Alcohol Sensing Steering Wheel?

Always a glutton for media attention, U.S. Senator Charles “Chuck” Ellis Schumer has involved himself in such controversial and well-covered issues as immigration reform and universal voter registration.

Schumer’s latest quest for the media lime-light includes his push for legislation “to boost alcohol-detection technology in cars, which he said could greatly reduce drunk driving — especially for repeat offenders.” [i]

According to Schumer: “Technology like this is potentially breathtaking in terms of saving lives.”[ii]

The Staten Island Real-Time News reports: “The bill, aimed at fostering research and development, looks to create a partnership between anti-drunken-driving advocates, including MADD, and car manufacturers to design devices to keep intoxicated people from getting behind the wheel.[iii]”

According to Patentstorm.us there are many such anti-drunk driving technologies in the works.  For example:

Other technologies, aside from the breath analyzers, have been combined with automobile interlock systems to prevent an intoxicated person from starting a vehicle.

For example, U.S. Pat. No. 5,743,349, issued to Steinberg in 1998, includes a non-invasive reader of a person’s blood alcohol concentration in combination with ignition interlock circuitry to prevent operation of a vehicle by an intoxicated person.

The non-invasive BAC reader utilizes optical spectroscopic electromagnetic radiation to detect alcohol levels in blood. The sensor is preferably dash mounted and requires the driver to insert his or her finger into the device, and depending upon the result of the test, the operator may be instructed to wait or to find a non-impaired operator.

Similarly, U.S. Pat. No. 6,229,908, issued to Edmonds, III et al. in May 2001, discloses a vehicle interlock device that includes both a blood alcohol detector that measures intensities of wavelengths of light emerging from a finger inserted into the sensor device, as well as a fingerprint scanner, which compares the fingerprint of the user to a pre-stored image of the fingerprint of the principal driver of the vehicle. Although acceptable for testing a driver at the time of starting the vehicle, the ’349 patent is not applicable to continuous BAC testing after engine startup.

Although these aforementioned devices are a good start towards keeping impaired drivers off the road, they fail in several regards. Whether the BAC sensor is a breath analyzer or an optical spectroscopic reader, they all require some positive action by the driver, thereby limiting it to discontinuous operation, once at engine startup, and then randomly during operation of the vehicle.

A technology that offers an alternative approach to non-invasive detection of BAC, as well as continuous BAC testing, is based upon the knowledge that alcohol is eliminated from the body by two mechanisms: metabolism and excretion. Metabolism accounts for greater than 90% of ingested alcohol and occurs principally in the liver. The remaining 10% of ingested alcohol is excreted, unchanged, wherever water is removed from the body, including breath, urine, perspiration, and saliva. The excreted alcohol is significant because it can be measured and correlated to a person’s BAC.

U.S. Pat. No. 5,944,661, issued to Swette et al. in 1999, discloses an electrochemical sensor that continuously measures very low concentrations of ethanol vapor at the surface of the skin, as well as skin properties, such as temperature and ionic conductance.

Similarly, Secure Continuous Remote Alcohol Monitor.RTM. (SCRAM.RTM.), manufactured by Alcohol Monitoring Systems, Inc., is a non-invasive alcohol-detection system that automatically tests for blood alcohol content (BAC) by monitoring transdermal alcohol present in insensible perspiration, which is the constant, unnoticeable excretion of sweat through the skin. SCRAM.RTM. measures the concentration of ethanol (a byproduct of alcohol consumption) in perspiration, in order to determine a person’s BAC.[iv]

Schumer intends to jump-start these technologies using government money to the tune of 12 Million per year.  However, not everyone is pleased with Schumer’s bill. The American Beverage Institute criticized the legislation, saying the devices should be kept to vehicles of repeat drunken driving offenders and not be mandated in vehicles as standard equipment, although the legislation does not include such a mandate. It also argued that the devices could keep people from driving even if their blood alcohol level is less than the limit for drunken driving, such as after having a drink at a restaurant.[v]

Much has been previously written about the promise of technology in ending drunk driving, and about many of the problems inherent in such attempts.  For example, see:

Will Technology End Drunk Driving?

Will Ignition Interlocks End Drunk Driving?

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

[ii] Id.

[iii]According to: Judy L. Randall , June 04, 2010, 6:28AM

[iv] http://www.patentstorm.us/patents/7413047/description.html

[v] Washington Daily Times.com, May 28, 2010.

As originally conceived the United States Supreme Court was intended to be a final check on the police power.   And to a lesser extent, so it is with all judges, who collectively form one of our three branches of government.

The central goal behind the idea of having three branches of government is that a separation of power would exist such that each branch would keep the other from gaining too much power.

Because of this there has always been a certain amount of tension between the branches and there has also always been a certain amount of overlap between them.

Take for example the executive branch, which is largely made up of the military and police powers. Both exist to protect us from local and foreign aggressors. One question that arises in this context is this: “do judges also have a role in protecting society?”

This is not such an easy question to answer, but it is a question that is often at raised when judges are interpreting criminal laws and the corresponding constitutional rights and the protections that pertain to them.

One such right is to be free from unreasonable searches and seizures.  Out of this constitutional protection arise the limitations on the police power and ability to stop motorists.

Nowhere is this right more frequently litigated than it is in drunk driving cases.  Nearly every drunk driving arrest is preceded by a vehicle stop, and so the analysis of a drunk driving case begins with the question: “was the stop lawful?”

Justice Roberts

The view of many judges is that drunk driving is such a societal problem that attacking it justifies an expansion of the police power.  This sentiment is certainly reflected in the Associated Press story entitled “Roberts speaks out on drunk driving case.”

Justice Robert’s opinion, as reflected in this story, is that “police should have every legitimate tool at their disposal for getting drunk drivers off the road.”  In the Justice’s opinion, the ends justify the means because drunk driving is such a big societal problem.

And this brings back again to the question: “do judges also have a role in protecting society?”  The answer is unequivocally “yes,” but only when followed by “so long as doing so does not violate the constitution.”  Too often do judges see themselves not as a check on law enforcement, but instead as part of the law enforcement team.

Perhaps that is why the judge is so focused on how the high court’s decision may limit the ability of the police to stop a drunk driving.  Robert’s said “The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road — by which time it may be too late.”

Unfortunate yes, but for any constitutional question there will be a concern about how limiting the police power will correspondingly limit the efficiency of law enforcement.  But the constitution is designed to limit the efficiency of the executive branch, and a Supreme Court Justice should never lament this fact.

Lest anyone think this opinion is only one held by a “conservative” judge (Roberts was appointed by the first Bush), liberals clearly also hold a “get tough on drunk driving” animus.

This is evidenced by the recent New York Times editorial lauding California’s new Interlock law.  The editorial states:

“Mandating the ignition-interlock devices for all drunken-driving offenders is smart safety policy. Once installed, the vehicle will not start until the driver first blows into the device and registers an alcohol level below the legal limit.”

This opinion of the opinion maker’s paper is simply off the mark and not well thought out.  The reasons have already been addressed elsewhere on this blog.

A drunk driver is unquestionably a danger to society, but the danger posed by a drunk driver pales in comparison to a judge or a police officer who does not follow the law.

According to a July 1, 2009 Time Magazine article entitled Coming Soon: A Breathalyzer in Every Car.

[A] new highway bill pending before Congress would instruct all 50 states to require all motorists convicted of driving under the influence to equip their cars with interlock systems that shut down a vehicle when a measured amount of alcohol is detected. 

Here is what MADD has to say about this;

Dear MADD Supporter,

Can you picture a nation without drunk driving?  Your assistance is urgently needed to help realize this vision by ensuring that many of the provisions of MADD’s Campaign to Eliminate Drunk Driving become federal law.  Legislation has been introduced in the U.S. House of Representatives which seeks to require states to undertake a number of reforms to combat drunk driving consistent with the Campaign.  The bill, known as the Surface Transportation Authorization Act of 2009, would improve highway safety by implementing the Campaign nationally.

In the 1980s, MADD fought successfully to establish 21 as the minimum legal drinking age.  In the 1990s, MADD prevailed again in its fight to set .08 as the per se BAC limit.  Now, in 2009, we MUST put the U.S. on the path towards eliminating drunk driving.  To do this, we need your help and your voice.  You must act immediately! 

Are you up to the challenge?  Then call your Member of Congress and say that you support the impaired driving safety provisions in the Surface Transportation Authorization Act of 2009.  With your help, we CAN eliminate drunk driving. 

There are many interesting things about this new campaign.  First, it would seem that MADD has tacitly acknowledged that their prior multi-decade campaign of slowly and gradually increasing penalties for convicted drunk drivers has failed to reduce the number of drunk driving arrests, which in Michigan remains consistent at around 45-50 thousand arrests per year.  Thus, despite the fact that Michigan’s drunk driving laws get tougher almost every year, the number of  drunk driving (DUI/OWI) arrests has stayed about the same.  Hopefully judges will take notice and recognize also that ever more stringent punishment for drunk drivers, including mandatory jail time, simply has little if any deterrent effect.  This is why we at the Barone Defense Firm stress treatment for our clients as we believe this will better lead to the elimination of repeat drunk driving offenders.

Another thing that is worth knowing is that ignition interlock devices simply don’t work all that well.  A big problem with them is that they use what are called fuel cells to measure the presence and amount of alcohol in a person’s breath, and fuel cells, and therefore ignition interlocks are non-specific for beverage alcohol.  According to Dr. Michael Hlastala’s upcoming DWI Journal: Law and Science article entitled: Limitations of Transdermal Alcohol Testing:

The fuel cell converts electrochemical energy stored in the ethanol molecule into electrical energy manifested as an electrical current.  Fuel cells are not specific for ethanol (ethyl alcohol).  They react with any chemical having an hydroxyl group (-OH), and will thus react to chemicals other than ethyl alcohol, but with a different sensitivity.  Examples of chemicals that can get into the body by inhalation of fumes or skin contact are: methyl alcohol (wood alcohol – used to produce bio-diesel fuel), n-propanol (cleaning solvent), isopropyl alcohol (rubbing alcohol, metabolically produced in uncontrolled diabetes), butyl alcohol, butoxyethanol (strong cleaning agent), ethylene glycol (antifreeze), propylene glycol (used as food supplement) and glycerine (used in many soaps).

How would you feel if you couldn’t get to work on a cold wintery morning because your windshield wiper fluid set off your car’s interlock?  This is exactly what happened to one of our clients, and what will happen time and again across the country if this bill goes into law.

Another significant issue is that it is currently lawful to drink and drive, and unless we reenact prohibition along with this interlock bill there is no way to fairly administer the law.  Think about it this way; do we set the interlocks so that they shut down cars when a delivered breath sample is .08 or above?  If so, then the .08 must mean something, fuel cells are known to produce unreliable quantitative results.  This is why in Michigan the results of the road side preliminary breath testing devices are inadmissible in most instances.  The fuel cell is simply a screening tool to help the officer determine if alcohol has been consumed, in other words to make a qualitative (presence) rather than quantitative (amount) measurement.  This is why I say the only way to administer the ignition interlock law is to make it zero tolerance across the land.  No more drinking a glass of wine at dinner and driving home.

Also, what if the driver has “one for the road” but is .05 when he leaves the bar, but is .09 just before he hits and kills someone?  Is the interlock company going to be liable for this death or is the car manufacturer going to be liable?  After all, the car’s interlock told the driver he was ok to drive.  Otherwise, the driver will have to blow into the interlock every 15-30 minutes just be sure he’s not above the limit.

Then there is the increased cost.  When all of the auto manufacturers are going bankrupt or have other serious financial issues, is this really the time to require technology that will increase a vehicle’s cost?  And who is going to monitor the interlocks?  They will need to be calibrated from time to time, and this all costs money.  I’m old enough to remember the exhaust law we once had where each year you had to bring your car to the mechanic, pay fifteen bucks and have them “certify” that your car didn’t spew exhaust fumes.  This law was a monumental failure and was soon revoked.  Are we now going to have to take our cars each year to a state run facility and have our interlocks checked?

Finally, Michigan all ready has in place an ignition interlock law.  I’ve written about Michigan’s Super Drunk Law previously and talked about some of these issues in that article.

I hope that after reading this you will call your Congress man or woman and tell them to vote “no” on MADD’s new mad attempt to impose prohibition on all of us, and in so doing, increase the cost of our automobiles.  Are you up for the challenge?

 News Release:

Michigan Legislators Pass Draconian New “Super Drunk” Law

 Contact:      Patrick T. Barone, Esq.

 For Immediate Release

Lansing, Michigan (January 9, 2009) – On December 19, 2008, Michigan Enrolled Senate Bill 1134 passed both houses of Michigan’s Legislature, and is now awaiting the Governor’s signature. Known as the “Super Drunk” bill, this legislation amends several sections of Michigan law, and most notably adds a new crime for drivers with a bodily alcohol content (BAC) of .17 or greater.  Under this new statutory definition of operating while intoxicated these high BAC drivers are required to have a breath alcohol ignition interlock device (BAIID) placed on their vehicle.  This new law will not take effect until October 31, 2010.

Under the bill high BAC drivers are subjected to other more punitive sanctions.  For example, a first offense high BAC drunk driver’s license is suspended for one year.  The first 45 days of this year is considered a “hard” suspension, meaning absolutely no driving is allowed.  During the remaining 320 days the offender is entitled to restricted driving privileges, but must have an ignition interlock device placed on their car during this period.  Fines are increased to $200.00 – $700.00, and potential jail time is increased from up to a possible 93 days to as much as 180 days. The court must also order a mandatory minimum one-year alcohol treatment program.  The high BAC sanctions only apply to first offenders – repeat offender sanctions remain unchanged.

The bill proposes to create a second new offense related to the monitoring of the BAIID.  Accordingly, any violation of the driving restrictions imposed, or operating or attempting to operate a vehicle with a BAC of 0.025 or greater, results in a doubling of the license penalty.  Thus, offenders who violate their license restrictions will have a second set of identical driver license sanctions imposed, meaning a new 45 day period of no driving followed by 320 days of restricted driving with the BAIID.

Once installed, a typical BAIID requires a driver to blow into the device when they first start their car, and then retest within the first 5 to 15 minutes.  The BAIID will not allow the car to be started if it detects a BAC of .025 or greater.  When driving for longer periods of time the driver must also test about twice every hour. The device records each test and any violation is reported to the monitoring agency. If during operation it detects a BAC of greater than .025, then a warning signal will be emitted, and after coming to a complete stop the car cannot be re-started until the driver has a BAC of less than .025.

Patrick Barone, a Birmingham, Michigan lawyer specializing in drunk driving defense said that .025 BAC is equal to about one drink of alcohol for a person weighing approximately 160 pounds.  “But that’s probably not the reason they choose .025.  Illinois’ new BAIID law uses a slightly lower number of .024, and this is really the lower limit of the BAIID’s ability to measure breath alcohol.  Anything less than that could literally be nothing but electronic noise,” said Barone who teaches a class called “Drunk Driving Law and Practice” at the Thomas M. Cooley law school.

The law also makes drunk driving more expensive because it is the driver’s responsibility to pay the cost of installing the BAIID as well as the monthly fees required to maintain it.  While the state does not regulate the cost of ignition interlock devices, the Legislature had previously limited the amount that can be charged to people on low-incomes to a maximum of $1.00 per day.  The new law increases this minimum to $2.00 per day, and for certain low income drivers the installation fee is waived.  Drivers that do not meet the low income deferment requirements must pay the BAIID vendor’s usual rates.  In Michigan installation fees are around $50.00, and depending on the vendor, monthly fees can be as high as $100.00 month.  For this reason, according to Barone, “the BAIID laws are expensive, terribly onerous and unreasonably punish drivers.”

In passing this legislation, Michigan’s lawmakers stopped short of matching statutes recently enacted in Illinois requiring a BAIID device be installed for all offenders.  The Illinois law, which went into effect earlier this year, requires the BAIID as a condition of driving even before there has been a conviction.

Like Illinois, the Michigan law was actively supported by MAAD as it is their belief that the BAIID requirement saves lives.  Barone has a different viewpoint.  “The drunk driving laws were previously amended to allow the BAIID as a condition of bond or probation, so the courts have already been given this tool.  Considering this, one wonders why the new law was necessary.  It looks more like pandering to MADD than an honest effort to make Michigan’s drivers safer.”  For this reason Barone believes that this new bill was ill-conceived, and is likely to have very little, if any, impact on safety or recidivism.

The new law also provides for a sanction of impoundment where a person required to have a BAIID is stopped in a car without one. If this non-BAIID vehicle is individually or jointly owned, the vehicle registration plate will be confiscated and destroyed.  A new temporary plate will be issued and the Secretary of State will be notified. This is considered to be an “offending vehicle” sanction, meaning the owner and not necessarily the driver of the car remains liable for all expenses incurred in the removal and storage of the vehicle.

In a rather peculiar change, the owner or person in charge or control of a vehicle who knowingly allows an intoxicated person to drive that vehicle must have that vehicle immobilized for 90 to 180 days.  Immobilization can be avoided, provided a BAIID is installed and the owner or person in charge or control of the vehicle obtains a restricted license from the Secretary of State.  However, the court may reinstate vehicle immobilization if the ignition device is tampered with, circumvented, disabled, or the person’s restricted license is suspended or revoked.

It is unclear if this new law will truly impact many of Michigan’s drunk drivers.  Under the current law it is quite common for first offense drunk drivers to plead guilty to the lesser included offense of impaired driving.  According to Barone the new law will either have no impact, or severely clog the courts with unnecessary trials. “It seems plausible that first offenders will commonly be offered the option of pleading guilty to traditional operating while intoxicated or operating while visibly impaired, thereby avoiding this BAIID requirement altogether.  If such pleas are not offered, then it is likely that the court system will be clogged by more drunk driving trials.” 

Barone thinks that it is also likely that more hearings will be scheduled contesting faulty BAIID results, further clogging court dockets.  In his two-volume treatise titled Defending Drinking Drivers Barone writes about the different ways a BAIID can produce a false result. “These devices use alcohol-specific electrochemical fuel sensor technology which is known to respond alcohols other than beverage alcohol. For example, I recently handled a case where the driver’s BAIID went off because he was using too much wiper fluid.  The chemicals in the fluid caused a reading of .06” said Barone.

About the Author:

Patrick T. Barone is the principal and founding member of the Barone Defense Firm whose practice is devoted exclusively to the defense of drinking drivers and license restoration matters.  He is the author of two books on the topic including the highly respected Defending Drinking Drivers (James Publishing) and an Adjunct Professor at Thomas M. Cooley Law School where he teaches “Drunk Driving Law and Practice.”  He can be reached at (248) 594-4554 or on the web at www.BaroneDefenseFirm.com