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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.

Richard A. (mail):
I've heard of a similar instance here in New Jersey. We need a return to personal liability for police officers. A character like this should be in danger of losing everything he owns.
7.7.2008 11:21pm
30yearProf:
The highlight of my short prosecution career was nailing a cop for false official statement and then perjury in the cover up.
7.7.2008 11:51pm
theobromophile (www):
Possibility #3: she was exhausted.

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.
7.7.2008 11:58pm
John Neff:
We had a public intoxication case like that and it turned out the man had been given the wrong prescription. Fortunately the dosage was low enough that there was no serious harm. It was probably a good thing that he attracted the attention of the police.
7.7.2008 11:58pm
George Weiss (mail) (www):
this doesn't bother me much. if the guy says he saw signs of drunkenness and she wouldn't take the test...he had probable cause.

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.
7.8.2008 12:04am
cjwynes (mail):
Well it says the blood test came back with 0.0 on the BAC, but it doesn't say whether they tested her for the presence of various other drugs. Maybe she was high on marijuana?
7.8.2008 12:04am
wb (mail):
Possibility #3: she was exhausted.

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.
7.8.2008 12:14am
expat lumberjack (mail):
weiss and wynes make comparable points: had there been no other test, the prosecutor should have exercised her discretion to not prosecute; had there been a further drug test that revealed the presence of other, non-alcoholic drugs, the prosecutor should be lauded, given a laurel wreath, and the key to the kingdom.
7.8.2008 12:14am
Cornellian (mail):
Well it says the blood test came back with 0.0 on the BAC, but it doesn't say whether they tested her for the presence of various other drugs. Maybe she was high on marijuana?

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."
7.8.2008 12:18am
theobromophile (www):
wb - I'm a girl. :) (That might explain why I got a written warning, even though it was 3:30 am, two hours west of Little Rock, and I half-coherently told the cop that I was heading there to see my best friend. Guys may not always be so fortunate.)
7.8.2008 12:26am
PhanTom:
I've defended a DUI or two in Colorado.

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
7.8.2008 12:33am
Redlands (mail):
These kinds of posts drive me nuts. You want to speculate on the facts, fine. It makes for nice arguments, but rarely accurate conclusions. But doesn't it make more sense to wait until lab results on a blood draw are revealed? If you want to know how many drugs can cause the same objective symptoms as alcohol intoxication, just ask and I'll give you a quick run-down.
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.
7.8.2008 12:57am
A. Zarkov (mail):
"Balko reports, you decide."

A no brainer: the cop is lying unless there is some non-alcoholic thing that makes your breath smell like alcohol.
7.8.2008 12:58am
Thomas_Holsinger:
I had a client who couldn't walk straight due to all the metal in his legs, both that holding them together and pieces of the jeep he was riding in when it hit a mine in Vietnam, and who had a medical condition which gave him a lisp and other speech problems when he had too much sugar in him.

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.
7.8.2008 1:05am
Thomas_Holsinger:
oops, preview is my friend. She had driven it to the hospital the day before my client was arrested, and drove home with her baby the morning after his arrest.
7.8.2008 1:07am
who cares?:
Why is it that pro-defense types latch onto this type of thing as a "gotcha"? At worst, it is a police officer who used boilerplate to try to get a DUI. Bad scenario - absolutely. This poor woman had to submit to FSTs, and take maybe up to two hours (absolute long end for this process I am guessing) to sort through this. Not the worst thing in the world - I've spent more time than that in lines.

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.
7.8.2008 1:15am
George Weiss (mail) (www):

a cop who maybe tells a lie to catch a person who has probably committed a crime or two in their lives anyways


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
7.8.2008 1:28am
Richard A. (mail):
redlands: The body is converting fats into energy all the time. At any given time we get energy from a mix of sugar and fat. Heavy fat burning may occur in extreme circumstances, such as at the end of a marathon, but driving a car is unlikely to induce it.
Maybe if it didn't have power steering ...
7.8.2008 1:38am
chuckc (mail):
My only experience at Jury Duty was a DUI case with video but no audio. During deliberations, I attempted to perform the field sobriety tests as described by the arresting officer.
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.
7.8.2008 2:04am
Fub:
theobromophile wrote at 7.7.2008 11:26pm:
wb - I'm a girl. :) (That might explain why I got a written warning, even though it was 3:30 am, two hours west of Little Rock, and I half-coherently told the cop that I was heading there to see my best friend. Guys may not always be so fortunate.)
I think you meant east of LR.

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.
7.8.2008 2:48am
theobromophile (www):
Sorry, AK-Texas. That I blame on bar-study brain death.

I'm still a girl, though. Contrary to popular belief around here, apparently.
7.8.2008 3:08am
Fub:
Redlands wrote at 7.7.2008 11:57pm:
These kinds of posts drive me nuts. You want to speculate on the facts, fine. It makes for nice arguments, but rarely accurate conclusions. But doesn't it make more sense to wait until lab results on a blood draw are revealed?
I don't understand what lab test we should wait for. Prof. Adler's second sentence in the original article above was:
Her blood test came back 0.0, ...
7.8.2008 3:18am
Robbo (mail):
Redlands: "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."

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]
7.8.2008 5:00am
Public_Defender (mail):

a cop who maybe tells a lie to catch a person who has probably committed a crime or two in their lives anyways


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.
7.8.2008 5:53am
TDPerkins (mail):

At worst, it is a police officer who used boilerplate to try to get a DUI


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.


"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."


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.
7.8.2008 6:18am
AnneS:
Just because whocares deserves to be piled on some more, may I remark that I hope he gets the experience very soon of having one of the cops who "maybe [told] a lie to catch a person who has probably committed a crime or two in their lives anyways" be exposed in one of his cases. Then he will see how not only that case goes up in smoke, but how every single case that relies on that officer's word in the future will need to be dropped and how defense attorneys will darn near give themselves coronaries racing to the courthouse to challenge past convictions that relied on the dishonest cop's word. This happens with some regularity in my neck of the words - you can imagine how fun and harmless the prosecutors and the judges find it. Oh, and don't forget what it does to your jury pool.

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.
7.8.2008 7:30am
Federal Dog:
"if the guy says he saw signs of drunkenness and she wouldn't take the test...he had probable cause."


So as long as the cop ritually recites DWI boilerplate the bust is good?

He said he smelled alcohol on her breath. Really?
7.8.2008 7:40am
BruceM (mail) (www):
If the cop says a suspect has "glassy eyes" and "slurred speach" and "seems unsteady" they will be charged andlikely found guilty of DWI, even if the intoxicant is unknown - doesn't have to be alcohol, it can be sudafed.

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.
7.8.2008 8:02am
Prosecutorial Indiscretion:
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.


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.
7.8.2008 8:41am
Happyshooter:
During my service as an MP I had a woman driver who smelled of alcohol and failed the FST. I did not have a PBT so we took her in.

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.
7.8.2008 8:59am
Benjamin Davis (mail):
Also, please note that diabetics suffering from too low or high blood sugar (can't remember whether it is one or the other) can act like they are intoxicated. That has happened too.
Best,
Ben
7.8.2008 9:21am
Mordecai:
Richard A:

"...driving a car is unlikely to induce it."

But a strict "carb diet" or uncontrolled diabetes will. Redlands scores.
7.8.2008 9:29am
Oren:
At worst, it is a police officer who used boilerplate to try to get a DUI.
Yes, at worst an officer lied about a material fact in an investigation. He is a disgrace to his badge and his oath.
7.8.2008 9:45am
Andrew J. Lazarus (mail):
I failed an FST stone cold sober. (One drink three hours previous.) It was cold and raining and I'm, frankly, naturally pretty clumsy.

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?)
7.8.2008 9:46am
Bob_R (mail):
I have to laugh at how well-rehearsed the objections to "boilerplate" police reports are. Does that fact that your arguments are ritualized prove that you are lying?

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....
7.8.2008 10:02am
Bob from Ohio (mail):
25 years ago I interned at a small muni prosecutor's office. Even then I noticed DWI reports always said "stong odor of alcohol on or about their person". Glad to see nothing has changed.

If it was a mild odor or a medium odor, can there not still be probable cause?
7.8.2008 10:02am
Pashley (mail):
This probably doesn't warrant posting, but the BAC evidence is obtained after the stop, and wouldn't be determinative in any event. If the suspect acts intoxicated or incoherent, for the public safety you want the suspect approached, roadside tested, and maybe then arrested. BAC is one of many reasons why the suspect may have been driving poorly, but its just one, and the DUI statue covers impairment and influence to other substances.

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.
7.8.2008 10:06am
just a country lawyer:
it's boilerplate. cops are trained to write up their DUI reports like this. i have seen this dozens of times.
7.8.2008 10:07am
Marvin (mail) (www):
This is a situation where a dashboard camera would be valuable.
7.8.2008 10:11am
Patterico (mail) (www):
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.


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.
7.8.2008 10:12am
AnneS:
It's not the fact that the terminology is standardized that is the problem. If it were merely a matter of a checklist that provided a menu of common factual observations that the officer could select from based on what he actually observed, I doubt anyone would object. It's the fact that the probable cause statement seems to be cut and pasted in its entirety for every DWI arrest, regardless of what was actually observed. It's fine if the standard language is "odor of alcohol emitting from breath" rather than "I smelled alcohol on her breath" or some other turn of phrase. It's not fine if the officer includes "odor of alcohol emitting from breath" as part of his standard recitation of oberved facts when he did not, in fact, observe or perceive an odor of alcohol emitting from the subject's breath.

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.
7.8.2008 10:13am
Bored Lawyer:
It seems that the posters' humor/sarcasm detector is a bit rusty this morning. I took the original quote to be sarcasm, not serious:


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
7.8.2008 10:20am
Bob_R (mail):
AnnS-

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.
7.8.2008 10:28am
Thatguy (mail):
Of course police are going to lie to say they observed "slurred speech, odor of alcohol", etc... there's aboslutely no reason for them not to. The 'evidence' is transient, and it's the cops word against the supposed criminal. A modern police force is essentially an arm of the city tax collector anyway. Every cop knows to put every so-called indicator of DWI on every sheet just to cover their ass, and make some money for the city.
7.8.2008 10:30am
libarbarian (mail):
Stop making excuses for this piggy.

He's probably just a liar who was looking to arrest someone he knew was not drunk to satisfy his quota.
7.8.2008 10:30am
William Spieler (mail) (www):
I'll note something missing in this thread so far:

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.
7.8.2008 10:34am
Redlands (mail):
Fub, Robbo, you're relying on the wrong test result. The 0.0% BA results was for that, Blood Alcohol. It's not the same test. A different test has to be done to determine if a controlled substance was in the system. In 26 years of criminal trial practice I've seen plenty of DUI cases successfully prosecuted with 0.0% BA because the driver was DUI on drugs. On the other hand, I've seen plenty of other 0.0% BA cases rejected out of hand because the result, combined with other evidence, demonstrated that prosecution was not justified.
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."
7.8.2008 10:37am
Visitor Again:
On the consequences of police lying, it's not merely the credibility of the particular lying officer that goes down the drain. Moreover, it's not only police credibility in general that suffers.

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.
7.8.2008 10:38am
theobromophile (www):
Also, please note that diabetics suffering from too low or high blood sugar (can't remember whether it is one or the other) can act like they are intoxicated. That has happened too.
Best,
Ben

High, I'm guessing. I have very low blood sugar and am only subject to random bouts of complete flakiness, not pseudo-inebriation.
7.8.2008 10:45am
AnneS:
BobR - I suggest you reread what I wrote. The use of standard terminology or word choice to describe commonly observed facts is not the issue. The use of cut-and-paste statements of facts to justify probable cause for a certain type of arrest without regard to whether those facts were actually observed in a given arrest is inappropriate. Period.
7.8.2008 10:58am
William Oliver (mail) (www):
Well, I gotta tell my story. When I was in medical school, a couple of residents stopped a couple of cops who were kicking some homeless guy practially to death in front of the local hospital in full view of the ER staff. The residents were, of course, arrested for "obstructing" the police in their beating (though eventually all charges were dropped), and a low-grade war broke out between the cops and the medical folk in the town.

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.
7.8.2008 11:02am
Alan Suplvida (mail):
http://fieldsobrietytest.info/raw.html#graph

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! "
7.8.2008 11:03am
Dave N (mail):
One other thing germane to alcohol tests not mentioned by anyone is the burnoff rate of alcohol in the system.

(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.
7.8.2008 11:09am
Don Miller (mail) (www):
This reminds me of a story I heard on the radio this morning.

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.
7.8.2008 11:16am
Virginia:
I got pulled over on suspicion of drunk driving around noon on a weekday after making a legal U-turn in a car without power steering. The officer said I was "steering erratically." Slow day on patrol, I guess.
7.8.2008 11:31am
William Oliver (mail) (www):
"Alcohol then begins to "burnoff"--at a fairly standard rate of approximately 0.02% per hour.

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.
7.8.2008 11:44am
SeaDrive:


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.
7.8.2008 11:47am
Fub:
Patterico wrote at 7.8.2008 9:12am:
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.
So maybe it's all a scam by an evil defense attorney, willing to put his wife in jeopardy of a felony conviction just to mess with whatever random cop happened to stop her that night. His wife might be either equally evil or dumb as a post to go along with it. Maybe the evil defense attorney beat her into submission so she'd go along.
I'm not saying this happened.
I'm not saying that Squires beat his wife either.
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.
It could also be *impossible* if the incident happened just the way the Phoenix New Times reported that it happened.

The Phoenix New Times article (linked by Radley Balko) stated:
The truck, after all, was registered to Jason Squires. And when Gonzalez began questioning Heather, Jason immediately identified himself from the back seat, as Gonzalez's report confirms.

Gonzalez wrote in the report that he did not recognize Squires for quite some time. In fact, when Squires showed his bar card to verify that he's an attorney, Gonzalez wrote that Squires was attempting to claim he worked for the county attorney.
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 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.
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!
7.8.2008 11:53am
AngelSong (mail):
Ya know, I'm not sure Patterico's theory is all so far-fetched. It would certainly help if there's more history than just the one appearance, but I could see an attorney cooking up an evil plot (insert sound of maniacal laughter) to get back at / even with a law enforcement officer. In fact, one name immediately springs to mind, and interestingly enough, it's a name that appears with great frequency on Patterico's blog. Could be a coincidence perhaps? Good times all...
7.8.2008 12:17pm
PC:
Ya know, I'm not sure Patterico's theory is all so far-fetched. It would certainly help if there's more history than just the one appearance, but I could see an attorney cooking up an evil plot (insert sound of maniacal laughter) to get back at / even with a law enforcement officer.


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.
7.8.2008 12:27pm
AngelSong (mail):
Hmmmm I don't know. IF, and of course that's the big if, he's the kind of lawyer that would conceive and execute such a plot, I wouldn't be completely stunned that the wife might cooperate. After all, if she was drunk, the worst she was facing was the hassle of an arrest -- and her husband is a DUI attorney who will be quite capable of filing a lawsuit against the officer as well (which is his intention). Did you read the description of the previous DUI trial in the NYT article? Although I certainly don't presume to know for sure one way or the other, I don't think the idea is any more absurd than some of the other schemes we've seen / heard about lately...
7.8.2008 12:54pm
Smokey:
Patterico said
…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.
OK, can I speculate, too?

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.
7.8.2008 1:05pm
Nick P.:
you can't fake horizontal (or vertical) nystagmus.

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.
7.8.2008 1:09pm
C Smith (mail):
"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 ?"

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.
7.8.2008 1:16pm
hattio1:
I believe it was BobR who was defending the "cut and paste" observations of signs of intoxication. I will try to make Anne's point a little clearer. It's not that the obeservations are the same...it's that they are EXACTLY the same every time. If EVERY driver who is pulled over for DUI all have a strong odor of alcohol, what does that say? The guy who registered a 0.32 had a strong odor of alcohol...as did the guy who registered a 0.032. I'm sorry if ten times the alcohol makes no difference on the strength of the odor...the cop is lying.

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.
7.8.2008 1:18pm
Malvolio:
A no brainer: the cop is lying unless there is some non-alcoholic thing that makes your breath smell like alcohol.
Ketoacidosis. Common in untreated Type I diabetes. You're disoriented and confused and you smell like sangria.
7.8.2008 1:28pm
Clint:
<blockquote>
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.
7.8.2008 1:37pm
whit:

Ketoacidosis. Common in untreated Type I diabetes. You're disoriented and confused and you smell like sangria


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.
7.8.2008 1:38pm
Fub:
Nick P. wrote at 7.8.2008 12:09pm:
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.
Furthermore, nystagmus tests, like "odor of alcohol on breath", "glazed eyes", "slurred speech", and even a calibrated "breathalyzer test" depend entirely upon the honesty and integrity of the reporting cop. No evidence of honesty or integrity is usually preserved at the scene, except testimony of percipient witnesses. And judges rarely ever believe a citizen's testimony over a cop's. You can find words to the effect that "police have no reason to lie, but defendants have every reason to lie" in authorized collections of routine jury instructions.

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.
7.8.2008 1:38pm
whit:

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.



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.
7.8.2008 1:49pm
hattio1:
Whit,
Did the officer who pulled you over know you were an officer BEFORE he told you that you had passed the test?
7.8.2008 1:50pm
whit:

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
7.8.2008 1:53pm
Joel Rosenberg (mail) (www):
Of course Patterico's hypothetical is possible. It's also possible that Bond Gonzalez has a wife and child who had been kidnapped by space aliens, who told him -- via the Z-chip implanted in his tiny little skull -- that if he didn't bust this woman on a bogus charge, using the same boilerplate language in his arrest report that he puts in all his other arrest reports, and pretend not to recognize the lawyer who had embarrassed him in court recently, the wife and child would be fed to ferrets.

But it's not the way to bet. Either.
7.8.2008 1:59pm
hattio1:
Whit,
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.
7.8.2008 2:00pm
Gary McGath (www):
Some symptoms of intoxication can come from other causes, such as illness or fatigue. But if the cop claimed to detect a strong scent of alcohol when she hadn't been drinking anything, it really sounds as if he lied.
7.8.2008 2:04pm
whit:

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.
7.8.2008 2:05pm
whit:
To clarify... The BAC allows you to do what so many (people who don't understand analytical reasoning) think is impossible - prove a negative.

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
7.8.2008 2:08pm
Joel Rosenberg (mail) (www):
Assuming -- for the sake of argument -- that the initial stop was innocuous on the part of the cop, and that it was a setup, he got played for a patsy.

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 . . . .
7.8.2008 2:13pm
Alan Suplvida (mail):
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.

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.
7.8.2008 2:15pm
whit:

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.



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 :)
7.8.2008 2:17pm
whit:

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



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.
7.8.2008 2:20pm
Ex-Fed (mail) (www):
I've both prosecuted DUIs (as a student prosecutor) and defended them (recently), and I have noticed that, while my observations of how drunk people look and act have been quite diverse, officer descriptions of allegedly drunk people tend to be extremely similar.

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.
7.8.2008 2:21pm
whit:

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.



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.
7.8.2008 2:25pm
Nick P.:
Just out of curiosity, in the field sobriety test, does the officer specify which leg the suspect should stand on? I could stand on my left leg until the cows come home but am incapable of balancing for more than a few seconds on my right.
7.8.2008 2:25pm
whit:

Just out of curiosity, in the field sobriety test, does the officer specify which leg the suspect should stand on?


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.
7.8.2008 2:26pm
Joel Rosenberg (mail) (www):
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.

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.
7.8.2008 2:29pm
SeaLawyer:

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.


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.
7.8.2008 2:30pm
whit:

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.
7.8.2008 2:33pm
whit:

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.



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
7.8.2008 2:38pm
hattio1:
Whit,
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.
7.8.2008 2:51pm
Joel Rosenberg (mail) (www):
hattio1:

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.
7.8.2008 3:09pm
DG:
I dont think officers like whit are the exception. I think 95% of police are honest. However, that 5% of scumbags cause a disproportionate number of issues and the majority of cops are disinclined to stop them. Sometimes thats because they feel its none of their business and sometimes they are worried that they will need backup and it will never arrive.

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%.
7.8.2008 3:17pm
htom (mail):
Whether the rule is that cops are generally good or that cops are generally bad doesn't matter. Reality is that people are beginning to think that it is not safe to trust cops at all, because they know that if they've drawn a bad one, common or not, he (or she) won't be punished for being so.
7.8.2008 3:21pm
PC:
The difference in DUI cases is that there is ALWAYS an impartial witness available. The breathalyzer.


: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.
7.8.2008 3:25pm
William Oliver (mail) (www):
"The BAC via blood will usually read the same OR higher, but more power to you if you want to get one. "

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.
7.8.2008 3:40pm
whit:

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.
7.8.2008 3:57pm
whit:

Whether the rule is that cops are generally good or that cops are generally bad doesn't matter. Reality is that people are beginning to think that it is not safe to trust cops at all, because they know that if they've drawn a bad one, common or not, he (or she) won't be punished for being so.



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.
7.8.2008 3:59pm
whit:

I dont think officers like whit are the exception. I think 95% of police are honest. However, that 5% of scumbags cause a disproportionate number of issues and the majority of cops are disinclined to stop them. Sometimes thats because they feel its none of their business and sometimes they are worried that they will need backup and it will never arrive.



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.
7.8.2008 4:02pm
PC:
The issue is that the way they are designed is to UNDERestimate by FORMULA.


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.
7.8.2008 4:16pm
whit:

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.
7.8.2008 4:23pm
Mike 99 (mail):
What's missing here is any indication of at least reasonable suspicion, to say nothing of probable cause, for stopping the vehicle in the first place. Absent adequate grounds for stopping the vehicle, anything that took place thereafter would likely not be admissible.

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.
7.8.2008 4:25pm
Bob_R (mail):
"I believe it was BobR who was defending the "cut and paste" observations of signs of intoxication. I will try to make Anne's point a little clearer. It's not that the obeservations are the same...it's that they are EXACTLY the same every time. If EVERY driver who is pulled over for DUI all have a strong odor of alcohol, what does that say? The guy who registered a 0.32 had a strong odor of alcohol...as did the guy who registered a 0.032. I'm sorry if ten times the alcohol makes no difference on the strength of the odor...the cop is lying.

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.
7.8.2008 4:41pm
Joel Rosenberg (mail) (www):
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.

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.
7.8.2008 4:47pm
whit:

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.



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
7.8.2008 4:53pm
Bob_R (mail):
AnnS- I did misread a portion of one of your previous posts, and my response mischaracterized your position. Sorry,
7.8.2008 4:53pm
hattio1:
BobR,
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.
7.8.2008 4:56pm
hattio1:
Whit's agreeing with me.
The world will self-destruct in 5
4
3
2
1
7.8.2008 4:59pm
whit:
hattio, I have repeatedly explained this to you.

I agree with you when you are right. This *is* a rare occurrence, but it's hardly suggestive of armageddon.

hth

:)
7.8.2008 5:06pm
hattio1:
I will agree with you that everytime you've agreed with me I've been right....of course, your odds of agreeing with me in a situation where I'm right are pretty high...if you agree with me at all.
7.8.2008 5:09pm
Dave N (mail):
I know a very, very good DUI defense attorney (I don't drink and drive but I certainly recommend him to anyone in my jurisdiction who has a DUI). He is more than willing to help train police officers in doing their jobs better.

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.
7.8.2008 5:27pm
Bob_R (mail):
Sorry, I get the point, but it's dumb. By your argument, someone who wrote "a strong odor of alcohol" each time is suspicious. Someone who cycles between that and "a distinctly noticeable aroma of spirits" less so, and if they throw in "a pronounced smell of distillation" every third time they must be above reproach. No - your point should not be the language but the uniformity of the symptoms - but of course, if the cop sits on the stand and says, "I don't remember pulling anyone in who didn't smell strongly of alcohol." that leaves you up a tree.

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.
7.8.2008 5:44pm
William Oliver (mail) (www):
"you are missing the point. The issue is that the way they are designed is to UNDERestimate by FORMULA"

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.
7.8.2008 5:52pm
SFC B (mail) (www):
.464 BAC?

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.
7.8.2008 6:00pm
Joel Rosenberg (mail) (www):
...but of course, if the cop sits on the stand and says, "I don't remember pulling anyone in who didn't smell strongly of alcohol." that leaves you up a tree.

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.
7.8.2008 6:02pm
hattio1:
BobR,
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.
7.8.2008 6:10pm
Dave N (mail):
SFC B,

I saw a reading close that. The guy was dead (after a fairly nasty traffic accident) but the BAC was .453.
7.8.2008 6:13pm
whit:
SFC B, iirc the LD50 for ethyl alcohol is .4 (or was it .5). regardless, it's a high #.

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
7.8.2008 6:15pm
Kirk:
whit,

Please, please tell me that instructor wasn't a Washington guy...
7.8.2008 6:43pm
whit:
Kirk, I must disobey your request, as polite as it was, and tell you that it WAS a WA guy.

Because it was...

Although it wasn't as far as I know... a KENT GUY (Tm) (Cue: Almost Live)
7.8.2008 6:47pm
Kirk:
whit,

Bleah. OK, so can you tell me it's a now-former instructor, at least???
7.8.2008 7:06pm
Joel Rosenberg (mail) (www):
Kirk: sure. He's now the chief. (Actually, I don't have the slightest idea. But such things have been known to happen....)
7.8.2008 7:19pm
hattio1:
Chief???
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.....
7.8.2008 7:27pm
Kirk:
Good grief! If I get picked up for public intoxication, it's you guys' fault!!!
7.8.2008 7:34pm
Bob_R (mail):
Hattio-
Well, I'm not surprised a lawyer like you would decide that I'm incompetent to sit on a jury. I'm a mathematician, and very few lawyers with your skills want to have someone who actually understands logic on a jury. You are pretending not to understand the distinction between the group of people the cop pulls over and the people the cop arrests. I assume (perhaps incorrectly) that you are being dishonest rather than stupid. An honest cop might decide only to bring in open and shut cases where the driver was falling down drunk. A dishonest cop might decide to lie and write up everyone he pulled over as a falling down drunk. They would write up essentially the same reports. Your failure (or refusal) to understand this distinction says nothing about cops (or mathematicians) but a lot about you.
7.8.2008 7:39pm
Thomas_Holsinger:
whit,

A law enforcement agency in a nearby county @ 25 years ago parked its breathalyzer over the fingerprint stand. An attorney visiting the station saw this, hauled out his film camera, took pictures and hawked copies plus his authenticating declaration to defense attorneys for $50 a pop. He took in several thousand dollars that way before the county DA convinced that agency to move the fingerprint station to another desk.

For those outside the biz, the wet wipes provided to remove fingerprint fluid stain use alcohol, so the air around a well-used fingerprint station sometimes has an non-trivial alcohol content.

Also, whit, I once got a chronically intoxicated client off because the DA did not have the wit to ask his expert a what-if about my guy having a 0.015 BAC upon waking up in the morning.
7.8.2008 7:47pm
whit:

Good grief! If I get picked up for public intoxication, it's you guys' fault!!!


Kirk, this is WA.

There IS no law against public intoxication. It's a civil right.
7.8.2008 7:49pm
whit:

A law enforcement agency in a nearby county @ 25 years ago parked its breathalyzer over the fingerprint stand. An attorney visiting the station saw this, hauled out his film camera, took pictures and hawked copies plus his authenticating declaration to defense attorneys for $50 a pop. He took in several thousand dollars that way before the county DA convinced that agency to move the fingerprint station to another desk.

For those outside the biz, the wet wipes provided to remove fingerprint fluid stain use alcohol, so the air around a well-used fingerprint station sometimes has an non-trivial alcohol content.

Also, whit, I once got a chronically intoxicated client off because the DA did not have the wit to ask his expert a what-if about my guy having a 0.015 BAC upon waking up in the morning.



except modern breathalyzer machines (maybe somebody still uses a 25 yr old one, but I doubt it,

...

SPECIFICALLY TEST AMBIENT (room air) for PRESENCE of alcohol. If any reading above a .000 is detected, the instrument invalidates the test.

this is why you don't let the guy "breathe into the tube" (or too near to it) when the ambient sensoring is going off.

like i said, this is the modern era. these instruments are VERY VERY reliable.

Ambient testing, zero'ing, internal calibration, etc. etc.
7.8.2008 7:52pm
hattio1:
BobR,
As I've said repeatedly, these officers arrest people even when the reading is BELOW .08. Someone who blows .08 is not "falling down drunk." Both Whit, from an officer's perspective, and I, from a defense attorney perspective, have said the same thing, there is no way a moderately experienced cop could make numerous arrests and have not just the same characteristics, but ALL the exact same characteristics to the exact same extent. To say otherwise, is either intentionally disingenuous, or you think that you know more about DUI's than defense attorney's AND cops put together. I won't say too much about mathmeticians, because all mathmeticians are not as egotistical as you. However, if you think that you know the possibility of DUI arrestees having ALL of the exact same characteristics, and to the exact same extent better than those who see DUI arrestees (including their audios and videos), then it doesn't speak well to your humility.

In short, I understand the difference between the set of people who are pulled over for being drunk and the set of people who are arrested. But the possibility of even the smaller set having the exact characteristics to the exact extent is so close to zero that the difference is trivial. And that's even assuming charitably, that you are ignoring my earlier comment that some of these same officers arrest well below .08, because you don't remember the comment rather than because you are incapable of seeing the logical implications of that comment.
7.8.2008 8:02pm
Kirk:
whit,

Does that mean you can't give me a free trip to the ER? :-)


(Just to clarify; my joke about getting drunk was in response to the "chief.. no, DA... no, judge" sequence.)
7.8.2008 8:23pm
Orlando Sun (mail):
When studies contradict my (vast) experience, I gotta call bull#$(#$.

If you had taken the time to review the link, you would know the "bull#$(#$" study is the one the government relies on to validate FST tests.

Do you really believe the government's validation of FSTs is BS?
How often have you testified to that in court?

I have NEVER had somebody fail nystagmus (6 cues) who blew under a .10. Never.

You appear not to have taken the time to follow the link. The other officers were personally trained by the scientist who invented the FST.
Were you personally trained by that scientist?
Who do you think does FSTs better, you, or experienced DUI officers personally trained by the scientist who invented the FST?

With 4 cues, I have seen as low as a .06
So, I realize my 'n' is only 500, but I'll rely on my 500 data points.


Is this a national policy proposal on your part? The nation should adopt your personal statistics? When will you publish your results?

Are you familiar with the concept of standardization? Do you know that the whole point of the STANDARDIZED FST is everyone is supposed to do the same test and get the same general result. If you could get anyone to print up your work, why would your differing results not simply prove that FSTs are unreliable -- since your study and theirs found different answers?
7.8.2008 9:09pm
Fub:
whit wrote at 7.8.2008 12:49pm:
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.
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.
I must respectfully disagree. Mouth alcohol can readily give a high reading, even with a volume triggered sample window. It's just a matter of getting enough alcohol into your mouth to keep a constant stream of vapor throughout the whole blow.

Wash a shot of alcohol based mouthwash around in your mouth real good. Even gargle it a bit, but don't swallow or spit. Then blow normally. Using 180 proof is a more sure shot than mouthwash because it creates more alcohol vapor, but the principle is the same.

On some IR units kerosene or gasoline will do the trick, and in fact I recall a DUI arrest (and ultimate acquittal) of a "fire eater" performer that made national news.

Cop honesty is the absolute sine qua non of good evidence in non-accident and non-witnessed DUI arrests. A corrupt cop can build a very nasty case if nobody except his victim is watching.

If the cop is honest, I agree that the breathalyzer is the innocent's best friend. But otherwise, it isn't.
7.8.2008 9:16pm
whit:

Who do you think does FSTs better, you, or experienced DUI officers personally trained by the scientist who invented the FST?



based on the #'s shown.

me

since (n=~500)

1) everybody that scored 6 cues was .10 and over
2) everybody that scored 4 cues (with 2 exceptions) was .08 and over...

I'll go with me.

math, y'know

Sorry, if that sounds arrogant, but that's my experience.
7.8.2008 9:40pm
whit:
fub, that's good info. Thanks!
7.8.2008 9:41pm
Dan Weber (www):
Sometimes cops do just make stuff up: World Net Daily Fortunately video evidence exists.
7.8.2008 11:11pm
Jmaie (mail):
High, I'm guessing. I have very low blood sugar and am only subject to random bouts of complete flakiness, not pseudo-inebriation.

Both. When a suspected diabetic not known to you exhibits such behavior, it can be very difficult to tell whether their blood sugar is too high or low. Give them orange juice because it may help and won't hurt.

And I believe you're a girl.
7.9.2008 2:09am
Visitor Again:
Sometimes cops do just make stuff up: World Net Daily Fortunately video evidence exists.

It's our friendly neighborhood police force, the LAPD, at work protecting and serving once again. The problem is that the police are caught lying only when videotape is available and when the existence of the tape is unknown to them at the time they testify--fortuities that seldom occur. As the defendant said in this case after it was dismissed, "If I didn't have the videotape, nobody would believe me." And if the lying officers had known of the tape's existence--as would be usual since prosecution discovey of defense evidence is permitted in California--they would have tailored their lies to match the tape.

About the same time this was reported, the LA Times also carried a story about two homicide detectives who, while interrogating a suspected gang member, indicated someone had ratted him out and showed him a six-pack photo id sheet with his photo circled bearing the handwritten statement of a 16-year-old girl stating that he was the perp. The sheet was a fabrication by the police. The officers did not bother to tell her that they'd falsely fingered her as a snitch and they did not bother to protect her in any way. A little while later the girl was murdered. It turned out a long time later that the gang member was taped making a phone call from the jail ordering his homies to get rid of the girl. But in the meantime, these officers arrested someone for the murder of the girl who was innocent; they pulled the same fake six-pack routine on him, too. He insisted on his innocence and was eventually cleared when a videotape of an HBO television show revealed he was attending an L.A. Dodgers game at the time of the murder of the girl.
7.9.2008 7:40am
William Oliver (mail) (www):
"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. "

Well, your instructor was correct. That's the difference between an "interview" and an "interrogation." Interrogation comes after you have already discovered the "truth" and are working for the confession or similar act of cooperation. That's why it's accepted practice for the interrogator to lie, present false evidence, etc. during the interrogation. The purpose is psychological coercion, not truthfinding.
7.9.2008 9:17am
Fub:
Visitor Again wrote at 7.9.2008 6:40am:
And if the lying officers had known of the tape's existence--as would be usual since prosecution discovey of defense evidence is permitted in California--they would have tailored their lies to match the tape.
That's why (successful) defense with such evidence typically uses it only as rebuttal evidence. You only have to declare and make available for discovery evidence that you anticipate producing in the case in chief.

Everybody knows that cops never lie, until they do lie. So you can't reasonably anticipate producing such evidence in the case in chief.
7.9.2008 10:56am
Curt Fischer:

First thing we were taught in breathalyzer school, however, was that alcohol is a colorless ODORLESS liquid. Alcohol has no odor.


I work regularly with 200-proof non-denatured punctilious anhydrous ethanol (that's alcohol as-pure-as-possible in layman's terms). It has an ODOR. The idea that it is odorless is wrong.

It's odor detection threshold might be well above the concentrations that are found in human breath, sure. Other "aromatic" compounds in liquors and other alcoholic beverages may easily mask any detectable ethanol odor, even if present, sure. But, absolutely pure ethanol, by itself, has a very noticeable, generally pleasant, floral odor.
7.9.2008 4:39pm
Tony181 (mail):

Another is the officer had a vendetta against the woman's husband -- a DWI defense attorney


Ha ha, this is great, drunk driving defense attorneys are the scum of the earth. Too bad the officer forgot to use his taser ;)
7.10.2008 2:02pm
Deoxy (mail):
Who do you think does FSTs better, you, or experienced DUI officers personally trained by the scientist who invented the FST?


based on the #'s shown.

me

since (n=~500)

1) everybody that scored 6 cues was .10 and over
2) everybody that scored 4 cues (with 2 exceptions) was .08 and over...

I'll go with me.

math, y'know

Sorry, if that sounds arrogant, but that's my experience.


Well, for YOU, that's great. What about for the other multi-thousands of cops performing FSTs? Since they are learning the method just shown to not work worth a darn, and I'm not likely to get YOU as the officer giving me an FST, I'll trust the study.

Perhaps you should take up the task of training FST giving, eh? I appreciate that you appear to be a very honest and ethical cop, but you are making huge assumptions that are not reasonable.

There's a reason even people who are squeeky clean and have never had a bad run-in with a cop are beginning to feel that cops aren't necessarily trustworthy.

Go read Balko's stuff for a while, then get back to me. Even if 99% of officers are honest, tell me how you could feel safe around them when so many can get away with so much?

Trusting a complete stranger not to completely screw the rest of my life (at essentially no cost to themselves) is not something sane people enjoy.
7.11.2008 1:47pm