Sunday, November 21, 2010

When the breath test contradicts the officer's observations

You only thought blowing under a .08 meant you wouldn't be arrested for DWI. You figured that once the result of that breath test came back the officer would admit his mistake and let you go about your business.

You thought wrong.

Mike Williams, rookie wide receiver for the Tampa Bay Buccaneers, thought wrong, too.

Early this past Friday morning, an officer with the Hillsborough County (FL) Sheriff's Office stopped Mr. Williams for speeding and weaving in traffic. The officer smelled alcohol on Mr. Williams' breath and noted he had glassy eyes. The officer determined, through a decidedly unscientific method, that Mr. Williams was intoxicated so he placed him under arrest and took him to the station where Mr. Williams agreed to submit a breath sample.

The results of that breath test, you ask? .065 and .061. Well below the legal limit in Florida.

Now, aside from the obvious question of how a "scientific instrument" can have two readings .04 .004 apart on two blows that were no more than two minutes apart (I can't imagine a scientist being too pleased with that result on a test), what does this say about the ability of an officer to detect an intoxicated driver using NHTSA's roadside coordination exercises?

These coordination exercises supposedly tell the officer when a suspected drunk driver has an alcohol concentration of .08 or higher. But did they in this case? The answer would appear to be a big fat negative. The officer based his arrest decision on Mr. Williams' driving, his appearance and his performance on the roadside exercises. He came to the conclusion that Mr. Williams had an alcohol concentration of .08 or higher while driving his car. His conclusion was wrong.

Of course the obvious conclusion is that Mr. Williams was intoxicated by something in addition to alcohol. So authorities ordered a urine test (now there's a scientifically accurate test for you). The only problem is that regardless of what shows up on that screening, there will be no evidence that whatever was in Mr. Williams' body (if anything) other than alcohol had any effect on his mental or physical faculties.

The legislature of Florida decided that a person is intoxicated with an alcohol concentration of .08 or higher. The decision was made by legislative fiat. There is no scientific evidence that any given level of any other substance will cause a person to lose the normal use of their mental or physical faculties. None. The results of the urine test will not tell a single person whether Mr. Williams was intoxicated or not.

What we have here is an officer who was convinced, based upon his observations, that Mr. Williams had an alcohol concentration of .08 or higher. The state's own breath test machine proved the officer wrong and so the officer must find some other way to justify his actions that night.

That's DWI enforcement for you.


Matt said...

I think you mean 0.004 apart, a 10 fold difference from what you actually wrote.

Houston DWI Attorney Paul B. Kennedy, said...

Oh, that pesky little math thing. Thanks for pointing it out.