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Thread: CA courts ignore facts...

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    Regular Member TechnoWeenie's Avatar
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    California Supreme Court Admits, Ignores Breathalyzer Flaws
    By Robert Farago
    July 15, 2009

    The California Supreme Court has entered a ruling allowing motorists accused of driving under the influence of alcohol (DUI) to question the reliability of the breathalyzer machinery used to secure convictions. The decision, however, leaves room for the conviction of drivers even when the machine is proved unreliable. The high court recognized that a breath testing machine does not directly measure the alcohol content in a person’s bloodstream. Rather, the device estimates from a sample of breath how much alcohol might be present in the blood using a conversion factor called the “partition ratio.” California’s breathalyzer machines assume that the amount of alcohol in 2100 milliliters of breath is equal to the amount of alcohol in 1 milliliter of blood.


    “Simply put, the machines all automatically convert the amount of alcohol tested in the tiny amount of breath taken from the suspect,” California DUI attorney Lawrence Taylor explained. “The internal computer multiplies the amount by 2100 — using the average ratio of alcohol in blood to alcohol in breath — to estimate the amount of alcohol in the suspect’s blood. Problem: We are not all average. And ratios vary from 1300:1 to 3500:1.”

    Timmie Lance McNeal appealed his conviction for driving after his breath test showed a reading of 0.10, but the lower court refused to consider scientific evidence that at least one-third of the population has a partition ratio different from the one presumed by the breathalyzer machine. For that reason, he argued, he should not have been automatically presumed to be under the influence based solely on the machine’s readout. McNeal was convicted.

    In 1989, the state legislature codified the partition ratio of 2100:1 and made it a “per se DUI” offense to have a breath test reading of .08, regardless of whether the motorist was actually intoxicated or not. This crime would be treated separately from “general DUI” which requires a motorist actually to be intoxicated.

    “The legislature passed section 23152(b) to facilitate the prosecution of drunk drivers,” Justice Carol A. Corrigan explained in the unanimous ruling. “The creation of a per se DUI offense did away with the need to prove the defendant was actually impaired.”

    The court admitted that the legislature’s presumption of a certain ratio could, in some cases, result in incorrect measurements.

    “If, however, the defendant’s own partition ratio at the time of testing is lower than the standard ratio, conversion of the breath result using the statutory formula produces an artificially high measure of his blood alcohol,” Corrigan wrote. “2100-to-1 ratio overstates the actual amount of alcohol in his blood. For someone with an extremely low ratio of 1100 to 1, for example, use of the 2100-to-1 partition ratio would overstate blood-alcohol content by almost 50 percent.”

    With this in mind, the supreme court held that partition ratio evidence may now be raised as a defense to a general DUI charge. The court, however, in previous rulings made it clear that motorists could be convicted of per se DUI regardless of any scientific evidence regarding actual intoxication. The high court cited Lawrence Taylor as an authority on the subject three times in its decision, but Taylor blasted the decision as irrational.

    “It takes a supreme court ruling to allow a citizen accused of DUI to defend himself with established scientific truth,” Taylor wrote. “But in a typical retreat from logic, the court limited the admissibility of partition ratio evidence to defending against the charge of driving under the influence — not to the accompanying charge of driving with .08 percent blood-alcohol concentration (BAC). So you can use scientific facts that the BAC reading is faulty to defend yourself against the BAC-based presumption of being under the influence — but not against the charge that your BAC was .08 percent or higher".
    http://www.thetruthaboutcars.com/cal...halyzer-flaws/

    Now, read that carefully...


    ...motorists could be convicted of per se DUI regardless of any scientific evidence regarding actual intoxication.


    So, regardless of what your actual BAC is, or any explanation thereof, if you EVER read .08 on a PBT (breathalyzer) then you're guilty of DUI. Scientific fact be damned.
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    In re: justice system

    This will appear only marginally on point, but I seem to recall a decade or so ago that a prosecutor (Texas?) argued on appeal that proof of actual innocence was no reason to overturn a jury verdict. Don't know how the case was resolved, but as a non-lawyer I was appalled.

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    "Happiness is a warm shotgun!!"
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    Why would anyone submit to a field sobriety test for any reason or do a breathalizer test for that matter. All a field sobriety test does is give the LEO more reasons to arrest you. Simply refuse to do anything except for a blood draw and theninsist ona 2nd legal blood draw that the LEOs do not get. In my opinion any one that submitts to a field sobriety is eiither grossly uninformed about thier rights or drunk enough to not remember them and deserve the DUI. Disclaimer IANAL, I do not drink and drive and drunk drivers should be punished.



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    Regular Member SFCRetired's Avatar
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    "Happiness is a warm shotgun!!"
    "I am neither a pessimist nor a cynic. I am, rather, a realist."
    "The most dangerous things I've ever encountered were a Second Lieutenant with a map and a compass and a Private who was bored and had time on his hands."

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    SFCretired you are correct about refusing the breathalizer test and loosing your DL for an extended period of time.

    I should have been a little clearer and said a field breathalizer test, the one that they give you in the field is usually not legal in most states any way.

    I am mostly amazed that the vast majority of the Sheeple do not know thier rights or if they do they are too afraid to stand up for them. Like I said I have no sympathy for drunk drivers.

    Disclaimer IANAL, know the laws in your State.

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    Regular Member autosurgeon's Avatar
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    In MI you can request a blood test. Which means they take you to the hospital and the lab tests your blood.
    Anything I post may be my opinion and not the law... you are responsible to do your own verification.

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    Regular Member Alexcabbie's Avatar
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    While laws vary from state to state, SCOTUS has recently ruled that "laboratory certificates" and other such affadavits could NOT be used in evidence in any type of criminal case, but rather the technician who processed the evidence must be present for examination and cross-examination under the "right to confront" rule.

    Predictably this has led to lots of pi$$ing and moaning from prosecutors about how they are going to have to drop marijuana cases, etc. I say, GOOD!! All this ruling means is that if you are going to arrest someone and bring the case to court, it better be for something damn important and not some kid with a couple joints or a guy with that ridiculously low .08 BAC who is STILL fine to drive. (but I gotta say as a cabbie that the .08 has been a boon to business!).

    This reminds me of the Miranda case which led to the police having to read people their rights. Ernesto Miranda's conviction was thrown out, but he was re-tried and convicted without the (allegedly) coerced confession, which means the cops didn't need to obtain it anyway, which means the Miranda rule does NOT "handcuff the police"; and neither will this one. It will similarly force them to do their jobs the right way. Good.

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    Regular Member SFCRetired's Avatar
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    "Happiness is a warm shotgun!!"
    "I am neither a pessimist nor a cynic. I am, rather, a realist."
    "The most dangerous things I've ever encountered were a Second Lieutenant with a map and a compass and a Private who was bored and had time on his hands."

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    In WI, we have the "Implied Consent Law" which basically states by accepting the privilege of driving, you have waivedseveral of your rights. That's what your signature on the front is confirming!

    In the past Ihave contacted a few of ourlegislators about trying to get some protections afforded to our citizens to combat police abuse.
    In WI, if youshow under the legal limit on the field breath tester, you can still be arrested. You will then be taken for a blood draw and you have no legal ability to refuse a blood draw in WI. If you refuse a blood draw in WI, itwill still be done against your will. And you still get charged with a refusal! If I refuse, that should be the end of it! But nope, Police are allowed to force a draw and the hospital does it against your will anyways.
    I have a huge needle-phobia, Iwill get very violent and end up hurting someone very bad if this tactic is ever forced on me.

    I do not drink, because I just do not care for alcohol. I have been stopped at night and forced to do a field sobriety test and blow into a breathalyzer. The excuse used was "it is Policy if we make any stops after midnight" I knew thisto be complete BS! Butwhat other choices did I have? refuse testing and get charged anyways? Submit to a blood draw when I will not tolerate a needle puncturing my veins to try and prove my innocence?

    Now we have a "Drugged Driver" law floating around in bill form which will take away more rights.

    Now I have something to worry about, I legally use a narcotic pain medication due to a few failed spinal surgeries and other skeletal/nerve damage. So I get pulled over by a cop with a wild hair up his ass, he can now drag me for a blood draw against my will, they will find opiates in my blood several hours after any therapeutic effects have long worn off,and still be able to convict me under this new law even though the medication I use does not affect me in a euphoric or impairing way.
    The friggin FAA lets me fly a single engine airplane with non-paying passengers, butI cannot legally drive my truck on WI's roadways if this bill makes it to law!

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    Regular Member Alexcabbie's Avatar
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    I doubt they will be so active now that they are required by SCOTUS to present, not a certificate of analysis, but must actually produce the chemist/technician/etc who physically did the analysis. What with the strain on forensics labs these days I thimk the cops are going to have to be a great deal more selective in whom they yank over and/or arrest. Plus forensic tech retire or quit for greener pastures every day. Not to mention the expense of paying the tech OVERTIME to testify.

    Not that I want drunks on the road. I make my living on these streets and I have had several close calls involving obviously impaired drivers. But the current mania as to alcohol/drug enforcement is a classic example of what happens when stupidity links up with insanity.

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    I recall hearing many years ago about a guy in my home town in Ky, that got arrested for DUI. He had just left home for a night out and hadn't gone a mile from the house when he was pulled over for swerving accross thecenter line one time. Just before he left home he had gargled with Listerine. (Hot date I guess) The old codger that pulled him over use the BAT on him and the guy blew over the limit. HE HADN"T BEEN DRINKING. He fought the charge before the judge and recreated the event that took place by demonstration. He blew the BAT before gargling, then15 minutes after gargling blew it again. Got the same results that the cop did when he pulled him over. Judge gave him the benifit of the doubt and threw the DUI charge out.

    BTW, I don't think theBlood testing was available at that time. This was back in the late 60's early 70's.

    I don't think I could pass the field sobriety test. My balance isn't as good as it use to be and I'd fall down trying to walk that dang line, stone cold sober. Between old age stiffness and deteriorated balance, I stagger all the time when I walk.

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    Regular Member Alexcabbie's Avatar
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    Your pal's defense was what they used to call the "mouthwash defense". It is obsolete with today's technology. Boy are you ever dating yourself!

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    Founder's Club Member ixtow's Avatar
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    Since when does science and fact ever matter to bureaucrats and government?

    If you are surprised by this, then it must be quite shocking to finally wake up....

    I've been accused of DUI and have never had a drop in my life. In FL, simply 'failing' a sobriety test will get you convicted. No breathalyzer or BAC blood test, nothing.

    I'm sure you guys are sick of hearing about this, but... When I went to the academy, it was specifically taught that you should administer a sobriety test with dash-cam on, but aim your cam so the feet cannot be seen. From the knees up is best. Require your victim (yes, they used these very words) to walk on uneven ground, off of any paved surface, and look up in the air. Shine a light in their face, anything to throw off footing and equilibrium.

    Once they fail, DO NOT perform any kind of actual BAC test. It might provide evidence to the defense. In the absence of it, the video is all the evidence the judge needs; stumbling around off-road and blind. When the defense asks for BAC evidence, well, too much time had passed by the time you were booked, etc... The video stands on its own.

    Seen it happen hundreds of times.

    Fortunately, sobriety tests are voluntary here. When accused of it, I simply say the only BAC test I'll take is an official breathalyzer; not a mobile one. Never do the sobriety test. I eve saw a video where the officer deliberately tripped a clearly sober man, and the judge still found guilty based on the prosecution's argument that "a sober man would have seen it coming." Nothing about the officer putting his leg across/behind both of the defendant's legs and pulling him backwards with both hands... All on the video, right there for everyone to see... The whole class had a good laugh about that one.

    Who cares, I don't drink.

    The point is, they want convenience. If you make it difficult, they usually back off the false accusations because it is too much trouble. Predatory Police don't want to drag an obviously sober guy back to the station where some decent cop might take note of how frequently he brings in someone who blows a 0.00......

    They really think this stuff through.
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    ixtow wrote:
    SNIP They really think this stuff through.
    +10

    Of course they do. They've got all day long, every workday to think up creative ways to wring thetiniest degree of advantage out of a set of circumstances/fact pattern.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

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    I've only ever had a few drops, myself. Enough to know that I don't need any more headaches than I usually get. Unbeknownst to me, I was served champagne instead of Martinelli's when I played a wedding reception gig at age 13 or 14, only sipped, and ruined the rest of the gig. Then after I turned 21, I tasted some red cooking wine on a cork I pulled, another headache.

    I almost want to be pulled over for DUI without violating any VC, but I'd be choking back laughter the whole time rather than telling this story.

    I root beer! Give me a nice brew in a brown bottle and I'll let my hair down.

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