Think long and hard about that second drink

Beginning yesterday, the State of Utah has enacted the strictest drunk driving laws in the country. From this day forward, anyone who causes the death of another by operating their car in a negligent manner with a blood alcohol concentration of .05 or higher will be charged with felony vehicular manslaughter.

Now I'm not going to sit here and tell you that it's okay to get drunk and go driving around town. I think that is something that we can all agree is a bad thing to do. But I do think we need to think of the consequences of lowering BAC levels and ramping up punishments.

If we look at things in a vacuum then we know that someone with any alcohol in their system is going to be impaired to one degree or another. But then we need to look at some other factors. What about the person talking on their cell phone or texting or tweeting or fiddling with the radio or talking with a passenger? What about that driver who is driving on very little sleep and is having trouble keeping their eyes open?

Distracted driving is far more prevalent that drunk driving in this country. And we see it every day on the highway or on the streets.

An alcohol concentration of .05 can be achieved by as little as two glasses or wine or two drinks with dinner. For most folks that's not even enough to get a buzz. Do you really want to move toward lowering the legal limit to that range?

Think of the number of folks you see running red lights, driving too fast, moving in and out of lanes, swerving and driving the wrong way during daylight hours. Do you really believe that each and every one of those folks are intoxicated?  But if those folks cause a fatality accident, they won't be subject to nearly the harsh punishment that a person who had two glasses of wine in his system would be.

And that just isn't right. It's an example of politicians picking the low-hanging fruit while looking for an issue to run on. Not everyone lives in a major city with public transportation options or Uber or the like. Not everyone reacts to alcohol in the same manner. We all know folks who are done for the evening after their second drink. But should everyone be judged on the same scale?

Finally, do we really need to look for new ways to charge folks with felony offenses? Are we trying to put more folks under government supervision?

The current batch of pseudo-scientific roadside exercises were devised back when the per se limit in most states was .10. NHTSA then declared - without conducting new research that the tests were good at predicting who had a BAC of greater than .08. What's the game now, Utah? If someone passes the tests are you then going to require a test to determine if their BAC is .05 or greater? If so, why even bother using the roadside exercises in the first place?

Yes, there are horrific accidents every day across this country caused by drivers who are well above the legal limit. Those are the cases that appear on the news. It's important to remember, however, that the vast majority of DWI arrests are based on speeding, failing to signal a lane change, weaving and other minor traffic offenses.

Utah's new DWI law is but the latest example of a solution searching for a problem.

Calls to lower the legal limit to .05

In the latest step in the never-ending quest to criminalize everything, the National Academies of Science, Engineering and Medicine have called to lower the legal limit for alcohol from .08 to .05. According to the Academy, impairment is present at a much lower level than the law accounts for.

The Academy also calls for mandatory ignition interlocks for all offenders for a period of at least 2 years. It also calls for limits on alcohol advertising and availability. The report calls for stricter measures to prevent people under the age of 21 from purchasing alcohol. The report also calls for more DWI courts and, seemingly as a throwaway, sobriety checkpoints.

For years the legal limit in most states in the US was .10. That was reduced to the current .08 during the Reagan years (so much for federalism). When the National Highway Traffic Safety Administration codified the modern standardized field sobriety tests, the science said that .10 was impaired and the battery of tests could help an officer to decide whether or not he thought a driver was over the limit or not.

When the limit was reduced in the 1980's the testing protocol remained the same because there was no new science to back up the new limit. Now we were told that this battery of tests could help an officer determine if a driver's alcohol concentration was above .08. The reduction in the limit amounted to roughly one drink.

Now, I'm not going to argue that drunk driving isn't a problem. I have always told clients, and prospective clients, that the best way to avoid a DWI arrest is not to drink and drive. Roughly a third of accident fatalities are the victims of a drunk driver. However, as anyone who practices criminal law knows, the vast majority of DWI arrests aren't the result of an accident. Most drivers arrested for DWI were speeding, failed to signal a lane change, swerved momentarily into another lane or had some equipment violation such as a burned out taillight or an expired registration sticker.

Lowering the limit from .08 to .05 is the equivalent of two drinks. This means that that third glass of wine could be the difference between sleeping in your own bed and staying at the Grey Bar Hilton on a Friday night.

The current battery of standardized field sobriety tests can't determine the difference between .05 and .08. Are we going to reduce probable cause for a DWI arrest to the smell of alcohol on a driver's breath?

The most troubling recommendation in the report is for the increased use of sobriety checkpoints. I guess the members of the Academy are unfamiliar with the 4th Amendment. Now I realize that the courts in some states have ignored the 4th Amendment and decided that there wasn't any need for probable cause for a search and seizure but thankfully that hasn't happened (yet) in Texas.

Sobriety checkpoints are a direct assault upon the right of the people to be free from unreasonable search and seizure. For every other criminal act, the police must have probable cause (or the nebulous reasonable suspicion) to stop a person. Sobriety checkpoints allow the police to stop folks who haven't done anything to warrant suspicion and arrest them.

And how are they going to function? Does every driver blow into a portable breath tester? Only the ones who have the odor of alcohol on their breath?  And what happens when a driver refuses to blow into the PBT? The results of a PBT aren't admissible in Texas, if someone blows over a certain amount are they immediately cuffed and taken to a testing facility? Are they asked to perform roadside sobriety tests on the spot?

This proposal would only increase the number of folks caught up in our criminal (in)justice system. That means more people being arrested, having to post bond, hiring attorneys and paying assorted legal fees and court costs. It also means more folks having criminal records. And all of this for behavior which is perfectly legal right now.

Reducing the number of drunk drivers on the roadways is a worthy goal. However, before we criminalize behavior that is now legal and subject many more drivers our criminal (in)justice system, there needs to be some science behind the proposal.

And the hits just keep coming

Well, that certainly didn't take long.

Already ankle deep in an evidence destruction scheme in Precinct 4, Harris County DA Devon Anderson has a new mess on her hands. And this time it has to do with drunk driving.

Dr. Fessessework Guale works at the Harris County Institute for Forensic Sciences, until very recently she was one of the managers in the toxicology department.

Dr. Guale was always a favorite expert witness for the state. She would take the stand and tell the jury how accurate and reliable blood alcohol testing was. She would then take out pen and paper and mystify the jury as she calculated what the defendant's blood alcohol concentration would have been at the time of driving. Nevermind that no one had ever bothered to test the defendant's metabolism or measure the time it takes alcohol to be absorbed into his or her system. Forget that the patron saint of blood alcohol testing, Dr. Kurt Dubowski, wrote that so-called retrograde extrapolation (guesstimation) was notoriously unreliable. Nope, nothing was going to stop Dr. Guale from getting on that stand and telling the jury that the defendant - beyond any doubt - was clearly intoxicated at the time of driving. Hell, she didn't even need to view the scene video or offense report - she just knew.

She also knew about killing cats in the name of science. She studied veterinary science back home in Ethiopia and did some serious experimentation on cats. Of the four published articles which she claims, only one has to do with toxicology. The others all have to do with animals.

But one field she might not have know quite so much about was toxicology. For years she took the stand and, under oath, told juries that she had a master's degree in toxicology. Now for some of the folks who ended up sitting on a jury, that was all they needed. If she has a post-graduate degree in toxicology then she probably knows what's she talking about, right?

Um, not so fast.

It turns out that Dr. Guale's master's degree from Oklahoma State is in some field called physiological sciences. On her statement of qualifications (which is submitted to the accreditation agency) she states she has a Masters of Science in Toxicology (just take a look below). Ooops. She claims toxicology is a sub-discipline of physiological science but that's debatable coming from her mouth.

"My training is in toxicology but the degree says physiological sciences, which is a big area which toxicology is a sub part of it. It's called a sub discipline." 
-- Dr. Fessessework Guale

Unfortunately that's not what the Oklahoma State University website says when you look up "physiological sciences." It appears that department is part of the school's Center for Veterinary Health Sciences.

The Department of Physiological Sciences at Oklahoma State University contributes substantially to the teaching, research and service components of the Center for Veterinary Health Sciences.

-- Oklahoma State University website

I believe that makes Dr. Guale a perjurer. Just how many cases over the years did she take the stand and lie about her educational background? Just how many times did she lie on her curriculum vitae about her educational background? Just how many times was her falsified CV sent to defense attorneys during discovery?

And if she was so willing to lie about her educational background, what else has she lied about? And since we now know she is a liar, can we, should we, believe anything she has said on the witness stand? For you see, it's not a question of counting up the lies to determine whether or not someone is trustworthy; it's a question of whether or not someone who has lied can ever be believed.

And now Devon Anderson says she's getting to bottom of it. And I'm sure she's in a hurry to do so. Apparently the DA's office has decided they will no longer use Dr. Guale as an expert witness. But will she remain employed with HCIFS? Even though she has lied continually about her academic qualifications, will she or the lab suffer any repercussions?

Every case in which Dr. Guale testified as to retrograde guesstimation needs to be re-examined. Every attorney who handled one of those cases should be notified. And, should we find out that anyone in the DA's office knew about Dr. Guale's lies before now, any convictions which relied on her testimony about blood alcohol concentration should be vacated. In fact, any case in which a defendant was convicted and Dr. Guale testified should be brought into question - particularly since the verdict form does not indicate under which theory of intoxication the jury convicted the accused.

Devon Anderson has shown herself to be largely incompetent in running the Harris County DA's Office. She is certainly not to be trusted. But what should we expect from a person who took charge of the office not through an election but through an appointment after her husband (who failed to disclose his medical condition during his campaign) died less than a year into his term?

  Dr. Fessessework Guale Statement of Qualifications by Paul B. Kennedy on Scribd

Just looking for an excuse to affirm

In 2012, Milton Kay was driving in Orange, Texas without wearing his seatbelt and without having a current registration sticker on his windshield. He was pulled over by Officer McDonald of the Orange Police Department.

While conducting the stop, Officer McDonald smelled the odor of an alcoholic beverage on Mr. Kay's breath and noticed that Mr. Kay was slurring his words.

So, of course, what started out as a routine traffic stop turned into a full-blown DWI investigation -- even without any evidence of impairment while driving. As (bad) luck would have it, Mr. Kay had two prior DWI convictions - one in 1989 and one in 2000 - that turned a routine traffic stop into a felony DWI arrest.

Section 724.012 of the Texas Transportation Code states that if a person with two or more prior DWI convictions is arrested for a DWI and refuses to provide a breath or blood sample, a police officer may require the motorist to submit to a blood draw. In case you didn't know it, when you walked away from the DPS office with your driver's license you told the state that it was okay from them to jab a needle in your arm if you declined to cooperate in a DWI investigation.

And you thought that Fourth Amendment thingie applied, didn't you?

Well, of course it didn't apply in Mr. Kay's case because his alcohol concentration was .024 - three times the legal limit.

At trial Mr. Kay argued that the blood draw was illegal because he didn't agree to it and because there was no showing by the state of exigent circumstances per McNeely. The trial court wasn't inclined to ignore a high blood test result so Mr. Kay's objections to the admissibility of the blood test results were denied. Mr. Kay was subsequently sentenced to 19 years in prison which, if I may editorialize, was absurd given the circumstances surrounding the arrest.

The 1st Court of Affirms Appeals in Houston then got there shot at the case. In Kay v. State, No. 01-13-00595-CR (Tex.App.--Houston [1st] 2014) Justice Rebecca Huddle pointed out that Mr. Kay never specifically mentioned that the blood draw violated his Fourth Amendment protection against unreasonable search and seizure, the Court affirmed the conviction and told Mr. Kay to enjoy his time in prison.

Here is the relevant portion from Mr. Kay's motion to suppress the blood test result...

[E]vidence in this case has been illegally obtained . . . in violation of the United States Constitution, the Texas Constitution, and Texas Statutory Laws . . . [T]he blood specimen was extracted from [Kay] without his permission and without a search warrant. Generally, tak[ing] of a blood sample is a search and seizure within the meaning of the Fourth Amendment to the United States Constitution . . . Article I, section 9 of the Texas Constitution requires that a search warrant be issued . . . In addition, Article 38.23 of the Texas Code of Criminal Procedure forbids any evidence obtained in violation of the law to be admitted against an accused. 

Let's see, Mr. Kay mentioned that the blood draw violated the US Constitution. He mentioned that it violated the Texas Constitution. He mentioned that a warrantless blood draw falls under the purview of the Fourth Amendment. He even cited the Texas Statutory Exclusionary Rule.

Yet, to the First Court of Appeals, that wasn't enough to invoke the protections of the Fourth Amendment and the McNeely case.

Just the other day I praised the legal reasoning of Marc Brown in suppressing some pretty damning evidence because the police violated the accused's Fourth Amendment rights. I wrote that Justice Brown made his decision not on the evidence that was in question, but, instead, on the way in which the evidence was gathered.

Well so much for that type of legal reasoning from Justice Huddle. Instead of looking at whether the evidence was obtained legally, she looked for any reason she could find to justify the trial court's decision to deny Mr. Kay's motion to suppress. What she found makes a mockery of her title of "Justice."

Feds seeking to lower legal limit to .05

The National Transportation Safety Board has decided that the per se limit for drunk driving should be lowered to .05. Such a move would lower the current legal limit by more than 33% - a staggering number.

The rationale is that there are too many folks dying on our roadways every year. The NTSB keeps saying there are more than 30,000 fatalities that are alcohol-related annually. The number is misleading because all it takes is for one person involved in the accident - regardless of whether that person is driving or at fault for the accident - to have alcohol in their system to qualify the accident as alcohol-related.

A study from the Insurance Institute of America projects highway deaths could be reduced by a little over 7,000 a year if the legal limit were reduced to .05. Now let's crunch some numbers. According to the IIA, traffic deaths would be reduced by less than 25% by reducing the legal limit by more than 33%. That, my friends, doesn't compute. What is shows is the diminishing utility of making DWI laws more severe. Their numbers make a poor case for lowering the limit in that you will be punishing far more people for a very modest reduction in lives lost.

If we are going to accept the premise that lowering the permissible alcohol concentration will reduce the number of deaths on the roads, then why not go all the way and institute a zero-tolerance policy? If a .08 concentration is bad then why stop at .05? If we are going to make the assumption that someone is "under the influence" at .05, won't they still be "under the influence" at .02?

Interestingly enough, both MADD and NHTSA have expressed their opposition to the proposed change. It's probably fair to infer that MADD is betting the public would turn against it if the laws were tightened further. Their focus now seems to be getting repeat offenders off the roads.

Are we looking at another push by the federal government to thumb its nose at the 10th Amendment and force the states to lower their per se limits or find their highway funds cut? Or will the states find themselves pressured to create a new offense of driving while impaired (or DWI Lite)?

There are already far too many traps for motorists. We need to be looking at ways to reduce the number of people who filter through the criminal (in)justice system. We don't need more folks under supervision or behind bars. We don't need more folks with convictions on their records.

What will become of the roadside DWI calisthenics? Will NHTSA authorize another pseudo-scientific attempt to "validate" these exercises for alcohol concentrations of below .08?

The problem with a per se limit is that it's a fiction. There are folks out there who lose the normal use of their mental or physical faculties after just one drink. There are others who can drink much more before the debilitating effects of alcohol take hold.

Now make no mistake about this, I want to keep drunk drivers off the roads. But I don't want to see more people cuffed and stuffed into the backs of police cars when they have done nothing wrong. I sure as hell don't want to see more forced blood draws -- though with the current backlogs we are experiencing, any more blood draws would come damn close to flooding the system.

The NTSB idea is a bad one - but that never stopped a legislator from picking up the ball and running with it. Now is the time to nip it in the bud.

Something's rotten up in Conroe

Texas DPS Standard Operating Guidelines for Technical Supervisors 

1.1 An official inspection by a Technical Supervisor can only be conducted at the evidential testing location. Each part of the inspection shall occur at the testing location and includes not only the instrument, but the associated equipment and the testing environment as a whole. 

     1.1.1 The capability of the instrument to detect and subtract the effect of acetone shall be tested. 

1.2 A complete inspection (1.1) shall be performed by a Technical Supervisor each time an instrument is placed into or returned to service at a testing location.

According to Chapter 37 of the Texas Administrative Code, for a breath test result to be admissible it must be conducted per the rules set out by the Texas Department of Public Safety. Should these procedures not be followed, the results of breath tests can be thrown out and machines can be taken out of service.

The DPS rules state that anytime a technical supervisor inspects a breath test machine, he or she must conduct a test to determine whether the machine is capable of detecting acetone. The rules state further that an inspection must be conducted every time a breath test machine is placed into service.

Well, up in Montgomery County, someone forgot to read the rules. According to a memo sent out to the local defense bar by the District Attorney's Office, acetone checks were not performed on breath test machines that were taken out of service and moved to another location.

Here is the text of Warren Diepraam's memo regarding the failure of technical supervisors to follow proper protocols:

It has recently been brought to our attention that the Intoxilyzer instruments in Montgomery County did not receive acetone checks when the devices were taken out of service and transferred to another location. This appears to be contrary to DPS guidelines. DPS informs us that because all instruments received acetone checks when placed back into service at the new location and also received the standard acetone checks each month, they do not believe the testing has been affected. However, DPS is conducting an analysis to determine whether or not any test may have been affected. 

At this time, we have no reason to suspect that the tests in any cases were affected. However, should DPS find any irregularities, we will immediately contact you. Should you have any cases that you feel were affected by this SOP issue, please contact the relevant Bureau Chief or the First Assistant.

Well of course the DPS doesn't feel that any tests were affected by the failure of their technical supervisors to follow their own rules. The cover is that acetone tests were run during routine inspections and no problems were indicated.

But that's not the issue here. The issue is whether or not the results of those tests are admissible due to the state's failure to conduct the proper tests when called for in the DPS operating guidelines.

Just remember that the state puts forward the results of breath tests as scientific evidence. As such these tests must be conducted in a certain manner and if they aren't, the results are compromised and not admissible. In order to talk about a test score, the state must present evidence that the machine was in service and functioning properly as well as evidence that the breath test was conducted according to the DPS rules.

If the machines weren't properly tested when they were taken out of service then they should never have been considered back in service after they were transferred to new locations. If that's the case then no breath test score from any of the machines in question should be admissible until the proper procedures are followed for removing a machine from service and transferring it to another location.

The Montgomery County District Attorney's Office and the DPS have an obligation to provide the local defense bars with the serial numbers and locations of each machine that was compromised by the failure to follow the SOG's. It should not be up to prosecutors or the DPS to determine whether tests were affected or not - they have an inherent conflict of interest.

The DA doesn't want to have to dismiss cases and agree to post-conviction writs in the cases in question. The DPS doesn't want to open up a can of worms regarding its breath testing program. Allowing them to determine whether all is well or not is akin to letting the fox guard the henhouse.

High court says no to warrantless blood draws - or does it?

Tyler McNeely was heading home from a local watering hole one evening when a police officer stopped him for speeding and crossing the center dividing line. You shouldn't be surprised to find out that the officer noted Mr. McNeely had the smell of alcohol on his breath, red eyes and slurred speech. Mr. McNeely told the officer he had had a couple of beers.

Apparently Mr. McNeely didn't perform the roadside calisthenics to the degree of precision the officer desired and he was promptly handcuffed and stuffed into the back of a patrol car. The officer asked Mr. McNeely if he'd be willing to provide further evidence against himself by taking a breath test. Mr. McNeely declined the invitation so the officer headed to a nearby medical facility.

Now excuse me for a few seconds while I climb up on my soapbox. By not taking the officer up on his request to blow into a machine, Mr. McNeely violated the implied consent statute in Missouri. Now I'm guessing that Mr. McNeely wasn't told when he applied for his driver's license that he was agreeing to blow into the state's breath test machine whenever an officer thought he was intoxicated. I'm also guessing that none of y'all were told that when they handed you that laminated card with the awful picture on the front.

At the hospital the officer asked Mr. McNeely if he'd be willing to sit down and have a needle jabbed into his arm for the purpose of securing evidence that would be used against him. To no one's surprise, Mr. McNeely again declined the invitation.

The officer then grabbed a nurse who drew the blood. Left unsaid in the sanitized Court opinion is just how the officer managed to get the blood sample in the first place. If someone is unwilling to give blood voluntarily asking them pretty please with sugar on top isn't likely to change their mind. Was Mr. McNeely strapped down in a chair? Did an officer use his weight to subdue Mr. McNeely? Was he held down by orderlies?

Whatever the case, it certainly wasn't a pleasant experience and I'm guessing that if a judge were subjected to a forcible blood draw that the opinions we see on these types of cases would be very different. I'm not thinking a judge would find a blood draw to be "minimally invasive" when a person is tied down or held down. I don't think a judge would be so clinical if it was she was felt that needed go into the vein.

But I digress.

Mr. McNeely was charged with driving while intoxicated. He moved to suppress the blood test results on the grounds that the warrantless "search" was unreasonable. The state argued that there were exigent circumstances - namely that blood dissipates in the blood and if they didn't get their hands on that vial of blood it might make it harder for them to prove their case (or something like that). The trial court granted Mr. McNeely's motion as did the Missouri Supreme Court.

The state then appealed to the United States Supreme Court to determine whether or not the natural dissipation of alcohol in blood qualified as an exigent circumstance to circumvent that thing we call the Fourth Amendment.

Now let's just set aside the fact that for years prosecutors made DWI cases, and obtained convictions, with nothing more than the officer's testimony of what he or she observed at the scene. There are still plenty of cases tried today with nothing more than the officer's testimony and a videotape of the defendant doing a set of roadside exercises. Results from breath or blood tests are needed to pin a DWI on a motorist - they are more of a cudgel used to force a defendant to plead guilty.

There were no exigent circumstances in Mr. McNeely's case. In this day of No Refusal Weekends and judges willing to sign faxed warrant affidavits it's not a daunting task to convince a judge to sign a warrant authorizing the police to jab a needle in someone's arm. Which is precisely what the Nine in Robes decided.

Well, to be fair, the Court said that the facts in Mr. McNeely's case led them to conclude there were no exigent circumstances but they weren't prepared to stretch the ruling to other cases. Instead they decided that each case shall be examined based on the facts peculiar to the case. In other words, courts will be allowed to consider just how badly the defendant behaved before ruling on whether or not the Fourth Amendment applies to his case.

Would the decision have been different had there been an accident? What if Mr. McNeely's alcohol concentration had been higher than .015? Exactly what bad facts would have made this case come out differently?

The dissipation of alcohol in blood is not an exigent circumstance. It is a scientific fact. And, even if you want to call it an exigent circumstance - it's an exigent circumstance created by the police. As such there should be no exception to the Fourth Amendment's ban on unreasonable search and seizure. Decisions such as McNeely only serve to weaken our constitutional protections and turn our rights into balancing tests.

There is no balancing test for a constitutionally protected right. That right is either violated or not. The citizenry are either afforded protection from the state or they're not. Our rights are not ours through legislative fiat and it's high time the Supreme Court take a hard look at the damage to the Bill of Rights its endless variety of balancing tests have cause.

Irish county votes to allow elderly residents to drink more

County Kerry is in the southwest of Ireland. The rural county on the Irish coast is known for its mountains and winding roads.

And now it's known because local councillors voted to allow the local police to write permits to allow some residents to exceed the per se alcohol concentration limits without being arrested for driving while intoxicated (or "drink-driving" as they call it in England).

According to supporters of the measure, there are plenty of elderly residents in the county who live alone and don't have access to public transportation. The permits would allow them to go out, have a good time, knock down a few pints and drive home without worrying about being pulled over.

I'm sure it's just a coincidence that most of the councillors who voted for the measure are also pub owners.

"I see the merit in having a stricter rule of law for when there's a massive volume of traffic and where there's busy roads with massive speed. But on the roads I'm talking about, you couldn't do any more than 20 or 30 miles per hour [30-50km/h] and it's not a big deal. I don't see any big issue with it." -- Danny Healy-Rae, local councillor

Just for reference, the legal limit in England is .08, the same as in the United States, but the limit in Ireland was reduced to .05.

I'm not certain how good an idea this is, however. Somehow the combination of older motorists, alcohol and winding country roads doesn't strike me as the best.

But the debate does bring out one very salient point that Grits for Breakfast pointed out last week - when there isn't adequate public transportation, the number of DWI arrests tend to be higher than in areas with public transportation. That's a problem in rural County Kerry and here in Houston.

Per se limits are also a problem. We have assigned a number to determine whether someone was driving drunk without consideration as to how that concentration affected that particular individual.

While I don't know if the new measure in County Kerry is necessarily a good idea, the very fact that someone is looking at a DWI statute in a different way is a good sign. Maybe it's time we take a second look at our drunk driving statute in Texas. Maybe it's time we started treating DWI's like any other misdemeanor.

Judge throws curve ball regarding Pennsylvania's breath test machines

The DWI statute in the Commonwealth of Pennsylvania establishes three levels of DWI offenses. There is a "loss of normal use" DWI that does not require the prosecution to prove an alcohol concentration (referred to as being incapable of safely driving). The state can also prove up general impairment by showing the driver had an alcohol concentration of between .08 and .10 within two hours of driving.

Should a driver have an alcohol concentration of between .10 and .15 within two hours of driving he can be charge with a "high rate of alcohol" DWI. Should that alcohol concentration be over .15, the driver can be charged with the "highest rate of alcohol" DWI.

The penalties for each of the three levels of offense get stiffer as the alcohol concentration rises.

In January 2010, Jason Schildt was arrested on suspicion of DWI when a police officer came across his car lying on its side in a ditch. A breath test on the state's Intoxilyzer 5000EN revealed an alcohol concentration of .20. Mr. Schildt was charged with multiple counts of driving while intoxicated and faced the most severe penalties as a result of his high breath test.

But, somewhere on the way to the plea docket, things got a bit hairy for the state.

Mr. Schildt's attorney filed a motion to quash the charge alleging that the state's breath test machine could not produce a reliable alcohol concentration reading over .015. The challenge was based on the initial calibration of the machine at the factory as well as the field calibrations conducted on the machines.

According to Pennsylvania regulations, the machine is supposed to be calibrated using simulator solutions purchased from an outside source and certified by an independent laboratory. At the hearing on the defense motion testimony from the state's "expert," an engineer at CMI, established that CMI, the manufacturer of the machine, performed the initial calibration of the machine using ethanol samples prepared in-house.

Furthermore, when the machines were calibrated in the field, they were only calibrated using ethanol solutions of .05, .10 and .15 concentrations. Another controversy arose about calibrating the machine to a zero point. Defense experts pointed out that for a machine to calibrate to zero would require it be able to distinguish a single atom. Anything else would be a guess. A true calibration curve only includes those data points established by a series of calibration tests - by "forcing" the calibration curve to cross the zero point, the curve below a .05 calibration was just pure speculation.

At the conclusion of the hearing, Court of Common Pleas Judge Lawrence Clark, Jr. found that the Intoxilyzers used by the Commonwealth could not be relied upon to produce a reliable result at alcohol concentrations below .05 or higher than .15.

The court did not find that the machines were unreliable - just that there was no scientific evidence that they could be relied up outside the range at which they were calibrated in the field. Judge Clark was also quick to point out that the defense was not challenging the regulations promulgated by the Commonwealth regarding the calibration of the machines. The challenge was to the conclusions made by the machine's keepers based upon the regulatory scheme.

The challenge was creative and illustrates why you have to know and understand the regulations surrounding breath test machines as well as how the machines operate in order to defend a drunk driving case properly. Over the years DWI laws have become more draconian and motorists' constitutional rights have been pared away. In that type of environment, sometimes the best defense is to know the minutiae of the machine better than the prosecutor.

  Commonwealth v. Schildt by   Paul B. Kennedy

NTSB calls for mandatory ignition interlocks

In 1928 Herbert Hoover promised that if he were elected there would be a chicken in every pot and a car in every garage. Things, of course, didn't quite work out that way.

Today the National Traffic Safety Board wants to see an ignition interlock in every car.

If the NTSB has its way, everyone in the United States convicted of a DWI would be required to have an ignition interlock device installed on their car. What's wrong with that, you might ask?

The ignition interlock only detects alcohol. Our drunk driving laws lump in drivers who are under the influence of other substances - such as prescription medications, marijuana or other illicit drugs. What use would an interlock have for a driver convicted of being impaired by smoking marijuana?

Then there's the question of who would be required to install the interlock and for how long. As a condition of probation? That might fly. But what if the defendant ends up going to jail or taking time served and a fine? Are we going to require someone to install the device after they've done their time? And what if there was no breath test? There are plenty of DWI cases in which a jury convicts based on how they think a defendant did on the roadside calisthenics? Will we be looking at mandatory sentences in DWI cases next? Will los federales dictate to the states (through the use of transportation funds) that probation is the only acceptable sentence for a motorist convicted of drunk driving?

These proposals are just a precursor to what the NTSB really wants - interlocks as standard equipment in new cars. Let's forget for a second that it's perfectly legal to drink a beer and get behind the wheel. Go to dinner, have a drink and sit in the parking lot waiting for your alcohol concentration to go down. Let's forget for a second that in this country we are presumed innocent unless the state can prove otherwise.

If interlocks are made standard is the next step a database that will store the interlock readings from every car on the road. You laugh but GM's On-Star allows the police to retrieve a virtual black box that tells them everyplace you've been and how fast you were driving.

And what about the technology itself? Who will calibrate the devices installed as original equipment in new cars? What assurances would we have that the technology is reliable and accurate?

The call for interlocks was based on a study in which the NTSB determined that most wrong-way collisions involve at least one motorist driving while intoxicated. The board patted themselves on the back for pointing out that wrong way collisions are bad. Well, maybe it's one way streets that are causing the problems.

Just hang out in downtown Houston any day and you will see at least one person turning left when they should have turned right (or vice versa) during the middle of the day. All it takes is a driver unfamiliar with the area and a series of one way streets and you've got yourself a potential disaster.

The penalties for driving while intoxicated are already out of proportion with any other misdemeanor on the books. We don't need to pile even more conditions on top of a motorist who finds himself with a DWI conviction. Of course drunk drivers make an easy target for proponents of a stronger police state - no one wants more drunk drivers on the road. And that's just how bad laws get passed.

Assuming that was his real purpose

The other day I was in county court handling a client's DWI case. The judge was calling the trial docket and trying to figure out if anyone was going to trial that day. One by one came the requests for a continuance - and one by one they were granted. That is, until there were two cases left.

One of the cases, a breath test case, was the one picked to go. The defense attorney asked the judge for a continuance because he wanted to talk to the technical supervisor about the assumptions he made in the process of guessing extrapolating the defendant's alcohol concentration at the time of driving.

I overheard bits and pieces of the conversation at the bench while I waited (and waited and waited). The defense attorney wanted to know what assumptions the technical supervisor was making. The judge insisted that the technical supervisor was assuming only one thing - that the defendant had nothing to drink between the time of his arrest and the time he blew into the little black box. The judge insisted that technical supervisors aren't assuming anything else. She told the defense attorney that they use the time of the last drink and of the last meal and the breath test score and the time that elapsed between the time of driving and the time of the test. The defense attorney said the technical supervisor was also assuming that his client was in the elimination phase at the time of the test.

I couldn't help but think that while the defense attorney was correct in his statement that the technical supervisor was making assumptions, it was a pretty lousy argument to use if you wanted to get the case continued.

Of course the technical supervisor is making assumptions. The judge was so far off base with her assertion that he wasn't. Let's take a look at some of the facts used by the technical supervisor to guess extrapolate a driver's alcohol concentration.

First the technical supervisor needs to know about how much the defendant weighed. He also needs to know how much time elapsed between the time of driving and the breath test. He needs to know when the defendant consumed his first and last drinks and when he ate his last meal. It would be helpful if he knew exactly how much the defendant had to drink.

Now let's think of the assumptions being made by the technical supervisor. First he is assuming that the breath test result is accurate. He is assuming that the machine was operating properly that evening and that the operator conducted the test properly. He is assuming that the operator observed the defendant for at least 15 minutes prior to the test. He is assuming that the defendant is being truthful when asked about the time of his first drink, last drink and last meal. He is assuming that the defendant isn't being truthful when he told the officer he had only had a couple of beers. He is assuming that the defendant is in the elimination stage. He is assuming that the defendant eliminates alcohol at a steady rate equal to the number he plugs into his calculator. Finally he is assuming that armed with one data point it is possible to calculate the slope to a another data point at some time in the past.

So, yes, there are a lot of assumptions being made by the technical supervisor. And each of those assumptions gives rise to a line of questions during cross-examination. The best way to attack the conclusions of an expert is not to challenge the expert head-on. The best way is to challenge the assumptions he made along the way.

A breath tester in every car

It's one thing to punish motorists for exercising their Constitutional right to give up evidence that could be used against them. The coercive power of the state is used to try to force motorists to blow into the breath test machine in hopes that it might make it easier to convict them.

Of course in some states, such as here in Texas, if you don't play along and blow into their machine, they'll just strap you down and stick a needle in your arm. As Scott Greenfield points out, if you don't live in a state that employs vampires wearing badges, thank your lucky stars.

But across the pond in France, the state has come up with a new method of gathering evidence against motorists suspected of driving while intoxicated. It is now illegal in France to drive around without a portable breath tester in your car. Motorists have a choice between an expensive electronic unit that can be reused, or a less expensive one-off chemical test kit.

The law will affect everyone who operates a car in France - whether they be French or not. The gendarmes plan to enforce the law by setting up checkpoints at the Channel Tunnel and on ferry landings in order to nab those pesky British drivers who choose not to follow French laws.

While citizens on the continent don't enjoy nearly the level of freedom we do here from unwarranted badgering by the police, requiring motorists to carry test kits seems to me to go just a bit too far. It's one thing to have checkpoints to stop motorists to make certain they're carrying the required test kits - but it's not too far a step to then require the drivers to blow into their little thingeys to see if they are intoxicated or not.

Just think, you'll be providing the evidence to be used against you in your very own test kit. As the brewers of Guinness would say, "Brilliant!"

How long until someone here takes up the cause of breath testers in every car? MADD is already calling for interlock devices to be mandatory. And if such a measure were passed, would the police have the authority to set up checkpoints to determine if motorists were carrying their breath testers with them? Would the police have the authority to require a motorist to blow into their tester upon request?

Maryland court finds DRE to be unreliable

In 1979 two sergeants with the Los Angeles Police Department cooked up the Drug Recognition and Classification Program (DEC). The National Highway Traffic Safety Administration (NHTSA) climbed on board the bus and developed a standardized curriculum. The International Association of Chiefs of Police became the national certifying agency in 1990.

Police officers without formal scientific training sign up for a 72-hour (clock hours, not semester hours) course in which they learn about seven categories of drugs and are taught to administer a 12-step test (how tastefully ironic) to drivers suspected of being under the influence of drugs. Should they pass a test with a score of at least 80% they are certified as drug recognition experts (DRE).

And, in courtrooms across this country, police officers with no more knowledge than that are allowed to give expert opinions about what drug a motorist was under the influence of while driving. Jurors who have been trained since childhood to trust the police then take this testimony back into the deliberation room with them when deciding whether or not the government proved its case beyond all reasonable doubt.

It happens because judges are scared of their role as gatekeeper of what the jury hears and sees. Too many of the men (and women) in black dresses are fearful of their prospects for re-election should they actually enforce the Constitution and the rules of evidence.

Judge Michael Galloway of the Circuit Court for Carroll County, Maryland, wasn't afraid.

He was asked to determine whether such testimony was admissible in a DWI prosecution. He said it was not.

The state presented six expert witnesses who all claimed that the DRE program was valid, only one of whom was a licensed physician.

Dr. Karl Citek, an optometrist, did not attend medical school. He said he was an adjunct faculty member at the Institute of Police Technology and Management where he taught a three-day class on the medical and science background behind the DRE program. By his own word he stated that the officer conducting the DRE is "making a diagnosis of whether the person is impaired by a drug or medical condition." He also testified that the program does not provide for a set number of indicators that a DRE needs to observe to reach an opinion.

Ms. Michelle Spirk, a chemist with the Arizona Department of Public Safety, had been "heavily involved in the DRE program" for many years. She was only qualified to testify as to the possible effects of a drug and could not testify as to its effect on driving.

Mr. William Tower III, a law enforcement liaison with NHTSA, noted that officers entering the DRE program were not required to have had any prior medical training and that by taking the course and passing the test with a score of at least 80%, any officer could become a DRE. He claimed that the DEC program was designed so that officers could conduct a "systematic and standardized" evaluation to determine whether a person was under the influence of a drug. Then he went on to say that the opinion reached by the DRE would still be valid even if he didn't complete all twelve of the steps in the protocol.

Mr. Tower testified that even if no drugs at all are found in the subject's blood, the DRE is "not going to change [their] opinion after you get the blood. Mr. Tower stated that the reason there would be no change in the officer's opinion is that "you are limited on what the lab can test for." - State of Maryland v. Consolidated Cases

Officer William Morrison, coordinator of the Montgomery County Police Department's Chemical Test Unit, testified that the DRE is "specifically making a medical diagnosis during the examination by ruling out medical conditions during the examination." This from an officer with no medical training or background. He went on to say that he wasn't concerned about the individual indicators because he looked at the "totality of everything" in reaching his opinion.

Dr. Zenon Zuk told the court he had last read the DRE manual fifteen years ago - but that didn't prevent him from testifying on behalf of the protocol fifteen times. Interestingly enough, Dr. Zuk also works with the Western Branch of the U.S. Immigration Service sedating deportees with drugs. No one asked if he had a framed portrait of Dr. Joseph Mengele on his desk. His interest in the DRE program began with his fascination with Tharp's Equation. For those not up on their junk science, Tharp's Equation states that you can predict a person's alcohol concentration by subtracting the angle of onset of horizontal gaze nystagmus from 50 degrees. Just try finding that in a medical textbook or journal.

The defense experts were Dr. Fran Gengo, Dr. Neal Adams and Dr. Jeffrey Janofsky. Dr. Gengo is pharmacologist who has published 65 peer-reviewed articles, three of which dealt with drug-impaired driving. Dr. Adams is the chair of Ophthalmology at the Texas Tech Medical School. Dr. Janofsky is a professor of psychiatry at Johns Hopkins University School of Medicine.

Dr. Gengo testified that the DRE protocol uses tools used by the police in a "novel and unreliable way." He also testified that drugs can have a myriad of effects on an individual that aren't addressed in the DRE manual.

"[T]he data has spoken for itself that [the DRE protocol] cannot reliably discern impairment from non-impairment and cannot reliably identify the medication allegedly causing the impairment." -- Dr. Fran Gengo

Dr. Adams testified that there was no validity to Tharp's Equation. He also had problems with the DRE matrix because it focused more on the category of drugs rather than the relative weight of the drugs and because police officers don't have the judgment nor experience that doctors have in making medical diagnoses. He listed a series of questions regarding nystagmus that are unaddressed in the DRE protocol.

"Medical judgment is using items that may be in a matrix and placing our own experience, our own understanding of the medical literature, placing the knowledge that we have gained into that matrix, understanding the relative weights of different items in that matrix and coming out with a judgment. So that even if we were using this matrix in its totality without anything else, there is an element of judgment that we as physicians would incorporate to assist us. And that is not present; that is, it is a very important component of the matrix that is not present in this matrix. And that is what I was trying to get at is how we as physicians interpret these." - Dr. Neal Adams

Dr. Janofsky was concerned that the DRE protocol had never been validated in any peer-reviewed scientific journal. He testified that the DRE protocol was neither a diagnostic test nor a standardized protocol because it required clinical medical judgment for someone to come to a valid conclusion. Finally, Dr. Janofsky testified that there is a difference between the presence of a drug and evidence of impairment by that drug.

In its review of case law from other states regarding the DRE, the court found instances in which DRE testimony had been permitted because it wasn't scientific evidence. The state argued that the DRE's opinion was formed on the basis of his knowledge and experience. Judge Galloway didn't bite at that apple.

The state wants to have it both ways. It wants to present the evidence as if it's the result of a scientific process but it doesn't want to have to meet the burden established by Daubert for the admissibility of scientific evidence. Prosecutors know that if they can have a police officer color up a protocol that lacks any scientific validity with some words and phrases that convey it as being valid and accepted, then a jury will eat it up like candy.

In the end, Judge Galloway found that the DRE protocol was a novel technique that was not generally accepted in the scientific community. He also found that, even if the DRE protocol wasn't scientific evidence, that a DRE "is not sufficiently qualified to render an opinion, that the testimony is not relevant, and the probative value of the evidence is substantially outweighed by its prejudicial effect."

Unlike many judges who are unwilling to upset the apple cart, Judge Galloway was swayed more by his concern over a defendant's right to due process than judicial efficiency.

DREOrderExcludingDREMarylandMarch52012

I'll have a fifth, please

On Thursday morning, Harris County Assistant District Attorney Rachel Palmer appeared before a grand jury looking into the troubled HPD mobile alcohol testing vans (BATmobiles). Ms. Palmer invoked her Fifth Amendment right to remain silent and refused to answer any questions.

The grand jury then filed a motion to compel with State District Judge Susan Brown. A hearing on that motion was held Thursday afternoon after which Judge Brown announced she would hear from both sides on Monday.

Now why would the ADA invoke her right to remain silent? Don't they like to tell us that an innocent person has nothing to hide? That our client had the opportunity to give his side of the story but chose not to?

And how might her answering questions incriminate her?

Did the Harris County DA's Office know about the problems with the BATmobiles? Did prosecutors provide that information to defense attorneys? Were prosecutors aware they were putting on perjured testimony regarding the reliability of the breath test machines in the vans? Did the DA's Office prosecute motorists knowing that the "evidence" upon which they relied was faulty?

However this shakes out, it's a black eye for Harris County DA Pat Lykos. It doesn't look good when a prosecutor refuses to answer questions from a grand jury investigating the conduct of both the police and the DA's Office.

I just wonder if the DA's Office is so hell bent on prosecuting DWI's that they will violate the law in so doing, what do they do on more serious cases?

See also:

"Your Fifth Amendment at work," Defending People (12/15/11)
"Motion to compel," Life at the Harris County Criminal Justice Center (12/15/11)

'Tis the season to give

If you're planning on drinking and driving over the holidays, you might seriously think twice. More and more counties will be conducing No Refusal weekends over the holidays.

The popularity of the initiative is no surprise given that most no-test drunk driving trials are a coin flip proposition. Add in a number on a piece of paper and, suddenly, the success rate for the prosecution soars. That number can be scary.

The attraction for law enforcement and prosecutors is that blood evidence is a powerful tool in front of juries. Armed with blood evidence of intoxication, prosecutors can win convictions in more than 90 percent of drunk-driving cases, said Houston police Capt. Carl Driskell, who works in the traffic enforcement division. 

And often, lawyers say, defendants faced with blood evidence admit their guilt and don't bother with a trial. "If it bleeds, it pleads," said Fort Worth prosecutor Richard Alpert.

But, it's only a number.

Blood tests are conducted by unbiased scientists wearing white lab coats. They're performed by employees of law enforcement agencies. The very people who are trying to convict your client are the ones performing the tests.

Just think about that for a second. Think about that before you walk your client up to the bench to plead out the case. You don't accept the officer's opinion that your client was intoxicated. You don't accept the premise that the coordination exercises he performed at the scene are conclusive proof of anything. But you will accept a number on a piece of paper signed by a lab technician in the employ of the crime lab or the DPS as proof positive that your client is up a creek without a paddle.

You realize they didn't even test the blood itself?

What? You didn't know that? Remember all that talk about Henry's Law with the alcohol jar attached to the back of the breath test machine? Remember that machine supposedly measured the amount of alcohol vapor in your client's breath? It was an approximation of an indirect measurement.

Guess what. That's all a blood test is. After they mix a bunch of chemicals and salt into the blood sample, the lab tech takes out a sample of... air. That's what's being sent through that fancy gas chromatograph. Not blood - air. It's as much an indirect measurement as a breath test.

Prosecutors around the state push for No Refusal weekends because they know that most defense attorneys will crumble when they see the number. Put the state to its burden. Force the prosecutor to explain to a jury how the machine works. It's only a number.

Blood or breath?

Is a blood test more accurate than a breath test? Is either one reliable when it comes to proving whether a motorist had an alcohol concentration of .08 or higher?

The answer in Austin may very well be no and no.

Are Blood Alcohol Tests Credible?: MyFoxAUSTIN.com

An Austin defense attorney reported that his client had a blood sample taken on a No Refusal weekend. That sample was tested by the Austin Police Department's crime lab. The result came back showing his client had an alcohol concentration of .10. The defense attorney had the blood retested by the Southwestern Institute of Forensic Science in Dallas. Their test showed an alcohol concentration of .08.

What happened?

While it is true that as alcohol metabolizes in the body the alcohol concentration decreases, when blood is stored in a sealed tube there is no way for the alcohol in the blood to metabolize. In fact, it is more likely that the alcohol concentration would increase due to contamination of the blood.

First a little primer on blood testing. When a blood sample is drawn in a DWI case, the person drawing the blood typically makes two draws in two separate tubes. One tube is the "state's" tube and the other tube is there in case the defense wants to retest it. The technician in the lab will prepare two samples from the tubes for testing in a gas chromatograph. This gives us four test results. Typically the lowest result is the alcohol concentration used at trial.

In Austin, however, they average the four results to come up with an alcohol concentration. That raises questions of which blood sample is the actual sample to be used at trial. It also raises questions about the validity of the method by which APD determines alcohol concentration.

APD officials weren't concerned about the 20% discrepancy in the test results. What's a couple hundredths of a gram anyone, right?

APD claims that the differing results could have been caused by evaporation of the alcohol in the test tube -- except that the tubes are supposedly sealed and refrigerated to prevent degradation of the samples. And what about that pesky Henry's Law that states whenever you mixed water and alcohol in a closed system, the concentration of alcohol in the water and the concentration of alcohol in the headspace is the same? A sealed test tube is a closed system.

Just a little something to think about.

You can call it what you will, but it's still illegal

You may remember Ruben Trejo, he's the former HPD sergeant who collided with a school bus on his way to work -- with an alcohol concentration of .176. On Friday, Mr. Trejo pleaded guilty to driving while intoxicated, paid a $500 fine and was placed into the Harris County District Attorney Office's pretrial intervention program (DIVERT).

Trejo, who has retired from the department, was allowed to the Harris County District Attorney's pretrial intervention program in which defendants plead guilty to DWI, but the verdict is deferred for a year. If the defendant completes all the requirements in the program, there is no conviction but the initial arrest remains on record.

What's wrong with this picture, you ask?

When a defendant opts for deferred adjudication in a criminal case, she enters a plea of guilty before the court, the judge then states that he finds enough evidence to find her guilty but that he will withhold a finding of guilt for a period of time (the length of the probation). Once the defendant completes her probation the criminal case will be dismissed and she will be eligible to file a petition for nondisclosure.

The problem is that deferred adjudication is not available for anyone charged with driving while intoxicated in Texas - even though it is available to a person charged with murder. The Houston Chronicle article points out, in plain English, why the DIVERT program is illegal.

Calling it pretrial intervention doesn't change that fact. Once the defendant enters a plea of guilty on a DWI case, there is nothing the judge can do (legally) other than record it as a conviction and sentence accordingly. As soon as the judge states she is deferring a finding of guilt, we're talking about deferred adjudication.

Isn't it ironic? (Don't you think?)

Sgt. Roy Marquez of the Houston Police Department's Traffic Enforcement Division (the guys in charge of the DWI task force) found himself on the opposite side of the line earlier this week in Pasadena. It seems that Sgt. Marquez ran a red light and ended up rolling his SUV after being struck by another car. It also seems that Sgt. Marquez had had a little bit to drink that night. After he declined the offer to blow into the breath test machine, a search warrant was signed authorizing the state to jab a needle into his arm and draw his blood. A blood test then showed an alcohol concentration of .127.

The most amazing thing about this story is not that a police officer was driving while intoxicated (we've already seen that), but that the blood test results were back within four days. I've got cases in which I can't get the results of fingerprint analysis for weeks or I can't get anyone to run a gun to see if it's been used in a crime -- but the lab can get the sample, catalog it, prep it, run it through the gas chromatograph and deliver the results to the DA in less than four days. Unbelievable.

Enjoy the irony...

HPD officers disciplined for role in cover up

The other shoe fell on Tuesday as seven police officers, including an assistant chief, were disciplined for their role in attempting to cover-up an accident involving an HPD officer whose blood alcohol concentration was more than twice the legal limit.



On April 13, 2011, Houston Police Department Sergeant Ruben Trejo collided with a private school bus while driving to work in the afternoon. A blood test showed Mr. Trejo had an alcohol concentration of .203.

According to accounts, officers covered up open bottles of alcohol in Mr. Trejo's vehicle and threatened to arrest anyone taking pictures of the scene.

This same behavior by non-peace officers would have resulted in criminal charges being filed. But for uniformed police officers attempting to cover up a crime by a fellow officer, the punishment ranges from a slap on the wrist to a day without pay.

I would have posted a copy of the accident report except that HPD accident reports are no longer available for download on Vectra.com.

What's the point?

To secure a defendant's attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community. -- Texas Code of Criminal Procedure Art. 17.40(a)

The other day I was sitting in court when the judge called up everyone making their first appearance. He had the prosecutor read the probable cause statement. On every DWI case he asked the prosecutor whether there was an accident or a breath test.

The first defendant was a young man (I'm guessing he was in his 20's, but as I'm getting older, my ability to guess ages is in rapid decline). There was no accident in his case - but there was a breath test. A breath test of .000. The arresting officer suspected he was under the influence of something other than alcohol so a drug recognition evaluation (more voodoo science for another day) was performed. Apparently our hero had taken a central nervous system depressant or two.

The judge order the young man to install an ignition interlock device in his car.

I found it to be quite odd - as did the attorney sitting next to me. It's not like an ignition interlock is going to detect the presence of CNS depressants (other than alcohol) in one's breath. If this young man had a problem, it certainly didn't appear to be with alcohol.

A couple of minutes later we had DRE number two on the morning. Again we had a breath test well under the legal limit. And, again, the judge ordered the defendant to install an ignition interlock device on her car.

The law says a judge shall order an ignition interlock device as a condition of bond for a defendant who has at least one prior conviction for driving while intoxicated. The law also says that a judge may order an ignition interlock device as a condition of bail in a case with a breath or blood test over .15.

So what's going on here? Ordering the installation of an ignition interlock when a person clearly was not intoxicated by consuming alcohol makes little or no sense. It certainly doesn't do anything to enhance the safety of the community.

All it appears to do is line the pockets of the companies that distribute, install and maintain the devices. I do wonder where that money goes.