ABA Connection

New Test for DUI Defense

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Long a staple of many a general law practice, defending clients charged with drunken driving has evolved into a more complex and specialized field.

The changes track the ever-more sophisticated technology used to detect impaired drivers and a cultural shift that has raised the severity of punishment and imposed a stigma on those arrested.

More states now mandate license revocation, alcohol evaluation and treatment, and jail time or house arrest for a conviction for DUI, also known as driving under the influence. (In some jurisdictions, the offense is known as DWI, or driving while intoxicated.) As the stakes increase, defense attorneys need detailed knowledge of how Breathalyzers work, about the physiology of the human body, and about the intricacies of field sobriety tests, say lawyers who represent DUI defendants.

Prosecutors, too, are learning the science to present their cases and rebut defense attorneys’ challenges.

“The DUI bar today is much more specialized. Now, it’s all about physics, chemistry, biophysics–scientific evidence that most lawyers aren’t very good at naturally until they’re well-trained in it,” says Lawrence Taylor, principal of a Southern California DUI defense firm that bears his name.

In fact, attorneys who set foot in the courtroom before learning the science of DUI defense are committing malpractice, Taylor asserts.

Before the advent of complex breath, blood and field sobriety tests, DUI defense was similar to the defense of any criminal case, says Rod Frechette, an Albuquerque, N.M., defense attorney. Lawyers challenged the arresting officer’s probable cause for the traffic stop and arrest, the officer’s training in recognizing intoxication, and the police department’s chain of custody for physical evidence, Frechette says.

The increasing technical expertise now required of lawyers prompted the ABA recently to approve a certification program created by the National College for DUI Defense. The organization, based in Montgomery, Ala., trains lawyers in the science of DUI cases and teaches techniques for challenging the soundness of evidence.

Lives Saved, Lives Ruined

The changes in DUI laws and evidence were prompted in large part by evolving cultural attitudes about drinking and driving. In the early 1990s, Congress began conditioning states’ ability to get federal highway funds on implementation of various highway safety rules, among them lowering the drunken driving threshold.

All but a few states now set the legal blood-alcohol driving limit at .08 percent, 20 percent lower than the .10 standard that was common as recently as the late 1980s. Advocacy groups like Mothers Against Drunk Driving say tougher laws led to a decline in the rate of accidents involving drunken drivers for about 15 years (although the rate has recently begun to increase again). Some 1.5 million drivers were arrested for DUI in 2002, the latest year for which that figure is available, according to the National Center for Statistics and Analysis in Washington, D.C.

MADD spokeswoman Misty Moyse says the Dallas-based organization’s efforts have helped save some 275,000 lives, based on declining rates of drunken driving deaths, over its 25-year history. “We’re concerned about everybody’s right to drive on safe roads,” she says.

But Taylor believes the public’s rush to fix the country’s drunken driving problem has created what he calls a “DUI exception to the Constitution.” He argues that in as many as a third of all DUI arrests, the driver is innocent of the charge.

He notes the stigma of merely being arrested for DUI can be severe. The defendant may face loss of a job, loss of status in the community and even loss of child custody if in the midst of a divorce or custody fight.

“I had a client who committed suicide, and his case had not even been resolved. Families are broken up, careers are destroyed. I hate to call it a modern witch-hunt, but things are really quite bleak,” Taylor says.

Attorney Bruce Dorner sees the issue, too, but from both sides. Dorner, whose practice is in Londonderry, N.H., is a former police officer who used to arrest his share of drunken drivers. Now he’s a lawyer who often defends them.

“I know what it is to watch people weaving all over the road and then get sick in the back of your cruiser and still you have to go to court and explain in detail why you arrested them for DUI,” Dorner says.

But Dorner says he’s also sensitive to civil rights issues such as due process and proper procedure. He says that in the past 10 years, officers’ training has greatly improved, and they are now more consistent and accountable in applying the law.

Yet, he says, in his state, which is mostly rural, the mandatory 90-day license suspension can be a hardship on families when the breadwinner cannot use the car to get to work. “Yes, there needs to be punishment, but taking the license for 90 days effectively means a whole family won’t have food on the table,” says Dorner, who advocates a to-and-from-work license that other states allow for first offenders.

To regain a driver’s license, a first offender in New Hampshire is required to undergo an alcohol evaluation and a mandatory drinking education course. A second offense brings a mandatory seven-day jail sentence and another seven days of inpatient alcohol treatment. MADD also expresses concern about sentences, but says they often aren’t stiff enough for repeat offenders. While some states have increased penalties, Moyse says, others have a revolving jailhouse door for repeat offenders.

Under the federal Transportation Equity Act for the 21st Century, states receive more federal money if they impose the following penalties for repeat offenders who have more than one DUI offense in five years:

• A minimum one-year license suspension.

• Impoundment or immobilization of the offender’s vehicle, or installation of a vehicle ignition lock that requires the driver to blow into a tube to prove sobriety before the car will start.

• Mandatory alcohol evaluation and treatment as appropriate.

• A mandatory minimum jail sentence.

Currently, 38 states plus the District of Columbia have laws in accord with the federal standard. In addition, 37 states mandate that even first-time offenders receive mandatory alcohol evaluations and participate in some sort of required alcohol awareness program.

The Cocktail Question

DUI defense attorneys say they are often asked what someone should do if stopped for DUI.

First, know the jurisdiction, Frechette says. If there are no automatic consequences for refusing a field sobriety test, there is nothing to gain by taking one.

Taylor says police officers will often ask what he calls the “cocktail question”: Have you been drinking tonight? Typically a driver will say, “Just one or two cocktails with dinner, officer.” It is at this point that the officer decides to arrest the driver, Taylor says.

Attempting the field sobriety tests can only hurt the driver now, no matter how well the driver thinks he or she can do.

Taylor advises drivers to be polite and not argue with the officer. Ask for an attorney, he says, and don’t answer questions.

If you get arrested and you’re sure your blood-alcohol content is under .08, take a blood test. If you’re not sure, take the breath test, Taylor says. Blood tests are harder to refute than breath tests.

Of course, not everyone arrested for DUI follows those recommendations. Police gather the evidence, and then it’s up to the defense attorneys to assess its reliability. Dorner says his experience as a police officer guides the approach he takes in defending his clients. “I focus on not directly attacking the police officer. It annoys the judge and offends the department. I attack the evidence the medical tests, whether the driver was wearing high heels [for the sobriety test], that sort of thing,” Dorner says.

For their part, prosecutors say the increasing reliance on technology and flaws in drunken driving tests obscure the real issue: public safety. They point to the statistics: In 2003, more than 17,000 people died in alcohol-related traffic accidents and about 275,000 were injured, according to the National Center for Statistics and Analysis.

At the time of arrest, nearly every drunken driver thinks it’s OK to drive after a few drinks, says Deputy District Attorney Alana Mathews-Davis, who prosecutes DUI offenses in Sacramento, Calif. “All injury accidents involving alcohol are probably [caused by] people who thought they were not too drunk to drive.”

Convincing juries that flawed measurements lead to false results is dishonest when common sense indicates the driver was in fact intoxicated, Mathews-Davis says. “Instead of raising reasonable doubt, some defense attorneys raise reasonable distractions,” she says.

Dorner, though, says it’s his responsibility to test the evidence. “At the end of the day, the prosecutors and the defense lawyers each have a job to do. It can be done civilly and with mutual respect.”

Looking for Clues

Whether attacking the evidence or supporting it, attorneys must have an understanding of it. The National Highway Traffic Safety Administration, an arm of the Transportation Department, has adopted three standard field sobriety tests. Some states now use the NHTSA tests, while others allow police officers to use whatever tests they see fit to measure whether someone stopped for suspicion of DUI is intoxicated.

The first of the NHTSA tests is horizontal gaze nystagmus. In this test, officers ask drivers to follow a penlight or other object from side to side with their eyes. Scientific evidence suggests that intoxicated people exhibit jumpy eye movements in attempting to follow a solid object from one side of their field of vision to the other and back. This effect has often been described as “marbles on sandpaper” as opposed to the “marbles on glass” effect seen in the eyes of sober drivers.

The second test requires drivers to stand with one foot directly in front of the other and walk heel to toe for a given number of steps, pivot on a foot as the officer directs, and walk back the same way. Drivers must keep their arms down at their sides, must not leave a gap of more than six inches between heel and toe, and must walk in a straight line.

The third test requires the driver to stand on one leg, with the other bent at 90 degrees, and hold that position without swaying for a period of time specified by the officer, such as 30 seconds. Often, the driver will be asked to count off the 30 seconds.

Officers administering the tests are taught to watch for signs of imbalance, called clues, such as holding the arms out to each side while walking the line or standing on one foot, or failing to follow directions. A driver who scores four to six clues on the tests is deemed to be intoxicated under NHTSA standards.

Other field sobriety tests commonly used in states that do not require the NHTSA tests include reciting the alphabet forward from a letter chosen by the officer, stopping at another specified letter, or counting backward from a given number to another. Any hesitation or deviation means the driver has scored a clue.

Before asking drivers to perform any of the tests, officers should ask whether they have any physical impairments that prevent them from performing, Frechette says, adding that many officers fail to do so. Officers should also be careful about asking drivers with certain clothing, such as a woman wearing high heels, to perform the walking and one-leg stand tests.

If police officers fail to consider the physical abilities of the driver, the charges could be dismissed. In a recent North Carolina case, a judge threw out DUI charges against a woman who failed the walk-and-turn and the one-foot-stand field sobriety tests because she was wearing stiletto heels. (See “In These Shoes?” Obiter Dicta, January 2005 ABA Journal, page 74.)

Frechette says that officers, and sometimes courts, tend to rely too much on field sobriety tests. The determination of whether a driver has passed or failed is subjective, often depending on how much training the officer has received, how carefully the officer observes the driver, and how capably the driver can perform the tests when sober. Some of the physical skills required for the tests far surpass the physical requirements of driving a car, and they are not a good indicator of sobriety in those with physical impairments, Frechette says.

Other factors play a key role, including whether the driver understands English, is nervous, or is taking the tests when it is dark outside. “Field sobriety tests are not about impairment. The [police instruction] manuals talk about the percent likelihood of impairment from failure of the tests. Failing does not automatically mean you’re drunk,” Frechette says.

Taylor says police officers often have decided to make an arrest by the time they ask the driver to take a field sobriety test. In many jurisdictions, he says, drivers can refuse to take the test without automatic consequences unless the driver is underage.

Breath of Foul Air

But in most jurisdictions, drivers who refuse breath tests face automatic license suspension. In addition, some states now distribute portable Breathalyzer machines to officers on patrol. In most jurisdictions, the results of the portable breath tests are not admissible in court. Rather, the portable machine is used to find probable cause to arrest drivers and take them to the police station for a more sophisticated breath test, or to a hospital for a blood test.

But that’s changing, Taylor says, as more states allow the results of the roadside breath test to be considered evidence of intoxicated driving. However, he says, roadside test machines are unreliable, difficult to use and often improperly calibrated by officers. Many environmental factors can influence the tests, he adds, including carbon monoxide from passing vehicles.

Yet, the very unreliability that causes false positives also makes roadside breath tests easier to refute in court, Taylor says.

The two most often used brands of nonportable breath tests are the Intoxilyzer 5000, made by a company based in Owensboro, Ky., and the Intoximeter, made by a St. Louis company. Some state statutes specify which machine authorities should use, and most states specify how often the machines should be calibrated. The Intoxilyzer 5000 is the newer and increasingly more common model.

Many defense practitioners see problems with both types of breath machines. Both are designed to measure the amount of certain chemicals in the subject’s breath. The chemicals are found in consumable alcohol, but also are present in industrial chemicals and certain nonintoxicating over-the-counter medications. They also may appear when the subject suffers from illnesses such as diabetes, acid reflux disease or certain cancers. Even gasoline containing ethyl alcohol on a driver’s clothes or hands can alter the result. These factors can easily cause a driver to score a false positive, Frechette says.

In a 2004 Illinois case, the state’s highest court threw out the summary license suspension of a driver who took medication for acid reflux disease. Illinois, like most states, requires drivers to be observed for 20 minutes after arrival at the police station before the test is administered. If the driver regurgitates during that 20 minutes, the test will give a false reading. The court said that even “silent” regurgitation, such as an acid reflux episode that the officer cannot see, negates the results of the breath test. People v. Bonutti, No. 96218.

Courts in Michigan also have addressed that issue in two recent unpublished opinions, which nevertheless upheld the drivers’ convictions on other grounds.

The waiting period that favored the defendant in the Illinois case can work both for and against drivers. Blood-alcohol content may continue to rise after an individual stops drinking as the alcohol is absorbed into the bloodstream. If a person goes only slightly over the .08 threshold, the defense attorney can sometimes successfully argue that the person’s blood-alcohol content a half-hour earlier was below the threshold. If the driver was near his ultimate destination, the argument can be made that he would have safely reached the destination before his blood-alcohol rose to an illegal level.

“Remember, merely drinking and driving is not illegal for an adult. Driving with a blood-alcohol level of .08 or above is illegal,” Taylor says.

Taylor notes that prosecutors sometimes argue the reverse that even though a driver’s breath test was below the legal limit, delays in administering the test allowed his body to metabolize some of the alcohol. Thus, prosecutors argue, drivers who score .07 a few hours after being arrested must have been over the legal limit when they were pulled over.

Dorner says at least one police jurisdiction in his area has stopped using Breathalyzers. The shift came after a demonstration that was supposed to show judges how effective breath tests were. In a controlled situation, each judge was given several alcoholic drinks and then asked to blow into the machine. One judge who drank until he was visibly impaired nevertheless scored 0.0 on the machine, even after several tries. That police department now relies solely on blood tests, according to Dorner.

But even blood tests are fallible. They’re based on a scientific formula that uses the average-sized person to determine at what concentration of blood-alcohol drivers should be considered intoxicated, Frechette says. The problem is that few people are average-sized.

In addition, people absorb alcohol into the bloodstream at different rates depending on metabolism, size, weight, health and food consumption, he says.

“Take 10 people in a bar, and give each a pint of vodka to chug,” Frechette says. “Some of those people will have absorbed it all in 20 minutes. For some, it will take six hours. The mean is one-and-a-half hours. In one hour, one of those people will have a BAC of .05, one will have a .27 and the mean will be .16. We don’t [try to] do justice by estimates and averages in this country, except when it comes to drunken driving.”


"New Test for DUI Defense," February 2005, page 34, should have stated drivers walking heel-to-toe in a standard field sobriety test can't have more than a half-inch between heel and toe. The Journal regrets the error.

Margaret Graham Tebo, a lawyer, is a senior writer for the ABA Journal.

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