Ariz. will prosecute pot smokers for DUI even when there is no evidence that they're actually high.
Phoenix, AZ- An appeals court has issued a ruling that upholds the right of authorities to prosecute pot smokers in Arizona for driving under the influence even when there is no evidence that they are actually high.
The ruling by the Court of Appeals focuses on the chemical compounds in marijuana that show up in blood and urine tests after people smoke pot. One chemical compound causes drivers to be impaired; another is a chemical that stays in people's systems for weeks after they've smoked marijuana but doesn't affect impairment.
The court ruled that both compounds apply to Arizona law, meaning a driver doesn't have to actually be impaired to get prosecuted for DUI. As long as there is evidence of marijuana in their system, they can get a DUI, the court said.
The ruling overturns a decision by a lower court judge who said it didn't make sense to prosecute a person with no evidence they're under the influence.
The lower court judge cited the proliferation of states easing their marijuana laws, but the Court of Appeals ruling issued Tuesday dismissed that by saying Arizona's medical marijuana law is irrelevant regarding DUI. More than 35,000 people in Arizona have medical marijuana cards.
The Court of Appeals said the Legislature adopted the decades-old comprehensive DUI law to protect public safety, so a provision on prohibited substances and their resulting chemical compounds should be interpreted broadly to include inactive compounds as well as active ones.
http://www.azfamily.com/home/Ariz-court-ruling-upholds-DUI-test-for-marijuana-191140311.html
Alcohol mixed with diet drinks may increase intoxication:
An individual's breath alcohol concentration (BrAC) following alcohol intake is influenced by several factors, including food. While it is known that food delays the stomach emptying, thus reducing BrAC, only recently has the role of nonalcoholic drink mixers used with alcohol been explored as a factor influencing BrAC. A new comparison of BrACs of alcohol consumed with an artificial sweetener versus alcohol consumed with a sugared beverage has found that mixing alcohol with a diet soft drink can result in a higher BrAC.
Results will be published in the April 2013 issue of Alcoholism: Clinical & Experimental Research and are currently available at Early View.
"More attention needs to be paid to how alcohol is being consumed in the 'real world,'" said Cecile A. Marczinski, assistant professor of psychology at Northern Kentucky University. She referenced an earlier field study of bar patrons. "Researchers found that, one, individuals who reported consuming alcohol with diet beverages had the highest BrACs, as compared to all other bar patrons, and two, that women tended to be more frequent consumers of diet mixers with their alcohol. These good naturalistic observations give researchers many ideas to explore in a controlled laboratory setting."
Dennis L. Thombs, professor and chair of the department of behavioral and community health at UNT Health Science Center, was the author of the field study referenced by Marczinski. "Research on artificially sweetened drink mixers is new," he said. "I believe this might be only the third study published to date on this issue, and the findings are quite consistent with ours."
"I am really interested in drinking and driving as a problem, so I wanted to know if the simple choice of mixer could be the factor that puts a person above or below the legal limit," added Marczinski. "I also wanted to determine if any BrAC difference would be something that subjects would notice, since this has implications for safe drinking practices, including decisions to drive."
Study authors had 16 participants (8 females, 8 males) attend three sessions where they received one of three doses -- 1.97 ml/kg vodka mixed with 3.94 ml/kg Squirt, 1.97 ml/kg vodka mixed with 3.94 ml/kg diet Squirt, and a placebo beverage -- in random order. The participants' BrACs were recorded, as well as their self-reported ratings of subjective intoxication, fatigue, impairment, and willingness to drive. Their objective performance was assessed using a cued go/no-go reaction time task.
"Alcohol consumed with a diet mixer results in higher BrACs as compared to the same amount of alcohol consumed with a sugar-sweetened mixer," said Marczinski. "The subjects were unaware of this difference, as measured by various subjective ratings including feelings of intoxication, impairment, and willingness to drive. Moreover, their behavior was more impaired when subjects consumed the diet mixer."
When asked why mixing alcohol with a diet drink appears to elevate BrACs, Thombs explained that the stomach seems to treat sugar-sweetened beverages like food, which delays the stomach from emptying. "The best way to think about these effects is that sugar-sweetened alcohol mixers slow down the absorption of alcohol into bloodstream," he said. "Artificially sweetened alcohol mixers do not really elevate alcohol intoxication. Rather, the lack of sugar simply allows the rate of alcohol absorption to occur without hindrance."
http://www.sciencedaily.com/releases/2013/02/130205162524.htm
The unknown variable in DUI cases: The cop
The single most important factor in whether an individual will be arrested for driving under the influence (DUI) is not the evidence. It is the individual human differences of the officer himself.
A study by the National Highway Traffic and Safety Administration [U.S. Department of Transportation Report No. H5-801-230] points out the effect of these differences on an officers' observations and conduct in the field: The officer's age and experience play a role in his alcohol-related arrest decisions. Younger officers, and those with relatively few years of seniority, tend to have a more positive attitude toward alcohol-related enforcement and make more arrests on that charge than do older officers. This result was found to hold true regardless of the type of department in which the officer serves or the specific type of duty to which he is assigned.
The officer's personal use of alcohol is inversely related to his level of alcohol-related enforcement. Patrolmen who drink make significantly fewer arrests than those who do not, and those who drink frequently make significantly fewer arrests than those who use alcohol only occasionally.
Lack of knowledge concerning the relationship between alcohol and intoxication is widespread among police officers and imparts a negative influence on alcohol-related enforcement. Most officers underestimate — often by a wide margin — the amount of alcohol a suspect would have to consume in order to achieve the statutory limit of blood-alcohol concentration.
Specialized training has a strong positive influence on alcohol-related arrests. Patrolmen who have received instruction in the operation of breath testing devices and/or in alcohol-related enforcement (particularly in municipal departments) were found to lack this specialized training.
Specialization in duty assignment can also enhance alcohol-related enforcement. Patrolmen assigned to traffic divisions, in particular, produce higher arrest rates than those charged with general patrol duties.
Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests.
Weather conditions also affect alcohol-related arrests. There is encouraging evidence that foul weather has a positive influence on the attitude of many officers; they are more appreciative of the risk posed by an alcohol-related suspect when driving conditions are hazardous, and are less likely to avoid the arrest when those conditions prevail.
The suspect's attitude can have a strong influence on the arrest/no arrest decision. If the suspect proves uncooperative or argumentative, a positive influence for arrest results. Conversely, the likelihood of arrest decreases when the suspect seems cooperative.
The suspect's race is a key distinguishing characteristic in alcohol-related cases. The officers surveyed (the overwhelming majority of whom were white) reported releasing significantly more nonwhite suspects than they arrested. The data do not suggest that this reflects a greater tendency to exercise discretion when dealing with nonwhite drivers. Rather, the officers seem more willing to initiate an investigation when the suspect is not of their own race.
A suspect's age is another distinguishing characteristic of these cases, and patrolmen reported releasing significantly more young suspects than they arrested. This appears to stem from two distinct causes. First, young officers exhibit more sympathy for young suspects, i.e., seem less disposed to arrest a driver of their own age group. Second, older officers seem more willing to stop young suspects, i.e., are more likely to conduct an investigation when the driver is young, even if the evidence of alcohol-related violation is not clear.
The suspect's sex also plays a role in the arrest/no arrest decision. Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming.
Most DUI cases depend largely upon two variables: the officer and the machine. As has been discussed repeatedly in past posts, the machine is an unknown and unreliable variable. As this federal study indicates, so is the officer.
http://www.duiblog.com/2013/01/28/the-unknown-variable-in-dui-cases-the-cop/
DOT DUI study reports: http://www.dot.gov/gsearch/DUI%2Bstudies
DUI cases the burden of proof is on the accused:
Our drunk driving laws make it a criminal offense to drive a vehicle while under the influence of alcohol (DUI) or while having a blood-alcohol concentration (BAC) of .08% or higher. It is not, however, a criminal offense to be under the influence or to have a blood-alcohol concentration (BAC) of .08% while taking a breath test in a police station an hour or two after driving.
So how does the prosecution prove what the BAC was when the defendant was driving?
It’s a problem. You can try to guess what the BAC was in a DUI case by projecting backwards, using average alcohol absorption and elimination rates, but it’s only a very rough guess. The process is called retrograde extrapolation — a fancy name for trying to guess backwards.
The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates depending on many variables. In one study, for example, researchers found a wide range of matabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. Dubowski, “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects”, Journal on Studies of Alcohol (July 1985).
As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged. From the recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma:
It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded.” 21(1) Journal of Forensic Sciences 9 (Jan. 1976).
So, Mr. Prosecutor, you’ve got a breathalyzer reading of .10% an hour or two after the driving and the scientists say you can’t accurately project that BAC back to the time of driving: if the blood-alcohol level was rising, it could have been a .07% or even lower. That kind of leaves you in a pickle. What do you do?
Simple: You just get the legislature to pass a law saying that the blood-alcohol when tested is the same as it was when driving.
What? But that’s not true: BAC constantly changes as alcohol is metabolized. How can we legally presume what we know is not true?
Well, yes, but we can never really know, can we? But it sure makes the prosecutor’s job easier, doesn’t it? Let the defendant try to prove what his BAC was an hour or two earlier.
That’s right: most states now have laws saying your BAC was the same 3 hours earlier — unless you can prove it wasn’t! Typical is California’s law:
It is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving”. Vehicle Code sec. 23152(b).
Wait a minute….What about the State having the burden of proof — proof beyond a reasonable doubt? How can the law simply presume guilt and force the defendant to disprove it? What about the presumption of innocence?
No problem: we already legally presume a person is under the influence if he has a blood-alcohol level of .08% — whether, in fact, he is or not. And he has the burden of proving he was not under the influence.
Let’s not get hung up on details. The important thing here is that we get these drunk drivers off the road, isn’t it?
http://www.duiblog.com/2013/01/20/the-burden-of-proof-is-on-the-accused/