Judge throws out Intoxilyzer 5000EN breath machine evidence.
A judge in Dauphin County, Pennsylvania last week delivered a bombshell decision finding evidence provided by breath machines to be inaccurate outside a narrow range. After hearing extensive testimony from expert witnesses, the Court of Common Pleas judge found it was not appropriate for charges of "high rate" driving under the influence of alcohol (DUI) be established by providing a printout from a machine displaying a high number.
"The unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI, Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a defendant's breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent," Judge Lawrence F. Clark Jr. ruled.
In Pennsylvania, a separate "highest rate of alcohol" charge can be levied on a driver accused of having a BAC in excess of 0.16 percent. Enhanced penalties for this charge include a fine of up to $5000 for a first offense and a minimum three-day stay in jail. A third offense carries a minimum one-year jail sentence.
Testimony offered at the hearing showed the manufacturer of the Intoxilyzer failed to follow state rules requiring the solutions used to calibrate the breath machines be certified by an independent lab. CMI creates its own samples in-house, according to CMI engineer Brian T. Faulkner.
"As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth's own witness, Mr. Faulkner, at the hearing," Judge Clark wrote.
Since the machine did not follow state regulations, there was no way the court could determine whether the initial calibration of the machine was completed in a scientific and accurate manner. Moreover, the machine is only checked against samples of 0.05, 0.10 and 0.15 percent.
"If you're calibrating from 0.05 to 0.15 and did these three points, you have the correlation coefficient, you've proven to me that your instrument works -- definitely works between 0.05 percent and 0.15 percent. There's no data to say that it works at 0.16 percent. There's no data to say it works at 0.04 percent," Lee N. Polite, an expert in organic chemistry, testified.
Pennsylvania v. Schildt: http://thenewspaper.com/rlc/docs/2013/pa-intoxilyzer.pdf
Can police force drunken driving suspects to take blood test?
The U.S. Supreme Court hears arguments Wednesday in a case testing whether police must get a warrant before forcing a drunken driving suspect to have his blood drawn.
The court has long held that search warrants are ordinarily required when government officials order intrusions into the body — intrusions like drawing blood from an unwilling individual. The court has reasoned that such intrusions amount to a bodily search and thus are covered by the Fourth Amendment's warrant requirement. But the court has also ruled that there are exceptions to that requirement in what are called exigent situations — emergencies. And Wednesday's case tests how broad the definition of an emergency may be.
The case began in Missouri in 2010. Tyler McNeely was driving 56 mph in a 45 mph zone at 2 a.m., when he was stopped by state highway Patrolman Mark Winder. The officer administered four field sobriety tests. McNeely failed all of them, and when he refused to submit to a Breathalyzer test, he was arrested and taken to a hospital, where he also refused to allow his blood to be drawn. Although Winder had gotten warrants in the past without difficulty in such situations, he did not try to get one this time. He ordered the blood drawn. It showed a blood alcohol level well above the legal limit, and McNeely was charged with driving under the influence.
At trial, though, the judge threw out the blood test because it was obtained without a warrant. The Missouri state Supreme Court unanimously agreed, noting that there were no events that would have interfered with getting a warrant — there was no accident to investigate, no injury requiring medical attention, and a judge was on call to review a warrant application quickly. The state court said that under these circumstances, there was no justification for failing to get a warrant before forcing an unwilling suspect to have his blood drawn.
The state of Missouri appealed, contending that because alcohol dissipates in the bloodstream over time, that alone constitutes an emergency situation that justifies forcing a blood draw without a warrant.
"Our main point is that under the exigent circumstances exception, when we know for certain that important, reliable, evidence is in the process of being destroyed, a search warrant is not necessary because, during any delay to obtain a search warrant, you are allowing the best evidence of the crime to dissipate and be destroyed," says John Koester, assistant prosecuting attorney for Cape Girardeau, Mo. The state also maintains that in these circumstances, a warrantless blood draw is "a minimal intrusion."
But Steven Shapiro of the American Civil Liberties Union, representing McNeely, counters that alcohol dissipates over a matter of hours, and that here, where there was no emergency that could have interfered, a warrant could have been quickly obtained.
The arresting officer testified that he had never had problems getting warrants in the past. In fact, he testified that the only reason he didn't get a warrant was that he had seen an opinion from the state prosecutor's office saying that they were unnecessary in routine cases. That contradicted an opinion from the county attorney's office and a state police legal advisory.
The ACLU's Shapiro explains the reason for the warrant this way: "For the police to order medical professionals to put a needle into your arm and take blood is a fairly significant ... intrusion on your privacy and your bodily integrity. And that ought not to be a decision that the police are making without review by a judge."
Indeed, he observes, warrants can and were obtained in other cases in a half-hour or less, and a majority of states do require such warrants. He also notes that McNeely's refusal to agree to the blood test can have adverse consequences for the accused, since the refusal can be used as evidence against him at trial.
http://www.npr.org/2013/01/09/168868487/can-police-force-drunken-driving-suspects-to-take-blood-test
NPR blood draw discussion:
http://www.npr.org/player/v2/mediaPlayer.html?action=1&t=1&islist=false&id=168868487&m=168931702
Is the driver drunk?
The Fourth Amendment prohibits the police from searching individuals without a warrant, but the Supreme Court allows exceptions to that rule for “exigent circumstances” — when the police believe that the delay involved in getting a warrant would lead to destruction of evidence.
In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.
The Missouri Supreme Court wisely ruled that the warrantless blood test was an unreasonable search because there was no emergency that prevented the police from getting a search warrant in a timely manner before the alcohol in the driver’s blood dissipated.
Missouri is now asking the United States Supreme Court to overturn the state court ruling and to radically revise Fourth Amendment law so that police — without a warrant — can draw blood from every person arrested on suspicion of drunken driving, regardless of the circumstances. The United States government, siding with Missouri, argues that warrantless blood draws are needed “to prevent the imminent destruction of evidence.”
But in 21 states, including Missouri, the police have successfully obtained thousands of warrants to get blood alcohol evidence.
If the Supreme Court applies the blanket rule Missouri seeks, it will diminish constitutional rights without increasing public safety in any meaningful way.
http://www.nytimes.com/2013/01/06/opinion/sunday/is-the-driver-drunk.html?ref=todayspaper&_r=3&
Be wary of statistics like "alcohol related driving deaths."
The NHTSA defines a fatal traffic crash as being alcohol-related if either a driver or a non-occupant (e.g., pedestrian) has a blood alcohol concentration (BAC) of 0.01 grams per deciliter (g/dl) or greater in a police-reported traffic crash. To put 0.01 g/dl in perspective, ten times that amount is required to achieve a BAC of 0.10 g/dl, which is the legal limit of intoxication in most states. Yet MADD continues to mislead America by allowing the public to believe that there were 17,448 victims of drunk drivers in 2001.
In laymen terms, if a legally sober driver is involved in a traffic accident in which another legally sober person is killed, and the person killed happened to drink one beer 30 minutes prior to the accident, the NHTSA will classify that fatality as alcohol-related, and MADD will use that particular fatality to bolster its numbers in an effort to persuade the legislature to enact tougher laws to curb drunk driving.
To further illustrate, according to MADD, there were 16,653 drunken driving deaths in 2000, while the NHTSA refers to these same fatalities as alcohol-related traffic fatalities. Of these 16,653 alcohol-related fatalities, 12,892 involved at least one driver or non-occupant with a BAC of 0.10 g/dl or greater. 7,326 were the intoxicated drivers themselves, and 1,594 were legally intoxicated pedestrians and pedal-cyclists. The remaining 3,972 fatalities were non-intoxicated drivers, passengers, and non-occupants. So how many actual victims of drunk driving were there in 2000? Excluding the 7,326 legally intoxicated drivers and 1,594 legally intoxicated pedestrians/pedal-cyclists, there remain 3,972 fatalities. But not all of these deaths can be considered victims because the NHTSA doesn't concern itself with the cause of accidents. So if a sober driver is speeding and crashes into another driver who happens to legally intoxicated, and the speeding driver dies; is the speeding driver's death a alcohol-related fatality? Of course it isn't, but the public will be spoon fed this death as the tragic result of drunk driving. (MADD consistently implies and/or allows the public to believe that all alcohol-related traffic fatalities reported by the NHTSA are in fact innocent victims of drunk driving).
The federal government defines an alcohol-related fatal traffic accident as an accident where someone died and a person involved in the accident had some measurable amount of alcohol in his or her system. For example, a sober driver hits a pedestrian who has been drinking, even modestly. That's considered an alcohol-related accident. A sober driver rear-ends a driver that has had something to drink. That's considered an alcohol-related accident. A man has a drink before committing suicide in his vehicle. That's an alcohol-related accident. A driver has a single drink and is involved in a fatal accident that he did not cause. That's considered an alcohol-related accident. Do these sound like "drunk-driver-caused" accidents to you? That's what the government and the anti-drinking organizations would like you to believe.
In all motor vehicle accidents, where a driver is given a traffic ticket, or is arrested, only 7 % involve an alcohol-related violation. This number is far more indicative of the "drunk driver" problem.
We frequently hear that drunk drivers "cause 50% of all highway fatalities." This falls into the category of "tell a big enough lie long enough and loud enough and people will believe it."
The truth is closer to 10% of all highway fatalities are CAUSED by drunk drivers. This isn't good, but let's at least put the issue in perspective. Our government and certain self serving "non-profit" organizations have exaggerated this problem beyond any sense of reality to promote an agenda that eliminates basic individual rights, undermines our system of due process and heaps onerous penalties on people who have not injured anyone and may not have met any reasonable standard of "impairment."
So where do the numbers that we hear being repeated time after time come from? The "government speak" term is "alcohol-related." This term was created to deliberately mislead and confuse the general public about the magnitude of the drunk-driving problem. When you hear some "expert" state that 40 or 50 percent of all fatal accidents are "alcohol related," the intention is to make you believe that drunk drivers are responsible for causing all these fatalities. This is pure propaganda.
http://www.alcoholfacts.org/MADDtruth.html
http://www.motorists.org/dui/myths