The Rochester Post has just reported that the number of people drunk driving in Rochester Michigan is down significantly this year.  According to the article:

Data collected over the past two years shows a pattern of decline for drivers caught operating while intoxicated, said Rochester Police Chief Steve Schettenhelm. According to the city’s records, there were 161 such arrests in 2008, an average of about 13 per month. In 2009, there were 132, or approximately 11 per month. As of this month, there have only been 31 in 2010, which comes out to about six per month.

The article is light on explanations for the decrease in drunk driving in Rochester Michigan:

“Arrests are down so far this year. There can be a number of reasons for this,” he said. “Traditionally, arrests pick up in the summer months. So we are down some for the year, but we will have to wait and see if this is a consistent trend.

“The economy may have an effect on the number of people who are out drinking and driving,” he said.

Rochester Detective Paul Matynka said that because of the city’s nightlife amenities, drunken driving arrests generally increase over the weekends.

There is also a claim that although the arrests are down, it has no impact on the police budget.

Schettenhelm said that while the Rochester Police Department does get a percentage of the court fines paid by drunken driving offenders, the decrease in arrests over the past year and a half hasn’t affected revenues.

“We do receive some funds from the court in terms of fines … (but) the money is not really a consideration, considering the total police budget,” he said.

Previous posts have addressed this issue, and suggest that there are many possible causes for fewer Michigan DUI arrests.  For an article discussing the decrease in DUI arrests in Michigan in detail, and offer several explanations, please see:

• Michigan Drunk Driving Arrests Continue Yearly Decline

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!

Fewer Police Fewer DUI Arrests

The number of Michigan drunk driving arrests fell almost 30% between 1999 and 2008, the last year for which statics are available.

The question many are looking to answer is whether or not the decline is a good thing or bad.  In a recent Detroit News article, Laura Berman suggests:

You might think that Michigan’s long-running series of unfortunate events would drive Michigan residents to drink. Depressed and with time on their hands, these drinking and sometimes drunken residents should, logic suggests, create a spike in the state’s drunken driving arrests.

So the question becomes: is the decrease in arrests because MADD’s message has finally gotten across, and fewer people are actually driving drunk, or is it because fewer police are out arresting drunk drivers?

According to the Detroit News, many reasons have been suggested for this yearly decline in Michigan drunk driving arrests, including the fact that “Michigan has lost 2,168 law enforcement positions since 2001, creating gaps in enforcement that enable people to drink and drive without getting caught.”

In fact, when the statics are released, it is expected that they will show that Michigan drunk driving arrests fell an additional 10% from 2008 to 2009.  It is very possible that this unprecedented decline is from even deeper cuts to police forces throughout the state.  Even the city of Plymouth has indicated they may cut up to half of their police force.  Monroe is also set to make deep cuts.  The same is true throughout the State.

According to the Wall Street Journal, this trend to cut police forces to save money is a nationwide trend.  For example:

Since January, Tulsa has laid off 89 police officers, 11% of its force. That has pushed the city to the forefront of a national movement, spurred by hard times, to revamp long-held policing strategies.

The Journal further reports:

Arrests citywide were down about 25% in February and March, compared with the previous year. Through the end of March, county prosecutors, who get most of their cases from Tulsa police, had filed 20% fewer felony cases than last year.

If the trend holds, that could indicate the city is safer. But some officers believe arrests are down because the detective corps was cut by nearly 20%, so fewer crimes are being investigated.

It certainly stands to reason that the same is true for Michigan drunk driving arrests.  With fewer police on the streets one would expect DUI arrests to decline.

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!

Intoxilzyer 8000

Answer: Scientists involved in the prosecution of drunk and drugged driving and global warming both use science and scientific principles to make their case.  Some also believe that both misuse science and hide the truth in order to mislead the public.

Regarding global warming this point is made in an article entitled Secrecy in science is a corrosive force recently posted to the Financial Times web site by reporter Michael Schrage[i].  In this article Mr. Schrage asserts that “[S]cientists aggressively promoting pet hypotheses often relish the opportunity to marginalize and neutralize rival theories and exponents.” 

Interestingly, this is exactly what happens in the court room when drunk driving cases are tried.  The difference is that the scientists involved in drunk driving are not called “climatologists” they are called “forensic scientists” and their pet hypotheses do not involve global warming, but instead involve things like breath and blood testing and alcohol metabolism.  And, while forensic scientists do not have the U.N. to advocate on their behalf, they do have prosecutors and sometime even judges, who actively seek to marginalize and neutralize rival theories concerning how breath and blood testing is sometimes inaccurate and unreliable or why retrograde extrapolation is simply guesswork.

In his article Mr. Schrage states that “[S]ecrecy, not privacy, is at the rotten heart of this bad behavior by ostensibly good scientists.”  To attorneys involved in the defense of drinking drivers this statement sound eerily familiar.  All too often it seems that police agencies and state forensic laboratories do everything in their power to keep secrets about what they do behind closed doors.  Take for example the source code debate where CMI, the manufacturer of the breath test machine known as the Intoxilyzer, is doing everything possible to keep the inner workings of their machines secret.

The same is true of Borkenstein Alcohol Highway Safety Class offered by Indiana University.  This is the course where forensic scientists around the country are taught the science behind breath and blood testing and alcohol metabolism.  Defense attorneys are not allowed to attend this class.  In Michigan, defense attorneys are likewise not allowed to take the training given to police officers relative to using the DataMaster, Michigan’s breath testing machine.  Interestingly, prosecutors are allowed into both classes.

Mr. Schrage goes on to ask the following series of rhetorical questions relative to global warming and all of them apply equally to the science ostensibly behind the prosecution of drunk driving cases:

Why should research funding institutions and taxpayers fund scientists who deliberately delay, obfuscate and deny open access to their research? Why should scientific journals publish peer-reviewed research where the submitting scientists have not made every reasonable effort to make their work – from raw data to sophisticated computer simulations – as transparent and accessible as possible? Why should responsible policymakers in America, Europe, Asia and Latin America make decisions affecting people’s health, wealth and future based on opaque and inaccessible science?

It is impossible for a defense attorney to get inside the Michigan State Police Toxicology Laboratory where blood testing is performed on ALL drunk driving cases in Michigan.  It is equally impossible to obtain the “research” and raw data on which Michigan’s forensic scientists base their opinions about such things as the reliability of their test results.  They refer to this research as “proprietary” and therefore not discoverable in a criminal case.

There have also been instances where scientists who have researched breath and blood testing and written articles that take a position contrary to the majority opinion about the reliability of these tests have been denied access to peer-reviewed journals.  I’m quite sure Mr. Schrage would agree that this all sounds an awful lot like the global warming debate.

A critical point made by Mr. Schrage is this: “The issue here is not about good or bad science, it is about insisting that scientists and their work be open and transparent enough so that research can be effectively reviewed by broader communities of interest. Open science minimizes the likelihood and consequences of bad science.”

Again, the same is true in drunk driving cases where open science would minimize the likelihood of wrongful conviction.  Unfortunately, the science behind drunk driving cases is anything but open and transparent.  Instead, the goal in the vast majority of police agencies and forensic laboratories has been to provide defense attorneys with as little information as possible. 

Just as Mr. Schrage argues relative to global warming; in the prosecution of drinking drivers “when doing important research about the possible commission of crime scientists should have nothing to hide. Their obligation to the truth is an obligation to openness.”  The problem is that by excluding defense attorneys such scientists raise at least the appearance of impropriety.

The theory of global warming is not very old, and in part it is the newness of the theory that causes so much debate.  The theory has not been vetted the way so many other theories have been throughout the ages.

drunkometer - an early DUI breath test device

Just like global warming, breath and blood testing in drunk driving are relatively new sciences.  As Pennsylvania DUI Defense Attorney Justin McShane pointed out in his recent blog:

Breath testing really came into widespread use in 1954 when Professor Robert F. Borkenstein of Indiana University invented the Breathalyzer.  This was the first practical instrument for testing breath alcohol and a great improvement over the somewhat older Drunkometer, which required frequent re-calibration.

The forensic science behind blood testing is even “newer” than Breathalyzer technology.  Blood testing for alcohol drunk driving cases typically uses a process called headspace-gas chromatography (HS-GC), which did not become popular in the United States until 1967.

The technique of gas chromatography was originally invented by Professor G. Machata of the University of Vienna in Austria. The proper instrumentation for the practical realization of the technique was developed by Perkin-Elmer’s German affiliate, using a unique pressure-balanced, time-based sampling of the headspace of the thermostatted sample vials. The first instrument, the Model F-40 was introduced in the fall of 1967; it was then followed by the Model F-42 in 1975 and the Model F-45 in 1978.

There is little doubt that the newer the science the more need for debate, and while there is little debate in the scientific community about gas chromatography, this does not mean that there is no need for openness.

There same cannot be said regarding breath testing in drunk driving cases where considerable debate remains.  Ironically, most state’s breath testing programs are even less transparent than what occurs with most forensic laboratories.

An open question with drunk driving is identical to the open question in global warming.  If the scientists have nothing to hide, why are they behaving as if they do?

Michigan's Forensic Crime Lab near Lansing

In Michigan nearly all blood testing is done by one central lab run by the Michigan State Police.  This “whole blood” testing is performed at the State Lab using a process called headspace gas chromatography (GC).

Rarely in Michigan do DUI lawyers see non-whole blood or “serum” testing.  If serum testing is performed in Michigan, it is almost always only when there has been an injury accident.  Serum blood tests are also seen in OWI causing death cases.

In instances where a DUI accident has occurred the injured driver is usually taken to the hospital where his blood is drawn before any medical procedures are performed.  The blood is then quickly screened to determine a rough blood alcohol level.  This blood test is not intended to be used in the court room.

This hospital serum test is medically important insofar as it assists the medical personnel in determining what medical procedures can and cannot be performed.  This serum test is necessary because some medications and medical procedures cannot be performed where alcohol is present, and especially when high levels of alcohol are present.

Serum Blood Tubes

Serum blood testing was never designed to be used in court for prosecution purposes in part because it is forensically unreliable.  The reasons for this unreliability have been written about previously on WinBackYourLife.  Additionally, serum blood tests are always higher than whole blood tests.

In Michigan DUI cases, even if a serum or hospital test is performed, a second blood draw will occur, and this blood will be sent to the state lab for headspace GC testing.  It is almost never the case in Michigan where a person arrested for DUI faces prosecution based only on a hospital blood test.

This fact is not the case in all states.  In Pennsylvania for example, hospital blood tests are much more common.  Because serum tests are so unreliable, and therefore unfair to the DUI accused, attorney Justin McShane decided to take on the hospitals, and his efforts resulted in the hospitals deciding to stop testing blood in DUI cases.

You can read about serum testing and about this excellent legal work by the McShane Law Firm by visiting his blog entitled “WellSpan is to be commended, but why people who have been convicted for decades of a DUI should be upset”

If you have been charged in DUI in Michigan and your blood was draw, please contact the Barone Defense Firm today for your FREE Case Review!

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.