At the side of the road, law enforcement routinely makes DUI arrests based upon results of a Horizontal Gaze Nystagmus (HGN) test. The underlying premise of the test is: you drink enough alcohol, and then you eyes will show HGN.
Alcohol, however, is not the sole cause of HGN. In State v. Horn, the court recognized the following causes or possible causes of HGN:
- problems with the inner ear labyrinth;
- irrigating the ears with warm or cold water;
- influenza; streptococcus infection;
- Korchaff's syndrome;
- brain hemorrhage;
- motion sickness;
- eye strain;
- eye muscle fatigue;
- changes in atmospheric pressure;
- consumption of excessive amounts of caffeine;
- excessive exposure to nicotine; aspirin;
- circadian rhythms;
- acute head trauma;
- chronic head trauma;
- some prescription drugs; tranquilizers,
- pain medication,
- anti-convulsant medicine;
- disorders of the vestibular apparatus and brain stem;
- cerebellum dysfunction;
- exposure to solvents;
- extreme chilling;
- eye muscle imbalance;
- continuous movement of the visual field past the eyes; and
- antihistamine use.
When should you trust a blood test result that claims to measures an alcohol concentration? Start by reading the test's "Warning Label." Here is an explanation on my legalcoffee blog.
September 17, 2013 by Lawrence Koplow
Filed under Aggavated DUI, Alcohol, Arizona DUI Laws, Blood, Breath Testing, DUI, DUI Defenses, DUI Trials, Felony, Forensic, Phoenix, Science, Scottsdale, Super Extreme DUI, Testing.
In DUI cases, a machine called a gas chromatograph is often used to measure an alcohol concentration in a blood sample. The measurement, which the machine prints at the end of the process, is called a reported result. We are finally at the point in Arizona, where courts are starting to recognize that merely providing a reported result is not sufficient evidence. The law is coming to the same realization that science did many years ago: a reported result from a machine is an incomplete measurement.
A complete measurement includes more than just a reported result. As a matter of fact, simply providing a reported result is often misleading. A reported result is only complete when accompanied by a “statement of its uncertainty.” See NIST Technical Note 1297, 1994 Edition. No measurement is perfect. The result of any measurement is only an estimation of its value. A “statement of uncertainty” is the range of doubt that exists regarding a measurement.
A complete test result, must also include:
- a “Range of Uncertainty” and;
- a “Confidence Interval.”
To illustrate, let’s assume that a blood test result was .100. Let’s also assume, based on a review of the machine’s prior performance, a “range of uncertainty” was determined to be ± 5%, with a “confidence interval” of 100%. This means, the reported result could be as low as a .095 and as high as a .105. Moreover, this also means, if the same blood sample were repeatedly tested on this equipment, the result would only be outside of the ± 5% range 1 out of a million times. If this statistic were true, this would certainty be a reported result that you could trust.
On the other hand, what if for the same reported result of .100 the range was ± 30%, with a confidence interval of 50%? Here, this means the reported result could be as low as .070 or as high as .130. Furthermore, if you continued to test this sample on the same equipment, 300,000 times of out of a million, the reported result would be outside the range stated above.
When comparing the two complete test results, you can see that providing a mere reported result does not tell us the whole story. Merely telling us the reported result can actually tell us a very misleading story. Science will not accept incomplete measurements. Why should the law?
In July of 2012, I asked a member of the Scottsdale Crime Lab for an interview about some rumors. She refused and told me to get a court order. At that time I was surprised. Why would she refuse to do a routine interview? Today we know the answer.
Today we now know that: (1) the Scottsdale Crime Lab’s blood testing equipment is unreliable; and (2) the testimony of the crime lab personnel is not trustworthy. Don’t take my word for it – just read the court’s opinion by clicking here.
In an editorial printed in the San Francisco Chronicle on November 11, the paper argues for increased use of intelligent pre-trial realease programs. In these programs, much more effort is made to determine an accused's threat level to determine if they are a threat to others or a flight risk. If the individual scores low in an objective threat assessment he will be released without bail pending trial.
Often these programs include strict conditions and supervision. In San Francisco, pretrial release programs match defendants with support services, such as drug, alcohol, or anger management classes. According to Garry Herceg, director of Santa Clara Office of Pretrial Services, 87% of their released defendants attend their court dates, only 3 percent re-offend, and the program saves $32 million a year.
This is probatly the most time I have ever seen a DUI driver sentenced to. David Apraham, a 44 year-old man, was sentenced by Virginia judge to seven years in prison. Mr. Apraham had 12 prior DUI convictions in Mississippi, Alabama, and Virginia. He was also wanted for DUI charges in North Carolina and Washington State. In fact, when he was pulled over for the most recent offense, Mr. Apraham was supposed to be on house arrest. The seven years sentence was the maximum possible punishment available to the judge.
In California, It is unlikely that a judge would be able to sentence a defendant to such a long sentence for DUI with priors.
According to an article in the Marin Independent Journal, the California Office of Traffic Safety has awarded the City of San Rafael a $102,000 grant for traffic safety enforcement. This money will go towards beefing up enforcement of traffic laws, including increased "saturation" patrols for suspected DUI drivers. This will surely mean more officers looking for DUIs on popular drinking weekends.
Watch out in Marin County, and remember to vote today!
According to an article in the San Jose Mercury News, Bobby Brown, B-List celebrity and ex-husband of the late Whitney Houston, was arrested for Driving Under the Influence (DUI). The arrest occurred in the Topanga area of Los Angeles County. Mr. Brown was on probation at the time for a prior DUI conviction in March. One of his probation requirements was to check into a rehab clinic. It seems that this wasn't quite enough. Why can't rich celebrities afford to hail a cab?
According to an article in the Vallejo Times Herald, the Solano County District Attorney's office received a California grant to fund enhanced DUI enforcement. The DA will use the money to fund a new special prosecution team. Prosecutors on this team will be specially trained and experienced in DUI prosecution. I suppose this means that lawyers on this team will be freed from other duties, such as domestic violence, in order to specialize on DUI.
The funding will also be used to pay for "state-of-the-art" breath alcohol testing equipment.
This news should only add strength to the advice that anyone in Solano County being prosecuted for DUI should hire an experienced DUI defense attorney. If the government has a specially trained and experienced DUI attorney coming after you, shouldn't you have a similarly trained and experienced attorney protecting your rights?
According to an article in the Chicago Tribune, the United States Supreme Court has agreed to hear an appeal of a lower court's order to suppress the results of a forced blood draw. The case, Missouri v. McNeely, involves a situation in Missouri where a suspected drunk driver refused to voluntarily provide a sample of his breath or blood for testing. A blood technician then involuntarily took Mr. McNeely’s blood. Lawyers for the ACLU argue that such a forced draw without a warrant violates the 4th Amendment’s guarantee against unreasonable searches. The prosecutors argue that requiring a warrant is unreasonable, because the blood alcohol evidence will be diminished in the time needed to get the warrant.
This issue was addressed by the Supreme Court in their 1966 Schmerber v. California decision. In that case, the Court held that a warrantless and non-consented blood draw is constitutional if: (1) It is done in a reasonable, medically approved manner, (2) is incident to a lawful arrest, and (3) is based upon reasonable belief the arrestee is intoxicated. This decision was followed in California in the case of People v. Ford. Ford held that to be reasonable, the privacy right involved must be weighed against the public need for evidence. The first factor to consider is the extent to which the procedure may threaten the safety or health of the individual. The next factor is the extent of the intrusion upon the individual's dignitary interests in personal privacy and bodily integrity. They went on the hold that the public has a substantial interest in seeing their drunken driving laws enforced. Ultimately, the Ford Court held that drawing blood from a non-consenting, but non-resisting individual, by a medical technician, in a police department, is permissible.
It will be interesting to see in the coming months whether the side challenging forced blood draws will attempt to distinguish the present case from Schmerber, or will seek to overturn that decision entirely. Stay tuned...