base One Technologies, to anaylze.
Initially, Base One found that, contrary to Draeger’s protestations that the code was proprietary, the code consisted mostly of general algorithms: “That is, the code is not really unique or proprietary.“ In other words, the “trade secrets” claim which manufacturers were hiding behind was completely without merit.
Some of the more interesting excerpts from the Base One report:

1. The Alcotest Software Would Not Pass U.S. Industry Standards for Software Development and Testing: The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style…
It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Food and Drug Administration (FDA), as well as commercial standards used in devices for public safety…If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards…
2. Catastrophic Error Detection Is Disabled: An interrupt that detects that the microprocessor is trying to execute an illegal instruction is disabled, meaning that the Alcotest software could appear to run correctly while executing wild branches or invalid code for a period of time. Other interrupts ignored are the Computer Operating Property (a watchdog timer), and the Software Interrupt.
3. Diagnostics Adjust/Substitute Data Readings: The diagnostic routines for the Analog to Digital (A/D) Converters will substitute arbitrary, favorable readings for the measured device if the measurement is out of range, either too high or too low. The values will be forced to a high or low limit, respectively. This error condition is suppressed unless it occurs frequently enough…
4. Flow Measurements Adjusted/Substituted: The software takes an airflow measurement at power-up, and presumes this value is the “zero line” or baseline measurement for subsequent calculations. No quality check or reasonableness test is done on this measurement…
5. Error Detection Logic: The software design detects measurement errors, but ignores these errors unless they occur a consecutive total number of times. For example, in the airflow measuring logic, if a flow measurement is above the prescribed maximum value, it is called an error, but this error must occur 32 consecutive times for the error to be handled and displayed. This means that the error could occur 31 times, then appear within range once, then appear 31 times, etc., and never be reported…

Based upon a .08% reading from this machine, American citizens are accused of drunk driving and, in court, presumed by law to be guilty."

Five Year Cap for Felony DUI Jurisdiction

2007-10-04T07:42:00.000-04:00

Thankfully the Alabama Court of Appeals has finally interpreted subsection (o) of the Alabama dui statute thereby ending the confusion that some judges and district attorneys were having throughout the state in reading plain English. Their confusion was surprising given the language of the statute was clear and unambiguous. One of our clients, a pulpwood truck driver from Walker County with a sixth grade education, had no difficulty understanding it so why were the people in Morgan, Shelby, Houston, Lee and St. Clair Counties, just to name a few, having so much difficulty? I think this clearly underscores the premise that DUI in Alabama is a political crime and in that context that few public officials will "man up" when comes to doing the right thing. A sad commentary for judges sworn to uphold the laws of the state and constitution and prosecutors ethically bound to do justice. Read and enjoy!

Court of Criminal Appeals of Alabama.

Jeffery HANKINS
v.
STATE of Alabama.

CR-06-0310.

Sept. 28, 2007.

Appeal from Lamar Circuit Court (CC-06-83).
SHAW , Judge.

*1 On October 11, 2006, the appellant, Jeffery Hankins, [FN1] pleaded guilty to driving under the influence of alcohol ("DUI"), a violation of § 32-5A-191 (a)(2), Ala.Code 1975 . He was sentenced, pursuant to the enhanced felony sentencing provision in § 32-5A-191(h), Ala.Code 1975 , to 65 months in prison; the sentence was suspended, and Hankins was ordered to serve 15 months in prison, followed by probation. [FN2]
FN1. The record and briefs reflect two different spellings for the appellant's first name--Jeffery and Jeffrey. For purposes of this opinion, we use the spelling contained in the indictment--Jeffery.
FN2. Hankins's indictment charged that on or about July 22, 2006, Hankins had driven or been in actual physical control of a vehicle while under the influence of alcohol at or near Shiloh Road in Sulligent.
During the guilty-plea proceedings, Hankins objected to the trial court's sentencing him under the felony provision in § 32-5A-191 (h) because, he said, he did not have the requisite number of prior DUI convictions to invoke that provision. Specifically, Hankins argued that § 32-5A-191(o), Ala.Code 1975 , as amended by Act No. 2006-654, Ala. Acts 2006, [FN3] operates to limit the application of § 32-5A-191(h) to only those persons convicted of DUI who have had at least three prior DUI convictions within a five-year period preceding the latest conviction and that he did not have three prior DUI convictions within the preceding five years. [FN4] The trial court rejected Hankins's challenge to his sentence, considered Hankins to have had four prior DUI convictions for purposes of sentence enhancement, and imposed a felony sentence pursuant to § 32-5A-191(h) . Hankins expressly reserved the right to appeal the propriety of his being sentenced under § 32-5A191(h). See Mitchell v. State, 913 So.2d 501 (Ala.Crim.App.2005) . Therefore, this Court is properly presented with a single issue of first impression: whether § 32- 5A-191(o) requires a defendant's prior DUI convictions to have occurred within a five-year period preceding the latest conviction before the felony sentencing provision in § 32-5A-191(h) can be applied.
FN3. During the 2006 session, the legislature enacted Act No. 2006- 0298, which amended § 32-5A-191 . However, later in the same session, the legislature enacted Act No. 2006-0654, which repealed Act No. 2006-0298 and again amended § 32-5A-191 . The only substantive difference between the two acts was that Act. No.2006-0654 added subsection (c)(2) to § 32-5A-191 , while Act No. 2006-0298 had no such subsection. That difference, however, is not relevant to this case.
FN4. During the guilty-plea proceedings Hankins acknowledged having at least three prior DUI convictions. Later, for purposes of establishing a record regarding this issue, Hankins's counsel stipulated that Hankins had four prior DUI convictions--"a conviction dated January 1st, 1990 in CC-2004-136; January 1st, 1992 in the State of Kentucky, a DUI; then January 1st, 1994 in Guin, Alabama, a DUI; and June 15th 2003, TR-2003-892, a DUI." (R. 17-18.) We note, however, that the presentence investigation report that Hankins introduced into evidence indicates that Hankins actually has seven prior DUI convictions, and that only two of those convictions appear to have been within five years of the present conviction-a 2004 conviction for felony DUI in case no. CC-04-136, and a 2003 conviction in case no. TR-2003-892. We note that, although the record is not entirely clear, it appears that counsel's reference to the conviction in case no. CC-04-136 as being dated January 1, 1990, was in error.
Section 32-5A-191 currently reads, in pertinent part:
"(a) A person shall not drive or be in actual physical control of any vehicle while:
"....
"(2) Under the influence of alcohol;
"....
"(e) Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than six hundred dollars ($600) nor more than two thousand one hundred dollars ($2,100), or by both a fine and imprisonment. In addition, on a first conviction, the Director of Public Safety shall suspend the driving privilege or driver's license of the person convicted for a period of 90 days.
"(f) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by a fine of not less than one thousand one hundred dollars ($1,100) nor more than five thousand one hundred dollars ($5,100) and by imprisonment, which may include hard labor in the county or municipal jail for not more than one year. The sentence shall include a mandatory sentence, which is not subject to suspension or probation, of imprisonment in the county or municipal jail for not less than five days or community service for not less than 30 days. In addition the Director of Public Safety shall revoke the driving privileges or driver's license of the person convicted for a period of one year.
*2 "(g) On a third conviction, a person convicted of violating this section shall be punished by a fine of not less than two thousand one hundred dollars ($2,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment, which may include hard labor, in the county or municipal jail for not less than 60 days nor more than one year, to include a minimum of 60 days which shall be served in the county or municipal jail and cannot be probated or suspended. In addition, the Director of Public Safety shall revoke the driving privilege or driver's license of the person convicted for a period of three years.
"(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years.
...
"....
"(o ) A prior conviction within a five-year period for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory shall be considered by a court for imposing a sentence pursuant to this section."
(Emphasis added.) Subsection (o) was amended in 2006. See Act No. 2006-654, Ala. Acts 2006, § 1. Before that amendment, it was clear that subsection (h) did not require the prior DUI convictions used for felony-sentence enhancement to have occurred within five years preceding the latest conviction. See, e.g., Act No. 97-556, Ala. Acts 1997, which specifically removed the five-year requirement from both subsections (g) and (h); see also Ex parte Parker, 740 So.2d 432, 433 (Ala.1999) , and Ex parte Boyd, 796 So.2d 1092 (Ala.2001) . The question, then, is what effect, if any, did the amendment of subsection (o) have on the felony sentencing provision in subsection (h)?
Hankins contends that, based on the plain meaning of the language in subsections (h) and (o), read together, a defendant convicted of DUI must have three prior DUI convictions "from this state, a municipality within this state, or another state or territory or a municipality of another state or territory" within the five-year period preceding the conviction for which the defendant is being sentenced in order for the felony sentencing provision in § 32-5A-191(h) to be invoked. In the alternative, Hankins argues that to the extent there is any ambiguity in the statute following the 2006 amendment as to whether the five-year requirement was intended to apply to prior in-state DUI convictions under § 32-5A-191 (or only to prior in-state municipal convictions and out-of-state convictions), that ambiguity may not be clarified by implication; he maintains that this Court is bound to construe § 32-5A-191 strictly and to resolve all doubts concerning its interpretation in his favor. Thus, according to Hankins, either approach--plain-meaning application or statutory construction--should lead this Court to the conclusion that the felony sentencing provision in § 32-5A-191(h) is not applicable to him because he did not have three prior DUI convictions within a five-year period immediately preceding his current conviction.
*3 The State contends, on the other hand, that subsections (h) and (o) of § 32-5A-191 , when read together, were not intended to have a limiting effect with respect to the use of prior DUI convictions for the purpose of sentence enhancement. Pointing out that subsection (o) does not say that "only" those convictions within a five-year period "shall be considered" by the trial court for purposes of sentencing under § 32-5A-191(h) , the State argues:
"[Section 32-5A-191] specifically requires the trial court to consider those convictions within a five year period from the instant conviction, while also implicitly allowing the trial court the discretion to consider any and all DUI convictions outside of the five year period."
(State's brief at p. 9-10.) The State also argues that the 2006 amendment to § 32-5A-191 was simply the legislature's response to the Alabama Supreme Court's decision in Ex parte Bertram, 884 So.2d 889 (Ala.2003) , and that the legislature's intent in amending subsection (o) in 2006 was to strengthen the statute by responding to the construction of § 32-5A-191 given by the Court in Bertram --that the only prior convictions that could be used for sentence enhancement were convictions that occurred in Alabama under § 32-5A-191 . The State argues:
"In apparent response to Bertram, the Alabama Legislature enacted Act 2006-654 that is at issue in this case. The Legislature's express purpose in enacting the statute was:
" 'to provide that a prior conviction for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory could be considered by a court for enhancement of the sentence of a person who is convicted for driving under the influence[.]'
"Exhibit 'C.' [Act No. 06-654, Ala. Acts 2006.]
"The purpose of the statute was not to reinstate the five year provisions into Subsections ... (g) and (h)--had the Legislature chosen to do so, it could have clearly and expressly made those alterations to those subsections in Act 2006-654 by reinstating the five year provisions that it stripped away in Act 97-556. It could also have drafted Subsection (o) to provide that 'only' those convictions within the five-year period 'shall be considered.' Instead, the Legislature--albeit somewhat inarticulately--appears to have attempted to strengthen the statute by ensuring that all convictions within that five year period, from any other state, municipal, or territorial jurisdiction, must be considered for purposes of the statute's recidivism provisions. The language of the statute has left the trial courts with discretion to consider convictions outside of that period.
"It is acknowledged that, in enacting Act 2006-654 to require the trial court to consider all DUI convictions from other states, municipalities, and territories to overcome the Bertram result, the Legislature may have inadvertently weakened the statute--but not to the extent suggested by Hankins. After the enactment of Act 97-556, but before the enactment of Act 2006-654, there was no question that the trial court was required to consider a DUI conviction, regardless of its age, in reviewing a defendant's third or fourth conviction under Subsections (g) and (h); as noted above, the five year period for a second conviction under Subsection (f) has remained unchanged. As it now stands, the statute, through Subsection (o), requires the trial court to consider convictions within a five year period for purposes of it's the [sic] recidivism provisions ('shall be considered'), but its language has left open the consideration of older convictions to the trial court's discretion. While apparently diminishing the previous requirement that all such convictions, regardless of age, be considered, the Legislature's language has allowed the trial courts to retain the discretion to consider convictions outside the five year period." (State's brief at pp. 16-18.) The gravamen of the State's argument, as we understand it, is that because the legislature has expressed a strong public policy of discouraging driving a vehicle while under the influence of alcohol [FN5] and because the legislature has repeatedly amended § 32-5A-191 over the years to increase the punishment for repeat offenders, the legislature could not have intended to weaken the law by limiting the prior DUI convictions that could be considered for sentence enhancement to only those convictions that occurred within the five-year period immediately preceding the current conviction.
FN5. For example, in Act No. 95-784, § 1, Ala. Acts 1995, which, among other things, increased the fine for a DUI conviction and lowered the blood-alcohol level required for a conviction, the legislature stated:
"(1) Driving a vehicle while under the influence of alcohol or a controlled substance continues to be a major problem on the highways of our state and causes the death or injury of thousands of our citizens each year.
"(2) The Legislature should use whatever authority is available to it to discourage driving a vehicle while under the influence of alcohol or a controlled substance, including the levying of fines therefor at a level which will discourage such activity.
"....
"(9) This act should be liberally construed to accomplish its purposes and to promote the policies contained therein which are declared to be the public policy of this state."
*4 In Soles v. State, 820 So.2d 163 (Ala.Crim.App.2001) , this Court stated:
" 'The first rule of statutory construction is that the intent of the legislature should be given effect. Ex parte McCall, 596 So.2d 4 (Ala.1992) ; Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301 (Ala.1991) . However, when possible, the intent of the legislature should be gathered from the language of the statute itself. Dillard, supra. Thus, where the language of the statute is plain, the court must give effect to the clear meaning of that language. Ex parte United Service Stations, Inc., 628 So.2d 501 (Ala.1993) ; IMED Corp. v. Systems Eng'g Associates Corp., 602 So.2d 344 (Ala.1992) .'
"Beavers v. County of Walker, 645 So.2d 1365, 1376-77 (Ala .1994) . See also Tuscaloosa County Comm'n v. Deputy Sheriffs' Ass'n of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991) ('Words used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.' (citations omitted)). Moreover, this Court has stated:
" ' "In determining legislative intent, statutes are, where possible, construed in harmony with statutes existing at the time of enactment, so that each is afforded a field of operation." Sullivan v. State ex rel. Attorney General of Alabama, 472 So.2d 970, 973 (Ala.1985) . "It is a fundamental principle of statutory construction that in enacting the statute the legislature had full knowledge and information as to prior and existing law and legislation on the subject of the statute." Miller v. State, 349 So.2d 129, 131 (Ala.Cr.App.1977) . "[I]n cases of conflicting statutes on the same subject, the latest expression of the legislature is the law. Where a conflict exists between statutes, the last enactment must take precedence." [Baldwin County v.] Jenkins, 494 So.2d [584,] 588 [ (Ala.1986) ] (citations omitted).'
" Hatcher v. State, 547 So.2d 905, 906-07 (Ala.Crim.App.1989) ."
820 So.2d at 164-65 .
Expanding on these principles, this Court in Carroll v. State, 599 So.2d 1253 (Ala.Crim.App.1992) , noted:
" 'Where, as here, this Court is called upon to construe a statute, the fundamental rule is that the court has a duty to ascertain and effectuate legislative intent expressed in the statute, which may be gleaned from the language used, the reason and necessity for the act, and the purpose sought to be obtained.' Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985) . '[T]he fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute.... In construing the statute, this Court should gather the intent of the legislature from the language of the statute itself, if possible.... We may also look to the reason and necessity for the statute and the purpose sought to be obtained by enacting the statute.' Pace v. Armstrong World Industries, Inc., 578 So.2d 281, 283 (Ala.1991) . 'If possible, the intent of the legislature should be gathered from the language of the statute itself. However, if the statute is ambiguous or uncertain, the Court may consider conditions that might arise under the provisions of the statute and examine the results that will flow from giving the language in question one particular meaning rather than another.' Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1305 (Ala.1991) .
*5 " '[A]mbiguous criminal statutes must be narrowly interpreted, in favor of the accused.' United States v. Herring, 933 F.2d 932, 937 (11th Cir.1991) . '[I]t is well established that criminal statutes should not be "extended by construction." ' Ex parte Evers, 434 So.2d 813, 817 (Ala.1983) . ' "[C]riminal statutes must be strictly construed, to avoid ensnaring behavior that is not clearly proscribed." ' United States v. Bridges, 493 F.2d 918, 922 (5th Cir.1974) .
" 'In United States v. Boston & M. RR Co., 380 U.S. 157, 85 S.Ct. 868, 870, 13 L.Ed.2d 728 (1965) , the Supreme Court stated:
" ' "A criminal statute is to be construed strictly, not loosely. Such are the teachings of our cases from United States v.. Wiltberger, 5 Wheat. 76, 5 L.Ed. 37, [ (1820) ], down to this day. Chief Justice Marshall said in that case:
" ' " 'The rule that penal laws are to be construed strictly, is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.' Id., p. 95.
" ' "The fact that a particular activity may be within the same general classification and policy of those covered does not necessarily bring it within the ambit of the criminal prohibition. United States v. Weitzel, 246 U.S. 533, 38 S.Ct. 381, 62 L.Ed. 872 [ (1918) ]."
" 'Moreover, "one 'is not to be subjected to a penalty unless the words of the statute plainly impose it,' Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362, 25 S.Ct. 443, 49 L.Ed. 790 [ (1905) ]. '[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.' United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct. 227, 229-230, 97 L.Ed. 260 [ (1952) ]." United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971) .'
"Bridges, 493 F.2d at 923 .
" 'Words used in the statute must be given their natural, plain, ordinary, and commonly understood meaning.' Alabama Farm Bureau Mut. Casualty Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984) . The general rule of construction for the provisions of the Alabama Criminal Code is found in Ala.Code 1975, § 13A-1-6 : 'All provisions of this title shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law, including the purposes stated in section 13A-1-3.' Among the purposes stated in § 13A-1-4 is that found in subsection (2): 'To give fair warning of the nature of the conduct proscribed.' "
599 So.2d at 1264-65 .
In Ex parte Bertram, supra, the Alabama Supreme Court, construing § 32- 5A-191 , stated, in part:
*6 " ' "[I]t is well established that criminal statutes should not be 'extended by construction.' " ' Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993) (quoting Ex parte Evers, 434 So.2d 813, 817 (Ala.1983) , quoting in turn Locklear v. State, 50 Ala.App. 679, 282 So.2d 116 (1973) ).
" 'A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956) .
" 'Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952) .
" 'One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing [Young v. State], 58 Ala. 358 (1877) .
" 'No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra.'
"Clements v. State, 370 So.2d 723, 725 (Ala.1979) (quoted in whole or in part in Ex parte Murry, 455 So.2d 72, 76 (Ala.1984) , and in Ex parte Walls, 711 So.2d 490, 494 (Ala.1997) ) (emphasis added).
" ' "Statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used ...." United States v. Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 127, 81 L.Ed. 127 (1936) . See also, Ex parte Evers, 434 So.2d 813, 816 (Ala.1983) ; Fuller v. State, 257 Ala. 502, 60 So.2d 202, 205 (1952) .'
"Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993) (emphasis added). '[T]he fundamental rule [is] that criminal statutes are construed strictly against the State. See Ex parte Jackson, 614 So.2d 405 (Ala.1993) .' Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000) (emphasis added). The 'rule of lenity requires that "ambiguous criminal statute[s] ... be construed in favor of the accused." ' Castillo v. United States, 530 U.S. 120, 131, 120 S .Ct.2090, 147 L.Ed.2d 94 (2000) (paraphrasing Staples v. United States, 511 U.S. 600, 619 n. 17, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) )."
Ex parte Bertram, 884 So.2d at 891-92 .
In addition, it is also understood that the law favors rational and sensible construction. See King v. State, 674 So.2d 1381 (Ala.Crim.App.1995) . In construing statutes, courts are not required to abandon common sense. See Sellers v. State, 935 So.2d 1207 (Ala.Crim.App.2005) . In Garrison v. Sumners, 223 Ala. 17, 134 So. 675 (1931) , the Alabama Supreme Court aptly noted:
"The statute in question belongs to the criminal law. It is a fundamental rule of construction that penal statutes must be strictly construed, but should not be subjected to strained or unnatural construction in order to work exemption from their penalties. 36 Cyc. 1184. On the other hand, such statutes are not to be extended by construction. Gunter v. Leckey, 30 Ala. 591 [ (1857) ]. In Huffman v. State, 29 Ala. 44 [ (1856) ], quoted in Walton v. State, 62 Ala. 199 [ (1878) ], this court said: 'While we disclaim the right to extend a criminal statute to cases out of its letter, yet we hold it to be our duty to apply it to every case clearly within the cause or mischief of making it, when its words are broad enough to embrace such case.' "
*7 223 Ala. at 18, 134 So. at 676 .
With these traditional, well-settled rules of statutory review in mind, we turn to the issue presented.
We begin by noting the extensive legislative history of § 32-5A-191 . See Act No. 80-434, Ala. Acts 1980, p. 604, § 9-102; Act No. 81-803, Ala. Acts 1981, p. 1412, § 1; Act No. 83-620, Ala. Acts 1983, p. 959, § 1; Act No. 84- 259, Ala. Acts 1984, p. 431, § 1; Act No. 94-590, Ala. Acts 1994, p. 1089, § 1; Act No. 95-784, Ala. Acts 1995, p. 1862, § 2; Act No. 96-341, Ala. Acts 1996, p. 416, § 1; Act No. 96-705, Ala. Acts 1996, p. 1174, § 1; Act No. 97-556, Ala. Acts 1997, p. 985, § 1; Act No. 99-432, Ala. Acts 1999, p. 787, § 1; Act No. 2000-677, Ala. Acts 2000, p. 1376, § 1; Act No. 2002-502, Ala. Acts 2002, p. 1299, § 1; Act No. 2005-326, Ala. Acts 2005 (1st Sp.Sess.), p. 795, § 1; Act No. 2006-654, Ala. Acts 2006, § 1. The numerous amendments to § 32-5A-191 have generally been either to refine certain language in the statute, to redefine the scope of the statute, or to increase the various fines, penalties, and incarceration ranges authorized to be imposed for DUI convictions. For purposes of the issue presented here, the evolution of the statute's main sentencing provisions is most important.
Section 32-5A-191 was first enacted by Act No. 80-434, § 9-102, Ala. Acts 1980; that Act provided, in pertinent part:
"(c) Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than one hundred dollars ($100) nor more than one thousand ($1,000), or by both such fine and imprisonment....
"(d) On a second or subsequent conviction within a five-year period, the person convicted of violating this section shall be punished by a fine of not less than two hundred dollars ($200) nor more than fifteen hundred dollars ($1,500) or by imprisonment in the county or municipal jail for not more than one year, or by both such fine and imprisonment...."
(Emphasis added.) The amendments in 1981 and 1984, see Act No. 81-803, Ala. Acts 1981, and Act No. 84-259, Ala. Acts 1984, made no substantive changes relevant to this case. Act No. 83-620, Ala. Acts 1983, however, made several changes strengthening various sentencing provisions, including increasing the fine to be imposed, adding a mandatory jail sentence upon a second conviction, and adding a subsection to provide for an additional penalty upon a third or subsequent conviction; that subsection provided, in pertinent part:
" '(e) On a third or subsequent conviction within a five-year period, the person convicted of violating this section shall be punished by a fine of not less than $1,000.00 nor more than $5,000.00 and by imprisonment, which may include hard labor, in the county or municipal jail for not less than sixty (60) days nor more than one year, to include a minimum of 60 days which shall be served in the county or municipal jail and which cannot be probated or suspended....' "
*8 (Emphasis added.)
In 1994, the legislature enacted Act No. 94-590, Ala. Acts 1994, which, for the first time, allowed for a felony sentence for DUI; that Act amended § 32-5A-191 to read, in pertinent part:
" '(c) Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than two hundred fifty dollars ($250) nor more than one thousand dollars ($1, 000), or by both such fine and imprisonment....
" '(d) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by a fine of not less than five hundred dollars ($500) nor more than two thousand five hundred dollars ($2,500) and by imprisonment, which may include hard labor in the county or municipal jail for not more than one year....
" '(e) On a third conviction within a five-year period, a person convicted of violating this section shall be punished by a fine of not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) and by imprisonment, which may include hard labor, in the county or municipal jail for not less than 60 days nor more than one year, to include a minimum of 60 days which shall be served in the county or municipal jail and cannot be probated or suspended....
" '(f) On a fourth or subsequent conviction within a five-year period, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than two thousand dollars ($2,000) nor more than five thousand dollars ($5,000) and by imprisonment of not less than one year and one day nor more than 10 years....' "
(Emphasis added.) Although Act No. 94-590 increased the punishment for DUI to allow for a felony sentence, it nevertheless continued the five-year requirement, i.e., that only those prior convictions occurring with five years of the most recent conviction could be used for sentence enhancement.
The next two amendments made no substantive changes relevant to the issue here. See Act No. 95-784, Ala. Acts 1995, and Act No. 96-341, Ala. Acts 1996. [FN6] In 1997, however, the legislature enacted Act No. 97-556, Ala. Acts 1997, which, among other things, removed the long-standing five-year requirement from subsections (g) and (h); that Act amended § 32-5A-191 to read, in pertinent part:
FN6. Act No. 96-341 redesignated subsections (c), (6 d), (e), and (f) in § 32-5A-191 , as (d), (e), (f), and (g); Act No. 97-556, Ala. Acts 1997, redesignated the pertinent sections as (e), (f), (g), and (h).
" '(e) Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than six hundred dollars ($600) nor more than two thousand one hundred dollars ($2,100), or by both a fine and imprisonment....
" '(f) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by a fine of not less than one thousand one hundred dollars ($1,100) nor more than five thousand one hundred dollars ($5,100) and by imprisonment, which may include hard labor in the county or municipal jail for not more than one year....
*9 " '(g) On a third conviction, a person convicted of violating this section shall be punished by a fine of not less than two thousand one hundred dollars ($2,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment, which may include hard labor, in the county or municipal jail for not less than 60 days nor more than one year, to include a minimum of 60 days which shall be served in the county or municipal jail and cannot be probated or suspended....
" '(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years....' "
(Emphasis added.) Interestingly, this amendment of § 32-5A191 did not remove the five-year requirement from subsection (f), and that requirement remains in subsection (f) today. The 1999 amendment, Act No. 99-432, Ala. Acts 1999, added subsection (n), which provides:
" '(n) When any person over the age of 21 years is convicted pursuant to this section and a child under the age of 14 years was present in the vehicle at the time of the offense, the defendant shall be sentenced to double the minimum punishment that the person would have received if the child had not been present in the motor vehicle.' '?DCThe 2000 amendment, Act No. 2000-677, Ala. Acts 2000, made no substantive changes relevant to the issue here, although it did add a subsection (o) to the statute providing for the suspension of a repeat offender's vehicle registration. The next two amendments, Act No. 2002- 502, Ala. Acts 2002, and Act No. 2005-326, Ala. Acts 2005, likewise made no substantive changes relevant to the issue here.
However, Act No. 2006-654, Ala. Acts 2006, the Act at issue in this case, was, as noted above, enacted by the legislature in 2006. That Act, among other things, moved the language in the existing subsection (o) (originally added in 2000) to subsection (p), and then added the following language as subsection (o):
" '(o) A prior conviction within a five-year period of driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory shall be considered by a court for imposing a sentence pursuant to this section.' "
(Emphasis added.) [FN7] Significant to this case is the reference in subsection (o) to prior DUI convictions "from this state," i.e., prior in-state convictions under § 32-5A-191 , and the inclusion of the five-year language that had previously, in 1997, been specifically removed from subsections (g) and (h).
FN7. We note that, in addition to subsection (o), two other subsections in § 32-5A-191 contain language referring to the five-year requirement. Subsection (k) provides for the deposit into various funds of fines collected from individuals convicted of DUI, and subsection (p) provides for the suspension by the Alabama Department of Revenue of a repeat offender's vehicle registration. Subsection (k) was added in 1994, see Act No. 94-590, Ala. Acts 1994, when the five-year requirement was still contained in subsections (g) and (h), but was not amended in 1997 when the five-year requirement was removed from subsections (g) and (h), see Act No. 97-556, Ala. Acts 1997. The five-year requirement in subsection (p) was originally added in 2000 as subsection (o), see Act No. 2000-677, Ala. Acts 2000, after the five-year requirement had been removed from subsections (g) and (h), but no corresponding changes in subsections (g) and (h) were made at that time. However, neither subsection (k) nor subsection (p) specifically deals with the use of prior DUI convictions for sentencing purposes. After examining the timing and substance of the various amendments to § 32-5A-191 , we conclude that the legislature's inclusion of the language relating to the five-year requirement in subsections (k) and (p) sheds no light on its intent in amending subsection (o) in 2006.
We have no doubt that, as the State asserts, the 2006 amendment of subsection (o) was, at least in part, the legislature's response to the Alabama Supreme Court's 2003 decision in Ex parte Bertram, supra. In Ex parte Bertram, the Court construed § 32-5A-191 as allowing only prior in-state DUI convictions under § 32-5A-191 to be used for sentence enhancement under subsection (h). It is clear to this Court, based on the plain language of subsection (o), that the legislature intended to amend subsections (f), (g), and (h) to clarify that prior out-of-state DUI convictions (both state and municipal) are to be considered for purposes of sentencing under § 32-5A-191 . Likewise, with the specific mention of instate municipal convictions in subsection (o), the amendment may also have been to clarify § 32-5A-191 in light of this Court's unpublished memorandum in Hoover v. State (No. CR-04- 0159, June 10, 2005), 926 So.2d 1082 (Ala.Crim.App.2005) (table), and the Alabama Supreme Court's subsequent decision to quash the writ in that case. See Ex parte Hoover, 928 So.2d 278 (Ala.2005) . In Hoover, relying on McDuffie v. State, 712 So.2d 1118 (Ala.Crim.App.1997) , this Court refused to extend Ex parte Bertram and held that prior in-state municipal DUI convictions could be used for sentence enhancement under § 32-5A-191 . The Alabama Supreme Court, after initially granting certiorari review, quashed the writ without opinion. However, Justice Stuart dissented, noting her continued opposition to the Supreme Court's decision in Ex parte Bertram and stating that she would have affirmed this Court's decision in Hoover and overruled Ex parte Bertram, 928 So.2d at 280 . Therefore, we can presume that, when it adopted the 2006 amendment to § 32-5A-191 , the legislature was aware that the Supreme Court had not directly addressed and settled the issue whether Ex parte Bertram precluded the consideration of prior in-state municipal DUI convictions for purposes of sentencing under § 32-5A-191 , and, further, that the legislature intended to amend subsections (f), (g), and (h), to clarify that prior in-state municipal DUI convictions are to be considered for purposes of sentencing under § 32-5A-191 .
*10 However, the legislature's clarification of the word "conviction" in subsections (f), (g), and (h), i.e., that that word includes prior out-of-state DUI convictions as well as prior in-state municipal convictions, is the only unambiguous portion of the 2006 amendment of subsection (o). By including the limiting language "within a five-year period" in subsection (o), the legislature went far beyond what was required to respond to Ex parte Bertram and/or Hoover. And this addition of the five-year requirement renders subsection (o), on its face, in direct conflict with subsections (g) and (h), which not only do not contain the five-year requirement, but from which the five-year requirement was specifically removed in 1997. Therefore, based on our review of the legislative history of § 32-5A-191 , and the specific five-year language of subsection (o), as well as the language in subsection (h) omitting comparable limiting language, we conclude that the five-year language in subsection (o) is ambiguous, that the legislature's intent in amending subsection (o) is not readily discernible from the plain language of the statute, and that we must construe § 32-5A-191 according to the traditional, well-settled rules of statutory construction we have quoted above. For the reasons explained below, we have no choice but to conclude that those rules of statutory construction require this Court to adopt the construction urged by Hankins rather than the construction suggested by the State.
The State's first argument--that the legislature intended in subsection (o) only to reiterate that those prior convictions within a five-year period must be considered for purposes of sentence enhancement, but that it left the door open for the trial court to exercise its discretion and consider other prior convictions outside that five-year period--is easily rejected. As the State notes, the legislature did not amend subsections (g) and (h) by adding a five-year requirement, as it could have easily done. Rather, it chose to amend subsection (o) by adding the five-year language. In addition, as the State argues, subsection (o) does not state that "only" those prior convictions that occurred within a five-year period "shall be considered" by the trial court for purposes of sentencing, but merely states that prior convictions within a five-year period shall be considered. However, subsections (g) and (h) already contain the word "shall" and are mandatory sentencing provisions requiring a trial court to consider prior DUI convictions in sentencing. If the State's position is correct, then subsection (o), on its face, appears to have accomplished nothing more than mandating what the mandatory sentencing provisions in subsections (g) and (h) already required--the consideration of prior DUI convictions within five years for purposes of sentencing. However, adopting such a construction would require this Court to find that, in requiring in subsection (o) that a prior DUI conviction under § 32-5A-191 within a five-year period be considered for sentencing purposes, the legislature deliberately created a redundancy in the statute. We cannot presume that the legislature intended to do such a useless act. See Soles, supra, noting that it is a fundamental principle of statutory construction that in enacting a statute the legislature is presumed to have had full knowledge and information as to prior and existing law and legislation on the subject of the statute. Therefore, contrary to the State's urging, we cannot rule out the possibility that subsection (o) was intended to limit the prior DUI convictions that could be used for sentencing purposes under subsections (g) and (h) to those that occurred within the preceding five-year period.
*11 The State's second argument is stronger, yet still unpersuasive. The State points out that the legislature's repeated amendments to § 32-5A-191 over the years have operated to strengthen the DUI statute, not weaken it, and that subsection (o) was, at least in part, meant to again strengthen the statute by responding to the Supreme Court's opinion in Ex parte Bertram interpreting the statute as prohibiting the consideration of prior out-of-state DUI convictions. Thus, according to the State, the legislature could not have intended to weaken the law by limiting the prior DUI convictions that could be considered for sentence enhancement to only those convictions that occurred within a five-year period. As noted above, we agree with the State that the 2006 amendment to § 32-5A-191 was, at least in part, a response to the Supreme Court's opinion in Ex parte Bertram, and possibly a response to this Court's unpublished memorandum in Hoover. And it is true, as the State points out, that the legislature has incrementally expanded the scope of § 32- 5A191 and increased the fines, penalties, and incarceration ranges available for driving under the influence, and has expressed a strong interest in deterring and punishing those individuals who drive on Alabama's roads while under the influence of alcohol and drugs--a policy that would seem inconsistent with weakening § 32-5A-191 by restricting the use of prior DUI convictions to only those that occurred within a five-year period. However, the State's argument fails to recognize that for the first 17 years of the existence of the statute, all the sentencing provisions in the statute included a five-year requirement. From its adoption in 1980 until its amendment in 1997, subsections (g) and (h) both included five-year requirements. [FN8] During this time, the legislature obviously saw no conflict between its stated interests in deterrence and punishment and restricting the use of prior convictions for sentence enhancement to those occurring within a five-year period. Therefore, although the State's argument that the legislature did not intend to weaken the DUI statute by reinstating the five-year requirement is not unreasonable, the converse is likewise not unreasonable, i.e, that the legislature did, in fact, intend to reinstate the five-year requirement. As noted above, the scope of an ambiguous criminal statute cannot be extended by implication. Ambiguous criminal statutes must be strictly construed against the State, and all doubts concerning the interpretation of such statutes are to predominate in favor of the accused. See Carroll, supra; and Ex parte Bertram, supra. Therefore, we reject the State's argument that, given the legislative history of § 32-5A-191 , the legislature could not have intended to impose a five-year requirement on the use of prior DUI convictions. [FN9]
FN8. In addition, subsection (f) still includes a five-year requirement.
FN9. Although the State does not appear to argue that the five-year limitation in subsection (o) applies only to out-of-state convictions and in-state municipal convictions and does not apply to in-state convictions under § 32-5A-191 , we note that there is nothing in the statute that suggests that the legislature could have contemplated such disparate treatment of prior DUI convictions for sentencing purposes.
Applying the rules of statutory construction set forth above, including the rule of lenity, we have no choice but to hold that by amending subsection (o) in the 2006 amendment to § 32-5A-191 , the legislature has restricted the use of prior DUI convictions for sentencing purposes to only those convictions that occurred within the five-year period immediately preceding the current conviction. In other words, the five-year requirement that was removed from subsections (g) and (h) in 1997 has now been reinstated. To hold otherwise would require this Court not only to ignore the well-established rules of statutory construction, but to completely ignore specific language in a statute based on the unfounded assumption that the inclusion of that language was a mistake. This we cannot do.
*12 We recognize the effect of our interpretation on DUI sentencing. In this case, for example, Hankins has seven prior DUI convictions spanning more than 15 years. Obviously, he has a propensity to drink and drive, yet he will receive only a misdemeanor penalty for his eighth conviction. [FN10] The stated public policy of this State is to deter and punish those who repeatedly drive on Alabama's roads under the influence of alcohol and jeopardize the lives of Alabamians on a daily basis. However, the wisdom of the 2006 amendment is not for this Court to question. As the Alabama Supreme Court noted in Ex parte National Western Life Insurance Co., 899 So.2d 218, 226-27 (Ala.2004) , "a perceived lack of wisdom in a statute [ ] does not empower this Court to rewrite the statute, even if we wanted to do so." If this Court's construction is, in fact, not the intent of the legislature, we urge the legislature to promptly clarify its intent through appropriate legislation. Until that time, we have no choice but to follow the rules of statutory construction and to hold that the trial court erred in considering for purposes of sentence enhancement any of Hankins's prior convictions that occurred more than five years before his present conviction.
FN10. In contrast, for his seventh conviction, which appears from the record to have been in case no. CC-04-136, see note 4, supra, Hankins received a felony sentence under subsection (h) because that conviction occurred before the 2006 amendment. Interestingly, his probation for the felony sentence was revoked as a result of the present conviction, for which a misdemeanor sentence will be imposed.
Based on the foregoing, we affirm Hankins's conviction for DUI. However, we remand this case for the trial court to resentence Hankins in accordance with the requirements of § 32-5A-191 as interpreted by this opinion. Due return shall be filed within 42 days from the date of this opinion.
AFFIRMED AS TO CONVICTION; REMANDED WITH DIRECTIONS AS TO SENTENCING.
BASCHAB , P.J., and McMILLAN , WISE , and WELCH , JJ., concur.
--- So.2d ----, 2007 WL 2811970 (Ala.Crim.App.)

Lack Of Probable Cause Requires Suppression Motion Not Motion to Dismiss

2007-08-25T10:34:00.000-04:00

959 So.2d 698

(Cite as: 959 So.2d 698)

Court of Criminal Appeals of Alabama.

Bradford Savage Dominic MULDOON

STATE.

CR-04-1758.

Sept. 29, 2006.

Rehearing Denied Dec. 1, 2006.

Background: Following a guilty plea after denial of motion to dismiss, defendant was convicted in the Houston Circuit Court, No. CC-04-4, S. Edward Jackson, J., of driving under the combined influence of alcohol and controlled substances. Defendant appealed.

Holding: The Court of Criminal Appeals, Cobb, J., held that defendant was not entitled to dismissal of Uniform Traffic Ticket and Complaint (UTTC), even if arresting officer lacked probable cause to effect arrest and even if arrest warrant separate from UTTC should have been obtained.

Affirmed.

West Headnotes

[1] Automobiles 351.1

48Ak351.1

[1] Criminal Law 394.4(9)

110k394.4(9)

Defendant was not entitled to dismissal of Uniform Traffic Ticket and Complaint (UTTC), which charged defendant with driving under the combined influence of alcohol and controlled substances, even if arresting officer lacked probable cause to effect arrest and even if arrest warrant separate from UTTC should have been obtained; remedy would have been suppression of evidence, not dismissal of charge. U.S.C.A. Const.Amend. 4; Code 1975, § 32-5A-191(a)(4).

[2] Automobiles 351.1

48Ak351.1

[2] Criminal Law 1139

110k1139

In misdemeanor traffic cases, the Uniform Traffic Ticket and Complaint (UTTC) is the formal charging instrument, analogous to an indictment and conferring original subject-matter jurisdiction on the District or Municipal Court, and on the Circuit Court in the case of a de novo appeal. Rules Crim.Proc., Rule 2.2(d).

[3] Automobiles 351.1

48Ak351.1

[3] Criminal Law 99

110k99

Illegal arrest does not void a subsequent conviction, does not bar prosecution on a Uniform Traffic Ticket and Complaint (UTTC) returned after the arrest, and does not entitle the accused to a dismissal of the charges against him. U.S.C.A. Const.Amend. 4.

[4] Criminal Law 394.4(9)

110k394.4(9)

Remedy for illegal pretrial detention, other than pretrial release, may be the suppression of any evidence obtained as a result of that illegal detention, not the dismissal of the charge against the accused. U.S.C.A. Const.Amend. 4.

*699 Thomas Scott Smith, Jr., Dothan, for appellant.

Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.

COBB, Judge.

Bradford Savage Dominic Muldoon appeals from his misdemeanor conviction, pursuant to a guilty plea, for driving under the combined influence of alcohol and controlled substances, a violation of § 32-5A-191(a)(4), Ala.Code 1975. Muldoon was sentenced to 12 months in the county jail; that sentence was suspended on the condition that he complete two years' probation. He was also ordered to pay a fine of $600 and court costs, to complete a substance-abuse program, and to surrender his driver's license.

Before entering a guilty plea, Muldoon reserved for appellate review "the issue as to whether or not the arrest was a lawful arrest."

At the hearing on Muldoon's motion to dismiss the charge, the following facts were stipulated: On March 30, 2003, Muldoon was involved in a single-vehicle accident. He was transported unconscious from the scene of the accident to Flowers Hospital, where he remained in a coma for three days. State Trooper Mark Nielson arrived at the accident scene to investigate the accident after Muldoon had been transported to the hospital. There is no information in the record concerning Trooper Nielson's investigation at the accident scene. Trooper Nielson first saw Muldoon at Flowers Hospital, where Muldoon was in a coma. Trooper Nielson did not speak to Muldoon until some time after Muldoon awoke from the three-day coma. There is nothing in the record concerning what information Trooper Nielson obtained after arriving at the hospital. On March 30, 2003, Trooper Nielson issued a Uniform Traffic Ticket and Complaint ("UTTC") to Muldoon charging Muldoon with misdemeanor driving under the influence ("DUI"). That UTTC was later dismissed, and on August 21, 2003, a new UTTC was issued to Muldoon charging him with driving under the combined influence of alcohol and controlled substances.

Based on the above stipulated facts, Muldoon argued that the charges should be dismissed because, he says, his arrest was illegal. According to Muldoon, Trooper Nielson did not see him at the accident scene, therefore, Nielson had no personal knowledge of facts or circumstances--i.e., probable cause--to justify a warrantless arrest. According to Muldoon, the mere issuance of a summons pursuant to a UTTC was insufficient to effect an arrest. Muldoon argued that under the facts of his case the proper procedure to perfect his arrest would have been to obtain an arrest warrant as required by § 32-5- 310, Ala.Code 1975.

Section 32-5-310, Ala.Code 1975, [FN1] permits a police officer to arrest a person for *700 a misdemeanor without a warrant if the offense is committed in the officer's presence. Conversely, § 32-5-310, Ala.Code 1975, requires an arrest for a misdemeanor be made pursuant to a warrant if the officer does not observe the commission of the offense. Moreover, Muldoon argued that § 32-5-171, Ala.Code 1975, [FN2] specifically addresses DUI charges by allowing an officer who did not witness the accident, but who is on the scene with the driver and determines that the driver is under the influence, to arrest the driver at the scene of the accident. See Ingram v. State, 720 So.2d 1036 (Ala.Crim.App.1998)(arrest at the hospital upheld where investigating troopers testified that based on the strong odor of alcohol on driver at the accident scene, and what appeared to be the path of vehicles before the crash, they formed the opinion at the accident scene that driver was intoxicated).

FN1. Section 32-5-310 provides:

"Any peace officer, including state troopers, sheriffs and their deputies, constables and their deputies, police officers and marshals of cities or incorporated towns, county police or patrols, state or county license inspectors and their deputies, and special officers appointed by any agency of the State of Alabama for the enforcement of its laws relating to motor vehicles, now existing or hereafter enacted, shall be authorized, and it is hereby made the duty of each of them to enforce the provisions of this chapter and to make arrests for any violation or violations thereof, without warrant if the offense be committed in his presence, and with warrant if he does not observe the commission of the offense. If the arrest be made without warrant, the accused may elect to be immediately taken before the nearest court having jurisdiction, whereupon it shall be the duty of the officer to so take him. If the accused elects not to be so taken, then it shall be the duty of the officer to require of the accused a bail bond in a sum not to exceed $300.00, conditioned that the accused binds himself to appear in the nearest court having jurisdiction at the time fixed in the bond. In case the arrested person fails to appear on the day fixed, the bond shall be forfeited in the manner as is provided for the forfeiture of bonds in other cases. No officer shall be permitted to take a cash bond. The officer making the arrest and taking the bond shall report the same to the court having jurisdiction within 18 hours after taking such bond."

FN2. Section 32-5-171 provides:

"A uniformed police officer, state trooper, county sheriff or his deputy or member of a municipal police force may arrest, at the scene of a traffic accident, any driver of a vehicle involved in the accident if upon personal investigation, including information from eyewitnesses, the officer has reasonable grounds to believe that the person by violating Section 32- 5A-191 contributed to the accident. He may arrest such a person without a warrant although he did not personally see the violation."

Therefore, Muldoon argued that because Trooper Nielson was not a witness to the accident and was not on the scene at the same time as Muldoon, his warrantless arrest was "an illegal arrest in violation of the Alabama law and his right to procedural due process." Thus, Muldoon argued that the case against him was due to be dismissed.

The State responded in part by arguing that Muldoon agreed to turn himself in after his recovery and release from the hospital. At that point, the State argued, the investigation had been completed, and, thus, an arrest warrant was unnecessary. [FN3]

FN3. The stipulation of facts is devoid as to facts related to probable cause to arrest. The record contains references to medical records; however, the content of these records were not discussed on the record and the medical records were not entered into evidence.

On April 26, 2005, the trial court denied the motion to dismiss by notation on the case-action summary sheet. On May 2, 2005, before trial, the parties were heard on miscellaneous motions. After hearing arguments on the various motions, the trial court orally denied all pending motions. With the complete acquiescence of the trial court, Muldoon reserved for appellate review issues, see infra, before entering a guilty plea.

On appeal, Muldoon contends that the trial court erred in denying his motion to dismiss because his arrest was illegal in that "the officer did not see the defendant drive a vehicle, inside a vehicle, or even at the scene of a vehicle accident" and thus there was no probable cause [FN4] to support a *701 warrantless arrest. (Muldoon's brief at 12.) Also, Muldoon contends that Trooper Nielson did not issue the new UTTC until almost five months after the accident. Thus, according to Muldoon, there was no valid reason the officer could not have obtained a lawful warrant to execute a valid arrest during that period of time.

FN4. In some instances Muldoon's brief refers to a lack of reasonable suspicion; it is clear the argument concerns probable cause.

It is unclear whether Muldoon's appellate claim regarding the five-month delay in issuing the second UTTC is a separate claim that he did not reserve before entering his guilty plea or an argument in support of the claim reserved at trial. Nevertheless, as the State correctly asserted, the statute of limitations for a misdemeanor offense is one year. § 15-3-2, Ala.Code 1975 ("Unless otherwise provided, the prosecution of all misdemeanors before a circuit or district court must be commenced within 12 months after the commission of the offense."). Thus, the UTTC was timely issued within one year.

[1][2] As to Muldoon's claim that his arrest was illegal because, he says, there was no probable cause and no arrest warrant was issued, we note:

"In misdemeanor traffic cases, the UTTC is the formal charging instrument, analogous to an indictment and conferring original subject matter jurisdiction on the district or municipal court, and on the circuit court in the case of a de novo appeal. Young[ v. City of Hokes Bluff], 611 So.2d [401] at 411-13 [ (Ala.Crim.App.),] (Bowen, J., concurring in result)[, aff'd, 611 So.2d 414 (Ala.1992) ]; Sanders v. City of Birmingham, 669 So.2d 236, 238 (Ala.Cr.App.1995). See also Rule 2.2(d), Ala.R.Crim.P., as amended effective August 1, 1997."

Stoll v. State, 724 So.2d 90, 91-92 (Ala.Crim.App.1998).

[3] " ' "As a general rule, the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent [UTTC], by which the court acquires jurisdiction over the person of the defendant." ' " Taylor v. State, 589 So.2d 804, 805 (Ala.Crim.App.1991)(quoting Coral v. State, 551 So.2d 1181, 1182 (Ala.Crim.App.1989), quoting in turn 41 Am.Jur.2d Indictments and Informations § 18 (1968) ). " 'An illegal arrest "does not void a subsequent conviction," ... does not bar prosecution on [a UTTC] returned after the arrest, ... and does not entitle the accused to a dismissal of the charges against him....' " Holland v. State, 615 So.2d 1313, 1317 (Ala.Crim.App.1993) (quoting Atwell v. State, 594 So.2d 202, 208 (Ala.Crim.App.1991)).

[4] Therefore, even if, as Muldoon alleges, the arresting officer lacked probable cause to effect the arrest, and if an arrest warrant separate from the UTTC should have been obtained, Muldoon was not entitled to have the UTTC (indictment) dismissed. " '[T]he remedy for illegal pretrial detention, other than pretrial release, may be the suppression of any evidence obtained as a result of that illegal detention--not the dismissal of the charge against the accused.' " Taylor v. State, 589 So.2d at 806 (quoting Speers v. State, 545 So.2d 247, 250 (Ala.Crim.App.1989)). A motion to dismiss was not the appropriate remedy for the allegedly illegal arrest.

Based on the foregoing, we affirm the trial court's denial of Muldoon's motion to dismiss.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

959 So.2d 698

GERD MAY SHOW FALSELY INFLATED BAC

2007-08-25T10:30:00.000-04:00

In People v. Bonutti, ___ Ill.App.3d ___, 788 N.E.2d 331, 273 Ill.Dec. 22 (5th Dist. 2003), expert testimony identified that the defendant had suffered from GERD since 1992 and was being treated for the condition. The expert testified that alcohol, coffee, and carbonated drinks dilate the stomach and the lower esophageal sphincter. The reflux is silent, and regurgitation and reflux are synonymous. In Bonutti, the trial court properly suppressed the breath test when the defendant testified that he refluxed during the 20-minute observation period. However, the trial court properly declined to rescind the statutory summary suspension where the State rebutted the defendantâ€™s claim the breath test was invalid.

In the State of Washington, the Washington State Patrol examined the issue of GERD and concluded safeguards should be implemented for fair and accurate breath testing. Their conclusions for proper breath alcohol testing suggested a sound forensic practice should be followed to ensure the integrity of the breath test and GERD recognition. The safeguards should include the following: at least a 15-minute pre-sample observation period, duplicate testing, instrument detection of mouth alcohol, trained and alert operators that ask appropriate questions, and visual observations looking for symptoms of GERD. Rod G. Gullberg, Breath Alcohol Analysis in One Subject with Gastroesophageal Reflux Disease. 46 J. Forensic Sci. 1498 (2001).

The problem in most breath testing programs is lack of training on GERD, absence of duplicate testing, and that pre-evidentiary test questions do not include information about GERD. In one Midwest state police program, a breath testing instructor testified that he purposely avoids the GERD issue in his breath test training program. The use of a continuous 20-minute observation period is supported again. An officer should be prohibited from driving a car, reading paperwork, turning his or her back on the defendant, and leaving the room during the 20-minute deprivation period. Anything other than continuous 20-minute observation should be prohibited to help ensure the integrity of the breath test. General compliance for a person who suffers from GERD is not acceptable.

Dr. Ronald Henson, Ph.D., C.P.C.T.

GERD Impact on Breath Test

2007-06-21T07:45:00.000-04:00

Gastroesophageal reflux disease (GERD) is a common disease that affects approximately 25 to 30 percent of the U.S. population. GERD is a chronic condition that results from esophagus deterioration from stomach acid eruptions over time. Mark Scott and Aimee R. Gelhot, Gastroesophageal Reflux Disease: Diagnosis and Management, 59 Am.Fam. Physician 1161 (1999) (available online at www.aafp.org/afp/990301ap/1161.html). The impact on breath testing is whether alcohol erupting from the stomach into the mouth from gastric reflux (generally a silent response) poses a problem with accurate breath testing during a 20-minute deprivation period. Research has been minimal to nonexistent on this issue. Research conducted to try to mimic gastric reflux is problematic because of a very small non-representative population (ten people or less) sample, and some researchers used a compression belt to invoke eruption, in contrast to spontaneous and natural eruption.
In People v. Bonutti, ___ Ill.App.3d ___, 788 N.E.2d 331, 273 Ill.Dec. 22 (5th Dist. 2003), expert testimony identified that the defendant had suffered from GERD since 1992 and was being treated for the condition. The expert testified that alcohol, coffee, and carbonated drinks dilate the stomach and the lower esophageal sphincter. The reflux is silent, and regurgitation and reflux are synonymous. In Bonutti, the trial court properly suppressed the breath test when the defendant testified that he refluxed during the 20-minute observation period. However, the trial court properly declined to rescind the statutory summary suspension where the State rebutted the defendant’s claim the breath test was invalid.
In the State of Washington, the Washington State Patrol examined the issue of GERD and concluded safeguards should be implemented for fair and accurate breath testing. Their conclusions for proper breath alcohol testing suggested a sound forensic practice should be followed to ensure the integrity of the breath test and GERD recognition. The safeguards should include the following: at least a 15-minute pre-sample observation period, duplicate testing, instrument detection of mouth alcohol, trained and alert operators that ask appropriate questions, and visual observations looking for symptoms of GERD. Rod G. Gullberg, Breath Alcohol Analysis in One Subject with Gastroesophageal Reflux Disease. 46 J. Forensic Sci. 1498 (2001).
The problem in most breath testing programs is lack of training on GERD, absence of duplicate testing, and that pre-evidentiary test questions do not include information about GERD. In one Midwest state police program, a breath testing instructor testified that he purposely avoids the GERD issue in his breath test training program. The use of a continuous 20-minute observation period is supported again. An officer should be prohibited from driving a car, reading paperwork, turning his or her back on the defendant, and leaving the room during the 20-minute deprivation period. Anything other than continuous 20-minute observation should be prohibited to help ensure the integrity of the breath test. General compliance for a person who suffers from GERD is not acceptable.
Dr. Ronald Henson, Ph.D., C.P.C.T.

Rogue DUI Cop Wrongly Jailed Dozens

2007-06-21T07:42:00.000-04:00

TAMPA - Daniel Brock won high praise for jailing impaired motorists. Mothers Against Drunk Driving honored him. So did his bosses. But one of Hillsborough County’s most aggressive DUI deputies may have wrongly sent dozens of people to jail, the Sheriff’s Office acknowledged on Thursday, June 14, 2007.
The agency fired Brock on May 24th. In one year, Brock arrested 58 people whose blood-alcohol content was below 0.08, the level at which state law presumes a driver is impaired, an internal affairs audit showed. “I don’t prescribe to the theory that somehow you have to be 0.08 to be drunk or impaired, ” Brock, 38, told investigators. (Editor’s Note: I bet he “prescribes” to the theory that somehow everyone is impaired or too drunk to drive at .08)
A driver may be charged with DUI in Florida if the blood-alcohol level is between 0.05 and 0.08 percent, but there must be other evidence of impairment, such as a swerving vehicle. In 43 of those 58 cases, motorists demonstrated no visible impairment behind the wheel, according to an internal affairs report made public Thursday. In 41 arrests, Brock also failed to make a case with urine samples, the report states.
Repeatedly, investigators found Brock reported failures in field sobriety tests when his patrol car video camera documented the opposite. He wrote, for instance, that a driver on Oct. 25, 2005, lost balance while turning. The video of the encounter showed that wasn’t the case. The driver blew a 0.01 in the breath test but was arrested anyway. He said drivers incorrectly recited the alphabet, used arms for balance and slurred speech - when the video showed correct alphabets, perfect balance and clear speech.
Records show he pulled people over on DUI stops 17 times while his cruiser was occupied with other prisoners. That’s against procedure. He routinely filed arrest reports days, even weeks, after making an arrest. He told internal affairs Detective Bruce Crumpler that he always reported the results of field sobriety tests based on memory. Wouldn’t that leave room for errors, Crumpler asked? “Well, there’s room for error, ” Brock told Crumpler. “I’ve never had a problem.” (Editor’s Note: Until now his job was not on the line, his liberty was not restrained, and his license was not jeopardized. No wonder he had never had a problem.)
His paperwork became the subject of scorn at the Hillsborough State Attorney’s Office, where prosecutors said the deputy tarnished his reputation by filing inaccurate arrest reports that lacked important details. “He doesn’t have a very good reputation for being a very good DUI officer that we care to work with, ” prosecutor Jennifer Gabbard told Crumpler. “It’s almost like whatever you can do to make it look like you’re arresting people.”
From October 2005 to October 2006, Brock made 313 arrests for driving under the influence. He failed to activate his cruiser’s audio and video equipment in 40 percent of his stops, instead relying on his “wrought memory” to recall important arrest details, the audit showed. Within the Sheriff’s Office, Deputy Brock previously had been praised for his “outstanding professional service” and was consistently recommended for raises. His superiors rated his performance “satisfactory” and called him a credit to the office. He was lauded as a dedicated deputy who spoke to high school students about the perils of impaired driving.
“We always felt he was a good officer, ” said Becky Gage, 55, the victim advocate for Hillsborough’s MADD chapter. “As long as officers are within the scope of the law, then we support their efforts to remove impaired drivers.” (Editor’s Note: MADD’s leadership embraces a “zero tolerance” standard for everyone, so they believe a person who drank one beer at a ball game should be arrested.)
However, the former deputy encountered a few bumps in the road. He was suspended and sent to driving school in 2000 after a string of what the Sheriff’s Office deemed avoidable traffic accidents. In 2006, he was named in a federal lawsuit alleging that he physically attacked the mother of a teenage boy he arrested in 2002. The Hillsborough County woman said Brock forced himself into her home, pushed her into a corner and sprayed her with pepper spray. The lawsuit is unresolved.
During the recent internal affairs investigation, Brock denied trying to boost numbers for personal recognition. It was unclear Thursday whether Brock intends to appeal his firing. He told investigators that given the chance, he would conduct his DUI stops the same way. Said Brock: “I mean, perfect world, we need more deputies and fewer people.”

Are FST's an Accurate Method to Base Arrest Decision?

2007-04-21T18:21:00.000-04:00

Separating Myth from Fact: A Review of Research on the Field Sobriety Tests

Spurgeon Cole
&
Ronald H. Nowaczyk
Clemson University
Clemson, SC 29634

For over a decade Marcelline Burns, senior author of an often-cited 1977 NHTSA (National Highway Traffic Safety Administration) report and co-author of a 1981 NHTSA study, has traveled across the country extolling the virtues of the new and improved Field Sobriety test (FST) battery. The FST battery, as recommended by NHTSA, consists of three tests that are supposed to predict an individual’s blood alcohol (BAG) level. The tests are the Horizontal Gaze Nystagmus (HGN) test, the Walk-and-turn test and the One-leg stand test. None of these tests were specifically developed to identify BAG level, but have been used by law enforcement as indicators of driving impairment.
NHTSA claims that the new version of the FST battery is scientific and can differentiate between impaired and unimpaired drivers. Until recently Burns’ testimony has gone unchallenged because few attorneys have the prerequisite understanding of statistics and test development to critically evaluate the NHTSA reports and effectively cross-examine NHTSA’s witnesses. Judges who have recently heard the “rFST of the story” are either not admitting the FST entirely or declaring it unscientific and not allowing police to use such terms as “tests” “results” “passed” or “failure.”2
The prosecution in DUI trials has long held a decided advantage over the defense because of misconceptions about the effectiveness of the FST. Even defense attorneys have often accepted the premise that the FST has a measure of value in predicting driving impairment. In essence, NHTSA representatives have for over a decade enjoyed a free ride, but the road has recently developed some serious pot holes.

Research (Cole & Cole, 1991; Cole & Nowaczyk, 1994) and expert testimony offered by Cole & Nowaczyk have enabled judges and attorneys to better understand the limitations of the FST. In the past, NHTSA representatives have made outlandish claims as to the effectiveness of the FST even though these claims are not supported by their own research data. Because of these sins of omission and an occasional sin of commission, many myths have developed concerning the validity and reliability of the FST battery. The present article attempts to separate the facts from the myths.

Myth 1: The Field Sobriety TFST (FST) battery predicts driving impairment.

Fact: NHTSA never attempted to determine if the FST could predict driving Impairment. There is not a single study linking the recommended FST battery directly to driving impairment. The fact is, there never wilt be a simple roadside coordination task that can predict driving impairment. In one of NHTSA’s own reports, the following statement is made “… even valid, behavioral tests are likely to be poor predictors either of actual behind-the-wheel driving …or of accidents” (p. 2-7, Snapper, Seaver & Schwartz, 1981.) The stated goal in the 1977 study was to determine the relationship between FST and intoxication and driving impairment. However, they did not investigate the relationship between the FST and driving impairment.
While there is a relationship between BAC level and driving impairment, the relationship is not likely to be a simple linear one. Therefore, it is not appropriate to assume that 1) if FST performance and BAC are related and 2) if BAC and driving Impairment are related, therefore, 3) FST and driving impairment are related. The relationships among these factors are too complex to assume a simple relationship as NHTSA might like you to conclude. There are comments among NHTSA researchers themselves alluding to this conclusion. In the 1981 NHTSA study, the researchers conclude,”…Individuals vary in alcohol tolerance, and infrequent drinker may be severely impaired at a BAC of 0.05, whereas a heavy drinker may show only minimal Impairment at this level” (p. 19). Dr. Moskowitz, one of the co-authors of both the 1977 and 1981 NHTSA studies, co-authored a later review of research on driving and alcohol, levels and concluded in a presentation at a scientific conference that,”... studies of driving simulator and on-the-road testing varied widely in results. This is due to the wide range of behavioral demands required by diverse control and visual search requirements” (Moskowitz & Robinson, 1987, p. 85). It is obvious that research is needed examining the relationship between FST and driving performance directly. That research has not yet been conducted. Dr. Burns herself indicated that the FST battery has its value in predicting BAG levels (Burns, 1984).

Myth 2: The FST battery is 80 percent accurate in differentiating between Individuals with BAC levels above or below .10.

Fact: The 1981 NHTSA study is the one cited by NHTSA as evidence of an 80 percent accuracy rate with the use of the FST battery. That study tested 296 subjects. Thirty-three percent of the subjects in the study had a BAC level of .00 and 34 percent were given dose levels calculated to raise BAG levels to .05. Another 11 percent of the subjects had BAG levels approximating .15, with some having BACs as high as .18. An officer should have no difficulty correctly identifying totally alcohol-free subjects as being unimpaired. Although slightly more difficult, one would expect officers to correctly classify subjects with BAC levels of .05 as being unimpaired. They should also have little difficulty correctly classifying subjects with the BAG levels of .15. In effect, 78 percent of the subjects fall into these extreme categories. Only 22 percent of the subjects were in the critical BAC range around .10. When the tests must differentiate in this critical range, they fail miserably. The overall accuracy rate of .80 is. misleading when over two-thirds of the decisions are “gimmies,” people with little or no alcohol or levels of .15.

For the remaining subjects, the officers have a 50/50 chance of being correct just on the basis of guessing. With the “easy” decisions and a guessing rate of .50, the reported 80 percent accuracy rate does not look exceptionally good. The question should not be how does the FST help officers correctly classify subjects 80 percent of the time. Instead, the question asked should be “Why doesn’t the FST do a better job helping the officers reach the correct decision?” In fact, the 1977 NHTSA report contains the following admonition, “Again, it should be pointed out that all the evidence from these data suggest it is unrealistic to attempt to use behavioral tests to discriminate BACS in a .02 margin around a given level” (P.41).

Myth 3: The FSTs are tests accepted by the scientific community.

Fact: Anastasi (1988) defines a test as being an objective and standardized measure of behavior, in the behavioral sciences, specific criteria must be met for a behavioral test to be accepted. The primary criteria include establishing the reliability, validity, and standardized administration of the test. Reliability and validity involve the consistency of test scores and the relationship of the score to the behavior it is designed to measure. Standardization includes uniformity of procedure in administering the test as well as the scoring of the test. For test scores to be meaningful the test conditions under which the tests are administered must not be causing differences in test scores. A test that has not been standardized or does not outline exact procedures for administration and scoring would not be considered a scientific test.

An important step in the standardization of a test is the development of norms and as the name suggests, a norm is the normal, average or typical score. Scores can only be interpreted by comparing them with scores obtained by others. There are no adequate norms for the FST battery. Common sense dictates and research supports the belief that motor skills decline with age. The FST, however, provides no basis for interpreting the results for individuals at various age levels. Although, manuals for DWl training suggest that tests should not be given to individuals who are 60 years of age or older or to a person more than 50 pounds overweight, it provides no information on how to evaluate the performance of a 45 year old versus a 20 year old (NHTSA, 1992).

Examiners cannot adequately interpret a score, unless they know the mean and the standard deviation of the distribution. NHTSA leads us to believe that the “norm” for a sober person would be a test score of 0; that is, no errors in performance. Yet, we know from the 1977 NHTSA study that all of the sober people in that study made at least one error. In fact, the mean number of error “cues” scored among the sober individuals was 10.56.3
Even if NHTSA’s claim that the FST is not a norm-referenced test, but rather a criterion-referenced test (that is, that a certain score (criterion point) indicates failure), there are no data indicating how this criterion score might vary as a function of age, gender, or motor coordination. Even, if such norms were produced from the NHTSA 1977 and 1981 studies, they would be of limited value given that they are based on laboratory testing, not testing in the field.

Myth 4: The field sobriety tests are reliable.

Fact: Reliability refers to the consistency n test scores. Reliability scores can range from a low of .00, which indicates no consistency, to 1 .00, which indicates perfect consistency. A test with a reliability value of .90 would indicate that 90 percent of the variability in the test scores is attributed to true differences in performance and 10 percent would be due to error. Most well-established tests (e.g., Wechsler scales for lQ, SAT, GRE) have reliability values greater than .90. The scientific community expects reliability coefficients to be in the upper .80s or .90s for a test to be scientifically reliable (Anastasi, 1958; Rosenthal & Rosnow, 1990).

The HGN, One-leg stand, and Walk-and-turn tests have test-retest reliabilities of .66, .72, and .61 respectively with a combined reliability of 77. This means that 34 percent of the HGN, 28 percent of the One-leg stand and 39 percent of the Walk-and-turn test scores can be attributed to errors in scoring. If 23 percent of the score on a breathalyzer depended on the manufacturer of the device, would it be allowed into evidence? Quite possibly the most telling lack of reliability of the FST battery is that when different officers tested the same subjects at the same dose level on different days, the reliability was only .59. This means that 41 percent of the score was due to error. These reliabilities are far too low to be useful in making important decisions. By contrast the reliability of the BAC machine readings was .96, indicating a high level of reliability.

Myth 5: The field sobriety tests are scientifically valid.

Fact: The 1977 NHTSA study reported the results in terms of validity coefficients. The validity coefficient for HGN, One-leg stand and Walk-and-turn tests was .67, .48, and .55 respectively with a combined validity coefficient of 67. For example, if the officer used the individual FSTs, the accuracy in predicting the BAC levels would increase by only 26 percent with the HGN test, 12 percent with the one-leg stand test and 16 percent with the walk-and-turn test. If all three tests were administered, accuracy in predicting BAC levels would improve by only 26 percent. The error in predicting BAG levels using the HGN, the one leg stand, and the walk-and-turn combined would be 74 percent as large as it would be by chance.

For the FST battery to be a valid predictor of BAC, it must not only identify individuals above a BAC level of .10 as “failing, “ but also identify individuals below .10 as “passing.” That is, the test must have discriminative power. In NHTSA’s own studies, a significant proportion of people who were below the .10 BAG standard in effect at that time were falsely viewed as being impaired. In the 1977 Burns and Moskowitz study, 46.5 percent of the “arrest” decisions by participating officers were incorrect. Of the 101 arrest decisions, 47 subjects had BAG levels less than .10. The authors, themselves conclude, “Obviously, an error rate of 46.5 percent in making arrests is not acceptable” (p.25).

In the follow-up study by Tharp et. Al. (1981), the false arrest rate was 32 percent. The primary reason for the decrease in false alarm from 46.5 percent in the ‘77 NHTSA study to 32 percent in the 1981 study was not due solely to the “new improved FST,” but partly to the distribution of subjects across the dose levels. In the ‘77 NHTSA study 27 percent of subjects were in the critical range (BAC in the middle range) and in the ‘81 NHTSA study only 22 percent of subjects were in the middle range. In other words the distribution in the ‘81 NHTSA study made discriminations easier. If the ‘81 NHTSA study had used the same distribution of BAC levels that were employed in the ‘77 NHTSA study, the false arrest rate would have been higher than 32 percent and probably would have matched the “unacceptable” 46.5 level of the ’77 NHTSA study. These validity scores are quite low and suggest that the FST battery is of little benefit for an officer determining BAC levels.

Myth 6: NHTSA has validated the FST in a field setting.

Fact: The 1977 and 1981 NHTSA studies were conducted in a laboratory setting. It is obvious that laboratory studies are very different from studies performed in a natural or field setting. Laboratories are quite different from real life situations. For example, the influence of alcohol on the individual depends greatly on the social context, as well as the expectations of the person. Subjects in these NHTSA studies were told not to eat eight hours prior to the testing. Test subjects were tested at 15-minute intervals, and the study began early in the morning. This would mean that many subjects had not eaten for long as 12 hours before being tested. It is doubtful that a person drinking in a natural setting would fast for hours and then consume alcohol at unknown ethanol levels.
Laboratories are artificial by nature and only gives an indication of what one might expect in a field setting. In the conclusions of the 1981 NHTSA study, the authors recommended that the field sobriety test should be validated in the field for 18 months and in various localities across the nation. The 1983 NHTSA study by Anderson, et al., the purported “field validation” of the FST battery, did not meet those recommendations, A 3-month study was conducted in a limited number of locations on the east coast. Dr. Bums has testified on cross examination4 that the FST has never been adequately field tested. Most importantly the FST has never been standardized or validated in a field getting.

Myth 7: The NHTSA studies have been published in Peer Reviewed Journals.

Fact: Neither of the 1977 or 1981 NHTSA studies has been published in a scientific peer-reviewed journal. The publications have been limited to technical reports issued by NHTSA. Dr. Burns has admitted on cross examination3 that the method and results sections were too lengthy to be published in a scientific journal. Based on this logic lengthy but important studies would never be published. It is difficult to see how the NHTSA could claim that the FST Is accepted in the scientific community, when results of studies on the validation of the FST have never appeared in a scientific peer reviewed journal, which is’ a basic requirement for acceptance by the scientific community.

Myth 8: There is a consistent relationship between BAC levels and driving impairment.

Fact: The literature on the effects of alcohol is so diverse that one can only conclude that any demanding task may be impaired at almost any BAC level. Research indicates that there are substantial individual variations in the metabolism of alcohol which would, most likely affect performance. Performance is also affected by individual differences and individuals with identical BAC levels, may very well have different levels of impairment (Hurst and Bagley, 1972; Moskowitz, Daily and Henderson, 1974). Many studies involving the influence of alcohol on impairment find a rather significant number of subjects whose performance actually increases after the consumption of alcohol. In a study conducted under the auspices of the California Highway Patrol and various law enforcement agencies, Giguire (1985) found that 17 percent of his subjects with doses calculated to achieve BAG levels of .10 improved driving performance on a closed course. Mangarin & Standery (1989) also found no effects of alcohol dose on a video driving performance despite an unusually high dose calculated to achieve a BAG of .16. These studies and others suggest a complex relationship between BAC levels and performance and offers little support for setting specific BAC impairment levels and certainly does not support the assumption that BAG levels could be used as a substitute criteria for driving impairment.

Myth 9: People who are not impaired can “pass” the Field Sobriety Tests.

Fact: Cole and Nowaczyk (1991) had 21 adults perform field sobriety tests who were completely alcohol free, as confirmed by breath tests. The subjects were given six tests including a heel to toe test and a one leg stand test. None of the subjects was under the extreme pressure that is associated with a roadside detention situation. Two separate groups of law enforcement officers gathered at different times to judge the performance of the participants. These were actual police officers who had received standard training in the observation and Identification of intoxicated drivers. The officers were then asked to identify individuals who had too much to drink to drive. Of 147 responses by the police officers, 68 of those responses (46 percent) indicated that a completely sober person was too intoxicated to drive, The average police experience was 12 years. Interestingly, the officer with the least experience had the fewest wrong responses.

Compton (1985) found false positive rates for totally alcohol free participants to be as high as 54 percent for some police departments. In the 1981 NHTSA study 18 percent of alcohol-free subjects and 31 percent of subjects with BAC levels of .05 were judged to be impaired. Clearly, there is a strong tendency for certified alcohol-free participants to fail Field Sobriety Tests.

Myth 10: The Horizontal Gaze Nystagmus (HGN) Test is the most sensitive test for measuring Impairment.

Fact: Because the HGN test is a physiological task unlike the other Field Sobriety Tests which are psychomotor, divided-attention tasks, it is sometimes viewed as being the most sensitive of the three tests. Also, some of NHTSA’S research indicates it has the strongest relationship with BAC (e.g., Burns & Moskowitz, 1977 (p. 17]; Anderson, et at., 1983 (Table 2]). Yet, some of NHTSA’s own data raise question marks about its ability to discriminate among individuals with different BAG levels.

In a report commissioned by NHTSA, Snapper, Seaver and Schwartz (1981) reviewed the Burns & Moskowitz study and conclude, “Nystagmus, on the other hand was not a highly-rated test. ... First, Burns and Moskowitz evaluated tests with respect to the relationship between performance on the test and blood alcohol concentration (BAC). A close relationship between these two variables does not necessarily imply a close relationship between performance on the nystagmus test and driving performance, or between test performance and accidents. Specifically, it is not apparent that performance on the nystagmus test reflects, any skills related to driving. In addition, examining a driver for nystagmus may be difficult operationally and somewhat unsafe. Scoring is quite subjective and would require careful training for the test administrator” (p. 4-4).

The difficulty in scoring is illustrated in the Tharp, et al. study where we find a weak relationship between an officers ability to judge the angle of nystagmus onset and the actual angle as measured by a machine. Officers are instructed that onset of nystagmus before 45 degrees of eye movement to the outside is an indication of a BAC above .10. Yet, we find that of the 10 officers who participated in the Tharp et al. study, 5 had correlation coefficients less than .44, with 2 in the .23 to .26 range. This indicates little relationship between what the officers judged .the angle of onset to be and what the machine actually recorded as the angle of onset,

The 45 degree angle of onset itself is troubling. Based on NHTSA’s own research, a 45 degree angle corresponds to a BAC of approximately .05 or .06, not .10 (Tharp, et al., 1981). A more appropriate angle, based on their findings, is 41 or 40 degrees not 45 degrees. A BAC level of .08 would correspond to an angle of onset of approximately 43 degrees. The task for the officer to detect such small changes is quite daunting, if not impossible.

Follow-up research on impairment and performance with the HON has shown it can lead officers to falsely conclude a person has a BAG above .10 when it is not. Compton, in a NHTSA study (1985), reported the findings of a study where individuals were stopped at simulated sobriety checkpoints. The subjects, dosed to different BAC levels, were encouraged to act as though they were not impaired. The officers gave “failing” scores (4 points or higher) to 15 percent of the sober individuals and 64 percent of those with BAC levels between .05 and .09 (the average BAC level in this condition was .07).

Giguire (1985) had 24 Navy personnel drive on a closed course under sober and intoxicated conditions. In addition to evaluating their driving performance, Giguire had officers administer the Field Sobriety Tests. Of the 13 subjects with BACs below .10 (between .064 and .099), 12 showed evidence of impairment based on the HGN. The HGON is not as accurate a test for determining BAG as NHTSA would like you to believe.

Conclusion

Because of its widespread use, the FST battery has been assumed to be a reliable and valid predictor of driving impairment. NHTSA has done little to dispel that assumption. Law enforcement cannot be blamed for its use of the FST battery. Training documents refer to NHTSA reports and provide what appears to be supporting evidence for the validity of the FST battery. In addition, there is little doubt that individuals who have high BAC levels will have difficulty performing the FST battery. However, what the law enforcement community and courts fail to realize is that the FST battery may mislead the officer on the road to incorrectly judge individuals who are not impaired. The FST battery to be valid must discriminate accurately between the impaired and non-impaired driver, NHTSA’s own research on that issue (Anderson, et. al., 1983; Bums & Moskowitz, 1977; Tharp, et al. 1981) has not been subjected to peer review by the scientific community. In addition, a careful reading of the reports themselves provides support for the inadequacy of the FST battery. The reports include low reliability estimates for the tests, false arrest rates between 32 and 46.5 percent, and a field test of the FST battery that was flawed. Because officers in many cases had breathalyzer results at the time of the arrest. NHTSA clearly ignored the printed recommendations of its own researchers in conducting that field study.

What is needed is a careful examination of the complex relationships among motor coordination tasks, BAG level and driving impairment. Tests should be developed based on our understanding of these relationships. The current method of selecting the “best of what is out there” is not serving the public well.

References

Anderson, I.E., Schweitz,R. M. & Snyder, M. 8. (1983). Field evaluation of a behavioral battery for DWI. Final Report, DOT-HS-806-676, 1983.

Anastasi, A. (1988). Psychological Testing, Sixth edition. NY: Macmillan Press.

Burns, M. & Moskowitz, H. (1977). Psychophysical tests for DWI arrest. Final Report, DOT-HS-802-424, NHTSA, 1977.

CoIdwelI, B. B., Penner, D. W., Smith, H. W., Lucas, 0. H. W., Rodgers, R. F. & Darroch F. (1958). Effect of ingestion of distilled spirits on automobile driving skill. Quartery Journal of Studies on Alcohol, 19, 590-616.

Cole, R. M. & Cole, S. N. (1991). New proof that field sobriety tests are “failure designed.” OWl Journal, 6(2), 1-5.

Cole, S. & Nowaczyk, S. H. (1994). Field sobriety tests: are they designed for failure? Perceptual and Motor Skills, 79, 99-104.

Compton, R. P. (1955). Pilot test of selected DWI detection procedures for use at sobriety checkpoints. Final Report, DOT- H S_806-724.

Giguire, W. (1985). Impairment caused by moderate blood alcohol levels in a closed course: preliminary demonstration. In S. Kaye & G. Meier (Eds.), Alcohol, Drugs and Traffic Safety. Proceedings 9th International Conference.

Hurst, P.M. and BagIey, S.K. Acute adaptation to the effects of alcohol. Quart. J. Stud. Alc., 33, 358-378, 1972.

Moskowitz, H., Daily, J. And Henderson, A. Acute tolerance to behavioral impairment by alcohol in moderate and heavy drinkers. DOT-NHTSA,TM (L) - 4970/013/00, 64 pp., 1974.

Moskowitz, H. & Robinson, C. (1987). Driving-related skills impairment at low blood alcohol levels. In P. C. Noordzij & A. Roczbach (Eds.), Alcohol, drugs and traffic safety. Elsevier Science Publishers. pp. 79-86.

Moskowitz, H. & Robinson, C. (1988). Effects of low doses of alcohol on driving-related skills: a review of the evidence. Final Report, DOT-HS-807-280.

NHTSA, National Highway Traffic Safety Administration (1992). DWl Detection and Standardized Field Sobriety Testing. DOT- PB94-780 228.

Rosenthal, A. & Rosnow, R. L. (1991). Essentials of Behavioral Research. (2nd ed.) New York: McGraw-Hill.

Snapper, K. J., Seaver, D. A., & Schwartz, J. P. (1981). An assessment of behavioral tests to detect impaired drivers. Final Report, DOT-HS-806-211.

Tharp, V., Burns, M. & Moskowitz, H. (1981). Development and field test of psychophysical tests for DWI arrests. Final Report, DOT-HS-805-864.

Alcohol Cravings Induced via Increased Serotonin

2007-03-24T09:51:00.000-04:00

Alcohol Cravings Induced via Increased Serotonin
by Ann Blake Tracy, Director, ICFDA

There is an alarming connection between alcoholism and the various prescription drugs that increase serotonin. The most popular of those drugs are: PROZAC, ZOLOFT, PAXIL, LUVOX, SERZONE, EFFEXOR, ANAFRANIL, and the new diet pills, FEN-PHEN and REDUX. For seven years numerous reports have been made by reformed alcoholics (some for 15 years and longer) who are being "driven" to alcohol again after being prescribed one of these drugs. And many other patients who had no previous history of alcoholism have continued to report an "overwhelming compulsion" to drink while using these drugs.
(A few personal accounts: #1 A young woman, a recovering alcoholic, reported that during the eight month period she had been using Prozac she found it necessary to attend AA meetings every day in order to fight off the strong compulsions to begin drinking again. #2 In the Southeastern United States a middle aged psychologist, also a recovering alcoholic, after being prescribed Prozac, found herself needing to attend AA meetings morning, noon, and night to keep from destroying the sobriety she had achieved. #3 A young father, who was Mormon and had never before in his life used alcohol, found himself drinking Ever Clear and exhibiting bizarre as well as violent behavior, after being prescribed Prozac and Ritalin. #4 A young mother who had never used alcohol before began drinking large amounts within weeks of being prescribed Prozac and quickly found herself committed to a mental institution due to the psychotic behavior that resulted. Added to her Prozac prescription were anti-psychotic meds and electric shock treatments. She then began to experience seizures and was started on anti-seizure meds. #5 A concerned neighbor reported her friend was drinking straight Vodka on a regular basis after being prescribed Zoloft. #6 A daughter reported her father, sober for 15 years, began drinking again on Prozac. The consistant report from these patients has been an "overwhelming craving or compulsion" for alcohol.)
For some time we did not have specific medical documentation to help us understand why this was happening. Could it be that Prozac, Zoloft, Paxil, etc., being mood altering substances, were removing the inhibitions that individuals had placed upon themselves to stop their additions? But beyond this mood altering effect of Prozac, etc., there seemed to be a physiological cause for this alcoholic obsession as well. There were reports of people who rarely drank before Prozac, etc., consuming excessive amounts of alcohol after starting usage of these various drugs. For example we have the case of a young newly wed in Southern Utah who was given Prozac for a hormonal imbalance. Before that time she would have two or three social drinks a year, yet soon after being prescribed Prozac she began bringing alcohol home by the case. Many similar reports followed.
Could it be that because these drugs have such a strong adverse effect upon the pancreas [Manufacturer's warnings include such side effects as hypoglycemia, diabetes and pancreatitis.] they are producing a potent disruption in the body's blood sugar balance? This would in turn cause a "craving" for alcohol as the body reaches out for a "quick fix" to raise the blood sugar level thus triggering a vicious self-perpetuating cycle as the alcohol pushes the blood sugar level even lower after the brief high it produces. This means that those suffering a tendency toward alcoholism or any other blood sugar disorder would suffer the most disastrous repercussions of Prozac, etc., (including psychosis, suicidal ideation and violence) much faster than most. Patient reports support this conclusion.
In November of 1994 Yale published a study that gave us one answer to the alcohol cravings associated with these drugs. The study demonstrated that an increase in brain levels of either of two neurotransmitters (brain hormones), serotonin or noradrenalin, produces: #1 a craving for alcohol, #2 anger, #3 anxiety. They found this to be especially true for those who have a history of alcoholism. All of the drugs listed above are designed in one way or another to increase serotonin which in turn also increases noradrenalin. Anyone who has a history of alcoholism should heed the warning contained in these reports. And anyone who has developed a problem with alcoholism while using these drugs deserves answers as to why they have experienced such an overwhelming compulsion to drink.
America already has an estimated 10 -15 million alcoholics. To increase that number with a reaction from prescription drugs which causes a compulsion to drink is a tragedy! What a sad state of affairs that drugs which are actually being promoted as a treatment for alcoholism have the potential to create alcohol craving behavior. This is not only frightening, but absurd. It is heart-rending to listen to those who have had years of sobriety destroyed almost overnight or those who have never touched alcohol before Prozac, yet began drinking compulsively due to a medication prescribed by doctors unfamiliar with this connection. By chemically inducing an overwhelming urge to drink this effect also causes patients to mix alcohol with these powerful drugs. When alcohol and drugs are combined, one can compound the effects of the other so the resulting impairment is far worse than if the two were taken separately...even small amounts, mixed with some medicines, will deaden your senses or change your perceptions which can lead to psychotic behavior, seizures, etc. Those in this situation need to be made aware that they are not alone, and that this is a common report which is now substantiated by medical documentation. They also need to understand that it is possible to very gradually withdraw from these drugs and overcome these adverse drug reactions.
For an in depth exploration of this subject see the book PROZAC: PANACEA OR PANDORA? by Ann Blake Tracy. For order information call 1-800-280-0730 or visit the website.
Other references for this material: Krystal JH, Webb; E, Cooney N.; et al., "Specificity of Ethanol-like Effects Elicited in Serotonergic and Noradrenergic Mechanisms," ARCHIVES OF GENERAL PSYCHIATRY, Vol. 51, Issue 11, pgs 898-911. (This is the Yale study mentioned above.); In a study conducted by Liisa Ahtee and Kalervo Eriksson (Physiology and Behavior, Vol. 8, pp. 123-126, 1972) rats which preferred alcohol had 15-20% higher concentrations of serotonin in the brain.

DUI FIELD TESTS AND DIABETICS

2007-03-24T08:53:00.000-04:00

Diabetics commonly experience hypoglycemia (low blood sugar levels). And what are the symptoms? Slow and slurred speech, poor balance, impaired motor control, staggering, drowsiness, flushed face, disorientation -- in other words, the classic symptoms of alcohol intoxication. This individual will look and act like a drunk driver to the officer, and will certainly fail any DUI "field sobriety tests". As one expert has observed, "Hypoglycemia (abnormally low levels of blood glucose) is frequently seen in connection with driving error on this nation’s roads and highways...Even more frequent are unjustified DUIs or DWIs, stemming from hypoglycemic symptoms that can closely mimic those of a drunk driver." From "Hypoglycemia: Driving Under the Influence" in 8(1) Medical and Toxicological Information Review Sept. 2003.
Canadian scientists have reported that "approximately 200 compounds have been detected in the human breath." Manolis, The Diagnostic Potential of Breath Analysis, 29(1) Clinical Chemistry 5 (1983).
This study confirmed the presence of acetone on the breath in diabetics and in persons on a diet " associated with a weight reduction of about one-half pound per week." Id. at 9. Another study has confirmed that diabetics may give false indications of intoxication. In Brick, Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study, 9(1) Alcohol, Drugs and Driving (1993), a researcher found that expired ketones in the breath of an untreated diabetic can contribute to erroneously high breath-alcohol readings. Further, the acetone on the breath from ketoacidosis will result in an odor of alcohol. Finally, behavioral patterns of a diabetic whose blood-sugar level has dropped will include slurred speech, slow gait, impaired motor control, fumbling hand movements, and mental confusion--all symptomatic of intoxication.
Acetone may also be found on the breath of perfectly normal, healthy individuals. Yet, acetone is one of the compounds that will be detected on many breath analyzing instruments as ethanol. In the Intoxilyzer, for example, it is detected because acetone absorbs infrared energy in the 3.38 to 3.40 micron range--the same range where ethanol is found. Therefore, if acetone were introduced into the Intoxilyzer, the machine would simply register the presence of alcohol despite its absence. If an individual had 525 micrograms per liter of acetone in the breath, he would register a blood-alcohol level of .02 to .03 percent. Thus, if an individual with a true blood-alcohol level of .08 percent had that amount of acetone, the Intoxilyzer would register in the area of .l0 to .11 percent.
The National Highway Traffic Safety Administration has published a report entitled The Likelihood of Acetone Interference in Breath Alcohol Measurement (DOT HS--806-922). The report basically summarizes scientific literature on the subject, concluding that normal individuals have insignificant levels of acetone on their breath. The data indicated, however, that dieters can have higher levels and that diabetics not in control of their blood-sugar had levels hundreds or even thousands of times higher than normal
a study confirming the effects of acetone in diabetics can be found in Mormann, Olsen, Sakshaug, and Morland, Measurement of Ethanol by Alkomat Breath Analyzer; Chemical Specificity and the Influence of Lung Function, Breath Technique and Environmental Temperature, 25 Blutalkohol 153 (1988). Diabetic subjects in that study also were found to have acetone levels sufficient to produce breath-alcohol readings of .06 percent.

Breath testing machines, such as the Intoxilyzer 5000, suffer from a little-known design defect: they do not actually measure alcohol! Rather, they use infrared beams of light which are absorbed by any chemical compound (including ethyl alcohol) in the breath which contains the "methyl group" in its molecular structure; the more absorption, the higher the blood-alcohol reading. The machine is programmed to assume that the compound is "probably" alcohol. Unfortunately, thousands of compounds containing the methyl group can register as alcohol. One of these is "acetone". And a well-documented by-product of hypoglycemia is a state called "ketoacidosis", which causes the production of acetones in the breath. In other words, the Breathalyzer will read significant levels of alcohol on a diabetic’s breath where there may be little or none. See, for example, Brick, "Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study", 9(1) Alcohol, Drugs and Driving (1993).
Fact: roughly one in seven sober drivers on the road suffers from diabetes.