NY Times article questions reliability and validity of breath testing devices

Read the full article here:  https://www.nytimes.com/2019/11/03/business/drunk-driving-breathalyzer.html

Before you call me to complain that your conviction should be thrown out, I have to point out that none of the devices mentioned in this article are approved for evidentiary use in Illinois.

IL Appellate Court rules that blood in motorist’s mouth invalidated her breath test

In a new Illinois Appellate Court opinion (People v. Ernsting, 2018 IL App (5th) 160330), the Court affirmed a trial Court’s ruling that a breath test result was inadmissible due to the motorist bleeding inside her mouth.

According to the opinion, the motorist claimed that after having three beers with dinner, she went for a ride with her 85 pound dog.  During the ride, the dog was unruly, and was licking her face and obstructing her view.  As a result, the defendant crashed her car.

She testified that before taking the breath test, she was bleeding from her mouth.  The arresting officer did not check her mouth, in violation of the Illinois Administrative Code rule for breath alcohol testing, which requires that the breath test operator observe the subject for 20 minutes prior to the test, to ensure that there is no foreign substances in her mouth.  The Court found that blood is a foreign substance.

The Court also heard testimony from Ronald Henson, PhD., a breath test expert (who I have used in a few DUI cases and one civil case in the past).  Dr. Henson testified that blood in a subject’s mouth is a “foreign substance” and would elevate their BAC result and make the test unreliable.  This was supported by Henson’s opinion that the defendant did not appear to be intoxicated on the arrest video.  He also pointed to mistakes that the officer made in administering the breath test.

Due to these errors, the Defendant’s breath test of 0.215 was suppressed from evidence at her trial and her statutory summary suspension was rescinded.

U.S. Supreme Court issues split decision in DUI refusal cases

Today the United States Supreme Court issued its Opinion in three consolidated cases that dealt with states that criminalize anyone who is arrested for a DUI and refuses to submit to a blood or breath test (Birchfield v. North Dakota).

The short version of it is that the Court did not find a problem with state laws that make it a crime to refuse a breath test.  The Court found that a breath test falls within the right of law enforcement to conduct a search subject to arrest and that one’s right to bodily integrity or to avoid self-incrimination were not significantly affected enough to overcome this.

However, the Court found that blood tests are a significant invasion of one’s right to bodily integrity and privacy, and that states could not require warrantless blood draws in DUI cases, except in exceptional circumstances.

Currently, Illinois does not criminalize breath test refusals, however, it does impose a license suspension of one year for first offenders and three years for repeat offenders who refuse to submit to breath, blood or urine testing subsequent to a DUI arrest.  However, now that the Supreme Court has ruled that it is permissible, perhaps that will change.

Personally, I feel that it is deep within our traditions to say no to government, to insist on our bodily integrity, to be free of unreasonable searches and seizures and to have the right to refuse to provide evidence that may incriminate ourselves.  I feel that this opinion, like so many when it comes to DUI, ignores our legal history and tradition, and ignores the important Constitutional protections that makes America the freest nation in the world, merely to make it easier to convict DUI defendants.  This approach is short-sighted.  I hope that our Illinois legislators don’t take this opportunity to further chip away out our freedom and liberty.

Recommended Reading: The History of Breath Alcohol Testing

drunkometerClick here to read an interesting article by Matt Novak of the PaleoFuture blog about the history of drunk driving laws and attempts to scientifically determine blood alcohol levels through breath testing.

Here is a sample:

Scandinavian countries were ahead of the curve in adopting strict limits on drunk driving. In his 2011 book One For The Road, Barron Lerner explains that Norway’s BAC limit was 0.05% by 1936, while Sweden’s was 0.08% by 1941.

But Americans were much more lenient when it came to drunk driving. Even as late as the 1960s, American courts in many states saw anything less than 0.15% as probably not worthy of prosecution, still adhering to guidelines set up in 1939 by the National Safety Council and the American Medical Association. They gave three ranges for BAC, which would become the standard in a majority of state legislatures:

  • 0.05% and below: Defendants should not be considered under the influence
  • 0.05% to 0.15%: Not considered “under the influence” but taken into account if other evidence is presented
  • 0.15% and above: Presumed “under the influence” of alcohol

Fascinatingly, the justice system was especially lenient in part because of the many recent failures of alcohol prohibition in the U.S. during the 1920s. Even organizations like the AMA and the NSC thought it best not to be too harsh on people who drove drunk.

During the 1950s, the American public and the judicial system were still erring on the side of the drunk driver. Oddly enough, some people were concerned that the mechanization of measuring sobriety was somehow not fitting with the American way. With an attitude that seems counterintuitive to many of us here in the 21st century, people didn’t trust machines more than a cop’s testimony of slurred speech or sloppy behavior.

Opponents even had a name for the rise of technologies like the breathalizer: push-button justice…

The 1960s brought about a turning point in the public health community. Borkenstein conducted a landmark study in 1964 known as the Grand Rapids Study which concluded that there was a definitive link between increased BAC and car accidents. Amazingly, people were still debating in the 1960s whether drunk driving really posed a risk on the nation’s roads.

Just a few years later, in 1968 a study by the U.S. Department of Transportation found that about half of the nation’s auto fatalities (about 25,000 deaths) involved alcohol. Slowly but surely over the course of the next two decades, Americans would come to see drunk driving as without question dangerous and immoral. And the technology for testing BAC (which would become electronic by the end of the 1970s) would help put an end to an era that some people called the Golden Age of Drunk Driving.

Read the whole thing here:  http://paleofuture.gizmodo.com/drunk-driving-and-the-pre-history-of-breathalyzers-1474504117