Arrested for DWI without Drinking:
Radley Balko reports on a woman who was arrested for DWI after refusing a roadside sobriety test even though she had not one drop to drink. Her blood test came back 0.0, but the police officer's report described a woman who almost had to be drunk. One possibility is the officer recited boilerplate indications of alcohol consumption. Another is the officer had a vendetta against the woman's husband -- a DWI defense attorney who was in the passenger seat when she was pulled over. Balko reports, you decide.
I got pulled over on the Arkansas-Tennessee border for suspected drunk driving when it was really nothing but brain-dead exhaustion. Apparently, people who are tired make the same driving errors that drunk drivers make.
what pisses me off is the prosecutors who prosecute such cases even after they get picked up and blow zero-forcing innocent people to pay thousands in attorney fees despite being clearly and demonstrably innocent-and for those prosecutors to have absolute immunity for such decisions even while making cold calculated decisions that make no sense given the facts-while cops are given only qualified immunity for their on the spot decisions.
I suspect theobromophile has right hypothesis. Like him, the same thing happened to me.
Fortunately I was very near home and the policeman told me to get off his interstate and get to bed.
Even if that had been true, the officer would still have a hard time explaining this sentence in his report:
“Strong odor of an alcoholic beverage emitting from breath.”
All persons suspected of a DUI are noted to have "The odor of an unknown alcoholic beverage on [his/her] breath, bloodshot, watery eyes, and slurred speech." These elements are in every single DUI ticket I've seen in private practice or with the public defender, regardless of whether the person actually was intoxicated on alcohol (I had a case . . . ;)).
It's the biggest con in the world. They can't take your blood or breath without some level of probable cause. These elements have been determined to meet the minimum level of probable cause to support a stop. Therefore, if an officer stops someone, that person must have the three elements, so they can take the driver's blood or breath.
--G
And if no one got a blood or urine sample to do a drug screen, then it's a simple matter. Case not filed.
As for the smell of an alcoholic beverage, has anyone here ever heard of ketosis? When this occurs the body is converting fats into energy and ketones are produced that often cause the person's breath to smell very fruity, and it is often mistaken for alcohol. So give us a break and wait for the full facts to come out. If the cop was wrong, there may be an explanation. If he is a liar, maybe there will be a way to get him off this job.
Rant out.
A no brainer: the cop is lying unless there is some non-alcoholic thing that makes your breath smell like alcohol.
Plus the officer who arrested him misplaced two digits on the CLETS form and reported his blue 1973 Chevy pickup as a green 1978 Ford pickup. I had fun with the DA and the officer at trial.
Especially when, after getting Officer Tate to swear up and down that my client was driving a green 1978 Ford pickup, license No. so &so, I put its owner on the stand. Who had driven it to the hospital the day before to deliver her first child.
I hope all the pro-defense types who are posting with venom are also posting with the same level of outrage whenever they read about a DUI fatality. The amount of DUI fatalities would keep these posters pretty busy for the year.
And, in my limited prosecution career (unfortunately my career is too short to have busted a cop, unlike 30yearProf - although I have managed to prosecute several people who beat up their wives and broke bones - but that is pretty harmless when compared to a cop who maybe tells a lie to catch a person who has probably committed a crime or two in their lives anyways), I've seen at least two breath test results of .000 where the officer saw some signs of alcohol consumption (on one occassion, three officers - the one on the scene and two at the station - all reported the same thing) and the person insisted that they had been consuming some amount of alcohol (even after the .000). I am no scientist, but I understand this happens becasue alcohol can still be smelled emitting from the skin even after it has been digested.
i think its comments like this that make us latch on to stories like this.
why not just lock people up at random? after all-"they probably committed a crime or two in their lives anyways."
moron
Maybe if it didn't have power steering ...
They were 1) stand on one leg without using my arms to balance; 2) walk a line heel to toe without using arms for balance.
Since I was unable to perform either in a climate controlled room, I did not find it difficult to believe that the defendant could do better outside, at night, in wind and snow.
Also, the officer testified that she *always* had a suspect count up and down from 27 to 35. In the police report, she stated the numbers were 32 to 39.
It still took 6.5 hours to find the guy not guilty.
If you told a cop anywhere west of LR on US 40 that you thought you were "on the Arkansas-Tennessee border", I could understand why they thought you were a mite confused.
I'm still a girl, though. Contrary to popular belief around here, apparently.
Don't you think that if detecting DUI is your professional responsibility, you should make sure you can distinguish alcohol breath from ketosis, not least to protect yourself from giving false testimony ?
The lab test shows the cop was wrong, the only question is, wrong by intent, or wrong by negligence ? Which type of wrong do you prefer in your cops ? [/rant]
I'm glad your prosecution career was "limited." Was the limit voluntary? Or did your supervisors have the integrity to fire your for unethical behavior?
Dishonest behavior by cops hurts law enforcement in the long run--First, it destroys the ability to anyone else to determine what really happened. That can cast reasonable doubt on the case against a guilty person. It can also cover up faults in a case against an innocent person.
Second, it distracts cops from getting guilty people off the street. Here, Officer Bond Gonzalez and four other cops spent hours of time on an innocent individual. How many real drunk drivers could they have arrested if Officer Bond Gonzalez had simply issued a ticket for the headlight violation?
Third, the next time Officer Bond Gonzalez testifies in court, he can be cross-examined about how he detected the smell of alcohol on the breath of someone who hadn't been drinking.
Fourth, it chips away at the inherent trust jurors and judges have for the integrity of cops.
Fifth, Few things encourage defense lawyers to fold and accept a pro-prosecution plea offer than when an honest cop nails a defendant cold. Dishonest cops cause more cases to go to trial, wasting resources on cases that would have settled if the cop's word could have been trusted. (See Also, fourth point above).
Sixth, the department will likely have to devote resources away from law enforcement in order to pay for a successful lawsuit.
Drunk driving is a scourge that has to be fought. But some of the weapons used are dishonest or unreliable. Much of the "science" (breathalyzers and FST's) would be called junk science if proffered in a civil case, but prosecutors and cops don't have to follow the rules that other lawyers do when it comes to Daubert issues.
On the "positive" side, the more aggressive the laws are, and the more dishonest the cops are, the higher the demand for criminal defense lawyers. Criminal defense lawyers are possibly the only lobby that consistently argues against its own financial interests.
You mean "at worst" a police officer lied his a$$ off to fake probable cause? You don't think that's bad enough?
I've had a police officer lie to me to try to intimidate me into falsely confessing to DUI. I know police officers can be scum. I know they are wrong or pond scum about one quarter of the time.
"At worst"! That is a despicable attitude.
Why on earth would you think we wouldn't, and why on earth do you think police officers faking PC for an arrest has anything to do with the other?
Are you trolling?
Yours, TDP, ml, msl, &pfpp
PS. Redlands, you deserve richly to be piled on. Her blood test BAC was 0.0. Way to pay attention.
As for "boilerplate" used to set forth the facts required to justify probable cause . . . there really are no words for an adequate response.
Your disregard for the rule of law and the low value you place on honesty before the court makes you unfit for membership in the bar.
So as long as the cop ritually recites DWI boilerplate the bust is good?
He said he smelled alcohol on her breath. Really?
It's the ultimate subjective crime. Factor in that cops get paid overtime to testify in these trials (at least in Houston they do), and it gives them an incentive to arrest innocent people. Blatantly guilty DWIers who vomit or admit to "just a few beers" in the scene videos will plead out - no overtime trial testimony money for Mr. Pig. So they arrest innocent people who will put the state to its burden, which will require the cop to come and perjure himself about things nobody can prove are false - like the aforesaid generalities (glassy eyes, etc.). Every member of the HPD DWI Task Force makes over $120,000 per year, half of it overtime DWI trial testimony wages. It's a scandal nobody gives a crap about, and it's not just Houston.
But surely "a cop would never, or rarely, knowingly commit perjury just for some extra money!" Shut up and go watch some criminal trials, then get back to me on that.
Second, it distracts cops from getting guilty people off the street. Here, Officer Bond Gonzalez and four other cops spent hours of time on an innocent individual. How many real drunk drivers could they have arrested if Officer Bond Gonzalez had simply issued a ticket for the headlight violation?
Third, the next time Officer Bond Gonzalez testifies in court, he can be cross-examined about how he detected the smell of alcohol on the breath of someone who hadn't been drinking.
Fourth, it chips away at the inherent trust jurors and judges have for the integrity of cops.
Fifth, Few things encourage defense lawyers to fold and accept a pro-prosecution plea offer than when an honest cop nails a defendant cold. Dishonest cops cause more cases to go to trial, wasting resources on cases that would have settled if the cop's word could have been trusted. (See Also, fourth point above).
Sixth, the department will likely have to devote resources away from law enforcement in order to pay for a successful lawsuit.
Well said. In addition, dishonest cops break the law and violate the Constitution. Aside from the more nuanced consequentialist arguments in favor of police honesty, there's the simple fact that a lying cop is increasing rather than decreasing the overall amount of crime. This behavior has been consistently criminalized throughout the country as well as federally, and it's no accident - the overwhelming consensus is that this is exceedingly bad behavior that should be punished when discovered.
She had all zeros after the 1/2 hour observation period. On follow-up questioning when we told her we were applying for search authorization for her blood, she admitted to taking prescribed painkillers and having had one drink.
It happens.
Best,
Ben
"...driving a car is unlikely to induce it."
But a strict "carb diet" or uncontrolled diabetes will. Redlands scores.
But after the breath AND urine tests came back clean the charges were dropped.
Luckily "who cares?" wasn't part of the local law enforcement there. (Incidentally, who, if it doesn't matter who gets busted, when are you volunteering for your thirty days in jail?)
We want cops to tell the truth; we don't want them to be creative writers or to arrest people based on signs of drunkenness that they imagined on the spot. Cops should have a checklist of valid signs for probable cause to take someone in for DWI. The fact that they use standardized terminology is not proof that they are lying. Why, lawyers use standardized terms all the time and .... they never .... ugh....
If it was a mild odor or a medium odor, can there not still be probable cause?
I found DUI officers honest, and when I won (more than half of the cases), willing to take the hit as part of the job.
If their testimony sounds like boilerplate, they have probably done lots of DUI's. This is Colorado, and 20 years ago.
As long as we're speculating on possibilities, how about this one: the whole thing was a set-up from the beginning. DWI defense attorney has wife (unfamiliar with truck even though it's registered to husband) drive around without headlights on. Maybe has her gargle beer beforehand and spill a little on her clothes. Tell her to act a little drunk. None of that will show up on a breath test, which will vindicate her. And there will be two other witnesses.
I'm not saying this happened. But it's *impossible* only if you think the DWI defense attorney is unhappy to have this lawsuit against a police department, and more evidence of police corruption. It also might explain why he 1) made a point, for some reason, of producing his bar card to the cop, so the cop knew he was a DWI defense lawyer, 2) apparently didn't demand that his stone-cold sober wife be allowed to take a field breathalyzer.
I will repeat: it's only a possibility. I'm not saying I believe it's what happened.
I will repeat: it's only a possibility. I'm not saying I believe it's what happened.
I will repeat: it's only a possibility. I'm not saying I believe it's what happened.
I repeat that again three times so that, when the libertarian commenters pretend I am saying the opposite, it will be clear.
Cut-and-paste boiler plate is best confined to certain standard clauses in contracts and portions of common motions - it is not appropriate for sworn statements of fact regarding a specific incident.
Do you object to standard clinical terms in autopsy reports? I don't see what the problem is with cops using standardized clinical language to describe commonly observed situation as long as they are doing so truthfully. To say that the use of standard language can be used as proof that the statement is false is a fallacious argument (though one used in this thread and one used by lawyers all the time). Of course it is wrong for any witness to lie, but it doesn't matter whether their language is clinical or colloquial.
He's probably just a liar who was looking to arrest someone he knew was not drunk to satisfy his quota.
Recently before the events reported here, the husband in question had a client who beat a DWI charge where the testifying officer was the arresting officer here.
Y'all are coming to conclusions without all the facts, that's all I'm arguing. Who here would want to close the case on the admission of evidence after the prosecution rested? So why jump to conclusions in this case without knowing all the facts? I'll be the first to admit the cop may have been right, may have been sloppy in writing a report, or may have been lying. But if you're going to make judgment calls without knowing all the facts I hope you don't end up one of my juries, whether you're "pro prosecution" or "pro defense."
I've lived and/or worked in the area known as South Los Angeles for 39 years. Based on the conversations I've had over the decades, nearly everyone who lives there either has personally witnessed police abuse or police lying or has a relative or a friend who has.
Yet the police wonder why in some hotly contested trials the jury at the courthouse in downtown Los Angeles or in Compton didn't believe the police testimony that was crucial to the prosecution's case. And they wonder why in some elections the police bond issue went down to a narrow defeat at the polls with the highest negative vote coming from South Los Angeles.
High, I'm guessing. I have very low blood sugar and am only subject to random bouts of complete flakiness, not pseudo-inebriation.
The cops started giving medical folk tickets for everything in sight. They even gave a ticket to a married couple who were residents for one giving a kiss to the other as she let him off in front of the hospital — they said she created a traffic hazard. Just about everybody I knew got a traffic ticket of one sort or another.
We responded by removing the special privileges we gave the cops when we treated them. Normally, when they came to the local hospital after suffering some trauma in their job, they went to the front of the line. Even if they just needed a couple of stitches, they were taken care of by the attending or Chief Resident in the ER. When this broke out, suddenly they got to sit in the waiting room and get triaged like everybody else. Oh, and that laceration on your scalp — well, it turns out we have a third year medical student just starting his surgery rotation who need some practice. Need some pain meds? Well, here's some aspirin. That oughta do you fine.
Needless to say, nobody was a winner here.
Eventually, things settled down, and to my benefit. I had been in a car accident a couple of months prior, and had never had time to get my car fixed. My front end was battered, but I normally tried only to drive during the day when I didn't need my headlights. One morning about 3 am, though, I ended up going home from being on call. One of my headlights was out and the other pointed up somewhere in the direction of the Pleiades.
Sure enough, a cop stopped me. I knew I was a goner. He asked me what the heck I thought I was doing driving downtown without any useful headlights. I told him that I had been working on my feet for the past 36 hours and just needed to get in my own bed for a little while. He said "You one of those [location] doctors?"
"Well, I'm a 4th year medical student."
"Hmm. OK. Well, we aren't giving you guys tickets any more, so I'm not writing you up. But try to get that fixed."
"Thanks, officer."
"Have a nice night."
That pretty much cured me of any illusions I had about whether or not cops gave or did not give tickets for reasons other then actual behavior in traffic.
In the government’s own SFST validation study, “Seven highly experienced alcohol enforcement officers, personally trained by Dr. Burns [the psychologist who invented the SFST], patrolled a major US city for more than five months, stopping and assessing hundreds of motorists with SFSTs. And in all those months, in all those hundreds of tests, only one officer ever completed a single SFST that came back “non-impaired” at the 0.04% BAC level. NHTSA science proves that for six of seven highly experienced DUI patrol officers, every single driver who is able to take the SFST fails the SFST.
At BAC 0.04% six of seven officers failed every driver who could take the test. Their accuracy on innocent drivers was zero percent. Zero percent! “
(as an aside, the first 0 in the 0.0 is meaningless, if you have a 1.0% BA you will be dead--alcohol tests are based on 0.00 system--a 0.08% BA level is legally intoxicating in all states)
As a person consumes alcohol, the alcohol level rises and continues to rise as the body continues to metabolize alcohol into the sytem, even after the person has stopped drinking. Each ounce of alcohol (NOT each ounce of an alcoholic beverage) causes the blood alcohol level to rise by approximately 0.02%.
(12 ozs. of beer contains approximately an ounce of alcohol, as does 1 mixed drink).
Alcohol then begins to "burnoff"--at a fairly standard rate of approximately 0.02% per hour.
If a person consumed one alcoholic beverage just before speaking with a police officer (or anyone else) that person might have a strong odor of alcohol. If it takes an hour before a blood draw or a Breathalyzer test, then the person, despite having a strong odor of alcohol, will have a BA of 0.00%.
BTW, the NTSA field sobriety tests are IMHO the most reliable. While I agree the Walk-and-Turn and One-Legged-Stand tests can be result of general clumsiness, you can't fake horizontal (or vertical) nystagmus.
I am not saying that is what happened in this case--it likely is not and I abhor dirty cops as much as the next guy--but I did think it helpful to the discussion.
A Corvalis OR police officer was terminated last year because he was 'overly aggressive' in arresting DUI suspects. The DA in his county has declined to pursue approximately 100 cases because of the actions of this officer.
He has now moved to Boise ID and has set up a private practice to help defend people against DUI. Apparently for $250 he will assist your attorney in building a defense case specifically looking for some of the "overly aggressive" techniques he used as a police officer.
I guess that all depends on how "standard" standard is. In fact, there are significant variations in ethanol absorption and elimination depending on a number of factors, including ethnicity, gender, polymorphism in the genes that make the enzymes that break down ethanol, feeding (subjects who had just eaten a 530 calorie meal eliminated ethanol 25-30% faster than those who had been fasting -- both with oral and intravenous ethanol), previous drinking history, and other features. Oral glucose increased the alcohol elimination rate by 5-272% following intravenous ingestion of ethanol.
The basic elimination slope (K0) can vary from 0.1 to 0.25 g/L/h, and the overall metabolic pipeline can vary by a factor of 3.
For a review, with a nice table of different modifiers, see:
Norberg A, Jones AW, Hahn RG, Gabrielsson JL.Role of variability in explaining ethanol pharmacokinetics: research and forensic applications.Clin Pharmacokinet. 2003;42(1):1-31.
Elsewhere on the DUI front:
July 7, 2008 – Sacramento
Since the early 1990s, the California Department of Motor Vehicles has been handling drunken boating convictions — aka BUIs — like drunken driving convictions in the sense that they've suspended the driver's licenses of the offenders. There is just one problem with that practice — in early June, the Court of Appeal Second Appellate District Division ruled they didn't have the right to do so. Such an action would have required a law passed by the California Legislature — which will probably be forthcoming.
The Phoenix New Times article (linked by Radley Balko) stated:So, Gonzalez, whom Squires had just examined in DWI case recently, didn't know Squires was an attorney until Squires produced his bar card. And Gonzales believed that Squires was trying to convince him that he worked for the county attorney.
If Squires really did that, then Squires must be dumber than a post. So, one has to wonder how he previously was so effective in court against Gonzales' case.
Maybe Gonzales is the epitome of honesty, and he just has a remarkably short memory.I'm not saying that Gonzales is a crooked cop, or that I believe he is crooked.
I didn't repeat that three times because I know that attorneys know or should know the meaning of "cumulative".
So, when prosecutors who believe that no cop can ever do wrong, and that all citizens who question a cop's integrity based on facts are criminals or cop haters, pretend that I am saying the opposite, they will know or should know that I said it.
Furrfu!
It is if you think about the circumstances of the stop. How is a defense attorney going to make sure that he can 1) get his wife to go along with this ploy and 2) make sure the officer that stops him is the one he is trying to "get back at?"
The idea is absurd.
Based on experience, the defense att'y constantly tells his wife, "Never, never, never blow a test if you're pulled over. Never." So she declines the test.
Either the cop's been drinking, or he has some 45 proof mouthwash in his car. He knows who he's just pulled over. If she takes the test, he just replaces her test with his. Guaranteed conviction; newspaper headlines: "Cop Nabs DUI Attorney's Wife On Drunk Driving Charge"
That's just as likely. I know. True story: I was pulled over by two cops, who told me to get out, then rifled my car, looking for I don't know what. When I followed their instructions to get my registration out of the glove compartment, I smelled a very strong odor of booze. I blurted out, "Someone's been drinking!"
Without saying a word, they both slinked back to their car and left me holding my registration.
There are however, causes of nystagmus that don't involve any intoxicating substances. Perhaps you can argue that people with benign paroxysmal positional vertigo shouldn't drive, but AFAIK, it isn't illegal.
I never had any such training.
First thing we were taught in breathalyzer school, however, was that alcohol is a colorless ODORLESS liquid. Alcohol has no odor.
Liquor? Now that's another story.
Yes, I'm a smart .. alec.. but we were always careful to make a distinction.
Now obviously there could be some person at .032 who has a strong odor (because of having beer spilt on them etc.) but if everyone has a strong odor of alcohol...the cop is lying.
you can't fake horizontal (or vertical) nystagmus.
</blockquote>
Wouldn't it be nice, then, if the arresting officer took video evidence of the nystagmus at the scene?
Then we wouldn't have to speculate, or play he-said/she-said games.
Also common in ketogenic diets - what the laypublic refers to as "atkins diets".
Fwiw, I have taken FST's twice after being pulled over and having liquor on my breath. I passed both times and that was that.
It is generally (I have made this point before) stupid not to take FST's if you are innocent. They PROTECT you.
As Smokey observed at 7.8.2008 12:05pm, a corrupt cop can even slug mouthwash and substitute his own breathalyzer test, and usually nobody can prove it.
The real problem is as much corruption and willful judicial blindness as whether any particular test is reliable.
this is staggeringly ignorant of the way breathalyzer works. The instrument must get a certain volume of air before it takes a sample. This ensures that alveolar NOT mouth air is used. The instrument is designed to err on the side of the caution in regards to divergence between BRAC and BAC. Iow, the breathalyzer can (and sometimes does) read lower than actual BLOOD alcohol level, but not higher.
Did the officer who pulled you over know you were an officer BEFORE he told you that you had passed the test?
considering i WASN'T an officer, the answer is no.
This was in college.
Look, I have administered personally over 500 FST's. That includes mostly DUI cases, but also some MIP's.
In only about 1/3 of the FST's I administer did they fail the FST's.
The FST's are an evidence gathering technique. Like any evidence gathering technique, if you are innocent, they tend to HELP you, and if you are guilty they tend to incriminate you.
A
But it's not the way to bet. Either.
Only if the officers are honest. And, to reiterate a point I made earlier, if a particular always notices a "strong" odor of alcoholic beverage whether the reading winds up in the .3 range or the .03 range, you can pretty well assume he's lying.
Well, yes. Hattio . That goes w.o saying. The same is true of Miranda warnings, too. And any # of things. Yes, a lying witness can get innocent people in trouble. that's true of civilian as well as cop witnesses. Duh
The difference in DUI cases is that there is ALWAYS an impartial witness available. The breathalyzer. So, as I have stated ad nauseum far far far more people are prosecuted based on false complaints in DV cases, etc. than in DUI cases.
Because if you are arrested for DUI and you are INNOCENT the BAC will save you. Period.
It won't falsely accuse you or mistakenly accuse you like witnesses/"victims" so often do.
It has no bias, no animus, etc.
As was shown so well in this case.
Also, a lying cop can create far more havoc in almost any other kind of case than DUI. He CAN plant evidence, he can etc. etc. But in a DUI case, the BAC is an impartial truth arbiter. Again, that's my point. As shown in this case.
Generally, speaking, a cop has less incentive to lie in a DUI case in regards to framing an innocent, because the breathalyzer won't back up his lie.
And yes, if he ALWAYS smells a strong odor of liquor despite disparate readings later, then he is doing the "boilerplate" lie.
If you were alone in a room with a person and they claim that you threatened to kill them and shoved them, how do you PROVE you didn't? Nigh impossible. You might be able to have reasonable doubt, but that's an issue for trial - iow, it may go that far.
if you are arrested for DUI, and you are in fact NOT dui, the BAC can PROVE that negative.
Now, it IS true that an officer could make up 'extra' pc and facts etc. if he suspects you are DUI to bolster his case, and the breathalyzer is not going to show those things were lies, since it only addresses the BAC, not that he falsely claimed you had 6 nystagmus clues instead of 4.
But you get my point
Pretty sharp of the DUI attorney to use his Jedi Mind Trick powers to force both Bond Gonzalez and his supervisor to skip the Breathalyzer test -- which, if she'd been drinking, would have shown that she was, thereby gathering evidence to support a prosecution for DUI -- and instead proceed directly to an arrest, setting up the Mesa PD for a lawsuit and public humiliation at the cupidity and/or stupidity of at least two of its officers.
And the setup only gets cleverer. Instead of just copping to some bad judgment in not going for the Breathalyzer, I'm not sure how the DUI lawyer got the department spokesman, Steve Berry, to put forth a lame explanation that the cop didn't have any other choice, making not only Gonzalez, Gonzalez's supervisor, and Berry look stupid, but spreading the dumb over the whole department. This Squires guy should give up practicing DUI defense, and get involved in personal injury stuff, if he can, by remote control, make the other side come off so badly -- lots more money in it, after all.
I think I like the space aliens theory better.
Of course, we could just go with Occam's Razor: a not terribly bright, not terribly professional, cop who is trying to fill a DUI quota was doing that, and thought he could get some revenge on a lawyer who had embarrassed him in court some time before.
Hmmm... maybe Gonzalez should have been asked to blow the Breathalyzer himself . . . .
FIRST: Your HO is not in line with established fact. The science has been done. For 6 out of 7 officers, everyone who takes the NHTSA FST fails the FST.
SECOND: "you can't fake nystagmus" misunderstands the issue. You can't fake good balance either. The relevant questions are: Does HGN predict BAC? and Can officers even measure HGN? Again, the science has been done. A graph of HGN vs BAC is here.
Even the worst possible nystagmus result is compatible with alcohol levels well within any current legal limit.
That's how i read it to. Like I said, driver was a moron for not taking the FST's, but she has a defense lawyer as a husband so maybe that's idiocy by osmosis :)
When studies contradict my (vast) experience, I gotta call bull#$(#$.
I have NEVER had somebody fail nystagmus (6 cues) who blew under a .10. Never.
With 4 cues, I have seen as low as a .06
I am aware some people have natural nystagmus. Most who do KNOW so fwiw.
I went to academy with a guy who had a natural nystagmus AND was immune to pepperspray. He was a superfreak.
So, I realize my 'n' is only 500, but I'll rely on my 500 data points.
I was a student prosecutor in the People's Republic of Massachusetts. At the time people charged with some misdemeanors got two bites of the apple -- they could take a bench trial in a local court, and if they lost get another trial in another court. As a result very few people viewed the first bench trial very seriously. Including the officers, frankly, who would visibly tick off the symptoms of intoxication from some sort of checklist: reciting them staccato, checking off on fingers, looking up, etc. It went to the point that an officer listed slurred speech despite previously testifying that the guy never spoke.
Not that DUI defendants didn't also come up with crazy shit. Hence one of my favorite cross-examination moments ever: the defendant blamed his stumbling around on having had "real weak legs" ever since high school. On cross he admitted that after high school he spent a couple of years in the 82nd Airborne.
Biolerplate is a serious problem. I totally agree. I have arrested a # of duis that did not have slurred speech or had a moderate odor of liquor.
Does that make the case sound 'weaker?'
Sure. But it's the truth. reports and testimony are supposed to be accurate, not be tilted towards making a better case. Period. I have no tolerance for that crap.
No. Not according to NHTSA standards, he doesn't. You are also supposed to ask if the subject has any injuries, or medical conditions that would prevent standing on one leg.
Yup, and thanks. For some cynics out here (he said, looking in the mirror), it's important to get a reminder, every now and then, that there's at least a fair number of folks with badges who get it.
Whit,
What you learn about the breathalyzer in your training course's is not completely accurate. There are a number of factors that can raise someones bac to include smoking. The best thing to do if you are innocent is to get a blood test.
I have seen no evidence of that. Also note that you must wait 20 minutes with observation (no smoking, eating, etc.) before administering the BAC.
The BAC via blood will usually read the same OR higher, but more power to you if you want to get one. In my state, you have the right to have a test administered on your own as well. In my entire career, I have never had anybody ask for one, but they have that right, as they should.
Yes. I once had an INSTRUCTOR ask the class "what is the purpose of an interrogation?" His answer was "to get a confession". I spent ten minutes arguing with him . The point of an interrogation is to get the TRUTH. Not a confession.
Anyway, maybe I'm just argumentative like that. But an instructor making that claim is really sad.
Another instructor claimed that the purpose of an investigation is to gather evidence to make a stronger case agains the defendant. Um, no. The purpose is to gather evidnece - inculpatory or exculpatory.
This stuff REALLY pisses me off.
End of rant
Just a thought, if you, and presumably other officers, are trained that way, maybe, just maybe, just a slight smidgen of the "anti-police bias" that you are always identifying on here is accurately placed? I've said it before, I think you truly try to be an honest ethical police officer. But I KNOW that officers like you are the exception.
I think anybody who thinks they know whether generally good, professional cops or generally bad, unprofessional ones are the rule or the exception is probably a lot more certain than they have any business being. YMMV.
19 out of 20 honest people is a great ratio in any profession. I just think the police, in general, do a bad job at ejecting the dishonest 5%.
:ahem: It's no wonder that breathalyzer companies fight so hard to keep their source code secret. I would too if my code was half this bad.
Then that, by definition, means that your instruments are poorly calibrated. The correlation between breath alcohol analyzers and blood alcohol concentration is good but not great, but if calibrated it is unbiased. In one recent study, the correlation between blood and breath test results was r=0.936 by Pearsons r.
Assuming that the breath analyzer is properly calibrated, then, one has nothing to lose by requesting a blood test if the breath analyzer is positive, and much to lose if the breath analyzer is negative.
you are missing the point. The issue is that the way they are designed is to UNDERestimate by FORMULA.
It's kind of like speed formula (dopplar radar). the greater % of angle you are from perpendicular to the target, the LESS the speed will read vs. the actual speed but it will never read ABOVE the actual speed.
Rubbish, and I have already posted the stats on this, as this is a frequent canard posted on this site. Comes from the bias that when you are posting within your own in-group, your misperceptions of society at large's opinions are rarely challenged. It's like the old pauline kael/nixon thang. The vast majority of the public finds cops overall very trustworthy and worthy of respect and they routinely rate MUCH higher than lawyers in this regard I might add. I'll take stats over your assertion any day of the week.
I totally agree. That's my perception after working for 3 different agencies, and it's the general impression I get from others as well.
whit, if you read the PDF I linked to you'll see that at least one manufacturer is using poorly designed software that operates on 20 year old hardware. The FORMULAs they use are wrong, too.
I'll check it out, but I repeat. I have YET to see any evidence... (once I check it out, then I might see it ) :)
The point is this. If you aren't legally impaired, the BAC is your best frigging friend.
I realize for many lawyers, trials and law is not about a search for truth, it's about the PROCESS.
The BAC, refreshingly, is about revealing truth.
Freeing the innocent, punishing the wrongdoers, etc.
Based only on the information in the Balko post, it appears that this woman has a good cause of civil action against the officer and police department for false arrest (anyone want to lay odds on whether that will occur? Thought not). The prosecutors wisely dropped the case, but it does raise several questions. Did the officer make an honest mistake? If so, he surely needs, at least, retraining in DUI detection and arrest procedures. Does the officer have a history of this sort of "mistake?" If so, the police agency involved had better deal with this, and quickly. Of course, if the officer acted with malice here, he deserves to be fired and sued.
Let's remember, however, that we have only a portion of the facts.
Now obviously there could be some person at .032 who has a strong odor (because of having beer spilt on them etc.) but if everyone has a strong odor of alcohol...the cop is lying."
Hattio-
But we don't see the reports of everyone who is pulled over. We see the reports of everyone who is booked. I expect that everyone who is booked to have clearly defined symptoms of drunkenness. If a cop can't honestly use a couple of the boilerplate phrases, then we should never see the report. An honest, well-trained cop will only book people with clearly defined symptoms of drunkenness, e.g., a strong odor of alcohol on his breath. An honest, well-trained cop should describe those symptoms in an accurate, precise manner. Since the symptoms are well defined the descriptions of individual symptoms should not vary that much from case to case.
Sure, a dishonest cop can imitate a good cop. But writing clearly and predictably is not evidence of dishonesty.
Sure. But like tends to attract -- and, for that matter, generate -- like. A good agency/PD will always have folks who make mistakes (duh!), an occasional person who will go in the wrong direction, and a very rare occasional bad hire, but it will tend to attract and hire folks who fit in; good, service-oriented cops (or candidates) who can't stomach arrogance and incompetence generally won't make the cut in the first place in a bad department (or division); or, if they do, they'll end up on the outside.
I've been doing HR 218 training for the guys who retired out of a local PD with a great rep for the past couple of years*, and even over a very few afternoons and evenings it's easy to spot some of the indicia. Retired chiefs and deputy chiefs are still, sometimes decades later, proud of their hires (even though some of the hires have long been retired, as well).
I'm not going to suggest that no good cop would be uncomfortable getting their HR 218 training from a guy with a known critical eye (and mouth) for Bad Cop Stuff, but I am going to argue that thumpers/serial testilyers/various sorts of other badged miscreants would; I can read a room pretty well, and if there'd been some nervousness about a cat or two being let out of the bag, I'm pretty sure I'd have spotted it.
______________
* Forgetting, for a moment, how wonderful I may or may not think I am, for a bunch of retired cops to be comfortable taking their annual HR218 stuff from a guy whose background and orientation are entirely civilian self-defense, not law enforcement, speaks a volume or two.
Bob, not get all lawyerlike but...
it's not dispositive. it's suspicious.
i have arrested plenty of DUI's that did not slur, or did not have a STRONG odor of liquor.
DUI runs the gamut from .08 to (my highest I have arrested) a .464
Many .08 to .12 , especially practiced alcoholics will have NO slurring, and fumbling, etc. at those levels. they are still legally impaired though.
Your point about it only shows those that are BOOKED (selection bias in the other post) is spot on.
The issue in THIS case is that the woman had NO measurable BAC *and* he said strong odor. that's suspicious. When countered with the fact that ALL his dui's have "strong odor" that's more suspicious.
maybe she DID have a strong odor. it's (remotely) possible, but given the facts - unlikely, and when taken with his record of ALWAYS having strong odor detected - it gives one pause.
also, to correct a fallacy - we don't arrest DUI's for DRUNKENNESS. we arrest for impaired. and impaired, by driving standards is often significantly less than 'strong odor', "slurred speech" etc.
if all this guys bookings were .12 or so and up, and he always smelled a strong odor, that might be understandable...
but yes, generally speaking, if one consumes liquor to the point of being legally impaired, certain indicia will present - but it does not present to the same (extreme ) extent in all bookable/booked cases.
again, - suspicious not dispositive
You are still missing the point. It's not that a single description of a single indicator is written exactly the same. It's that they are all supposedly present and all exactly the same every single time. And, for the record, I see people all the time who were arrested but well under .08.
Let me put it this way. Would you expect an officer to arrest someone who had every other sign and indicia of alcohol use, but only a moderate odor of alcohol? I assume the answer is yes. I sure would. So, every once in a while, I should see from these officers* a report that says blooshot watery eyes, slurred speech, swaying while standing and a *moderate* odor of alcohol. But for certain cops, that just doesn't happen. It's always a strong odor. And, there is occassionally video which shows the person NOT to have been swaying. Still, the swaying is in there.
*I think it's obvious, but I'll re-iterate...this is not every officer.
The world will self-destruct in 5
4
3
2
1
I agree with you when you are right. This *is* a rare occurrence, but it's hardly suggestive of armageddon.
hth
:)
I remember a training session for local (rural) police that he did for me a decade or so ago when I was a local prosecutor. His final words of advice to the officers are ones that I have repeated several times when teaching P.O.S.T.:
"Do not lie, not even a little bit. Not even on something you consider unimportant. Because if I catch you in a lie I will guarantee two things. First, every case that has your name on it will go to trial. Period. Second, I will make it my mission in life to destroy your career."
I agree with him 100%. As a prosecutor, I want cops to be 100% honest, 100% of the time. It's not their job to "fudge" to "help" the case. It's my job, in seeking justice, to use the evidence I have, in whatever condition it is in, to prove a defendant guilty beyond a reasonable doubt.
If officers do their job--as Whit has so eloquently described it above--then I sleep better at night, both as a prosecutor and as a private citizen.
Balko and the rest of you using this tactic are engaged in a rather transparent rhetorical game. You want to associate "boilerplate" and "cut and paste" testimony with dishonest cops. Then you can avoid all the hard work of actually proving the cops are dishonest.
I do understand. The studies were done on machines provided by multiple manufacturers and working according to manufacturer specifications. Thus, if the "FORMULA" you are talking about is the manufacturer specification, then you are wrong. The number of points above and below the calibration curve are about the same.
If you mean that your particular agency knowingly miscalibrates its breath analyzers, then that's your agency policy. But it is not representative of the technology itself.
How?
Did the person spit out the 151 they had in their mouth prior to taking the Breathalyzer? Did you have someone compress the corpse's chest to get it to expel air? That's legal?
That is a prodigious amount of alcohol to have consumed.
Not necessarily, given that by no means all DUI drivers smell strongly of alcohol. (It is, of course, theoretically possible that a cop could only haul in such drivers on a DUI, but that's hardly the way to bet.)
And, in this case, given that the driver had no alcohol at all in her bloodstream, and the cop reported that her breath smelled strongly of alcohol, it's him and his department that's climbed up the tree, and is out on the limb, as long as we're playing Fun With Metaphors.
The problem with the standard boilerplate isn't a cop expressing the same observations the same way. That may not be good writing, by and large, but it's not dishonest -- the problem with it is that it's evidence (not, by any means, proof, in and of itself) of a lack of specific observation. The cop is supposed to observe and report, not invent. It would be extraordinary, indeed, if every arrestee had exactly the same characteristics.
If you actually believe that a law enforcement officer can notice the exact same characteristics, and all of the exact same characteristics, and all of the exact same characteristics to the same precise extent, each and every time they pull someone over for DUI (or even every time they arrest for DUI), and they have pulled over anywhere north of say 5 people for DUI, then you are frankly incompetent to sit on a jury.
As far as me being up a tree if the officer says each person he's ever pulled over for DUI all had a strong characteristic, no, I'm sorry, I would not be. Because a jury will never be full of people as gullible as you, and the claim sounds like insincere bullshit. Frankly, I love it when cops are that stupid as to try and cover up their mistakes.
I saw a reading close that. The guy was dead (after a fairly nasty traffic accident) but the BAC was .453.
it is hardly unheard of for a very practiced alcoholic. if it was ME, I'd be passed out, if not unconscious or dead.
The guy was driving a stolen car, too
Please, please tell me that instructor wasn't a Washington guy...
Because it was...
Although it wasn't as far as I know... a KENT GUY (Tm) (Cue: Almost Live)
Bleah. OK, so can you tell me it's a now-former instructor, at least???
No, he got his law degree and is now the District Attorney. But, hope springs eternal, because he put in to be the new judge.....