ALABAMA DUI ATTORNEY BLOG

Municipal Court Convictions Do Not Enhance Punishment Under 32-5A-191

alabamadui — Thu, 25 Sep 2008 15:47:00 +0000

Ex parte Arthur Felton Holbert

In re: Arthur Felton Holbert
v.
State of Alabama

No. 1070456.

Supreme Court of Alabama.

July 11, 2008

Petition for Writ of Certiorari to the Court of Criminal Appeals

Appeal from Morgan Circuit Court, CC-05-1386 and CC-05-1387; Court of Criminal Appeals, CR-06-1574.

LYONS, Justice.

Arthur Felton Holbert petitioned this Court for a writ of certiorari to review the decision of the Court of Criminal

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Appeals affirming his conviction for felony driving under the influence of alcohol (“DUI“), a violation of § 32-5-191(a)(2) and (h), Ala. Code 1975. We granted certiorari review to consider, as a material question of first impression, whether a prior in-state DUI conviction in a municipal court counts toward the total number of prior DUI convictions necessary to constitute the felony offense of DUI under § 32-5A-191(h). For the reasons discussed below, we hold that they do not, and we reverse the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History On March 22, 2005, a police officer for the City of Decatur arrested Arthur Felton Holbert for DUI, for violating Decatur’s open-container ordinance, and for carrying a pistol without a permit.(fn1) As to the DUI offense, the Morgan County grand jury indicted Holbert for felony DUI, a violation of § 32-5A-191(a)(2) and (h), based on numerous prior DUI convictions. Section 32-5A-191 provides, in pertinent part:

“(a) A person shall not drive or be in actual physical control of any vehicle while:

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“. . . .

“(2) Under the influence of alcohol;

“. . . .

“(e) Upon first conviction, a person violating this section shall be punished by [stating the penalty].

“(f) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by [stating the penalty].

“(g) On a third conviction, a person convicted of violating this section shall be punished by [stating the penalty].

“(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty].”

(Emphasis added.)

Before Holbert’s trial, the State proffered court records showing that Holbert had had four prior DUI convictions. These records reflected a 1981DUI conviction in the Cullman County District Court, a 1982 DUI conviction in the Hillsboro Municipal Court, a 1994 DUI conviction in the Morgan County District Court, and a 1994 DUI conviction in the Decatur Municipal Court. Holbert orally moved to dismiss the indictment because, he said, his prior DUI convictions in municipal courts cannot be counted toward the total number of

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prior DUI convictions necessary to enhance his current DUI offense to a felony DUI offense as defined by § 32-5A-191(h). Holbert specifically argued that in Ex parte Bertram, 884 So. 2d 889 (Ala. 2003), this Court held that only convictions under § 32-5A-191 count toward the number of prior convictions necessary to elevate a DUI offense to a felony offense under § 32-5A-191(h). Thus, Holbert argued that his prior municipal convictions do not count as prior DUI convictions for the purpose of enhancement under § 32-5A-191(h) because, he said, a municipal DUI conviction is a violation of a municipal ordinance and not a violation of § 32-5A-191. The trial court denied Holbert’s motion to dismiss.

A jury returned a guilty verdict on the felony DUI charge, and the trial court sentenced Holbert to five years’ imprisonment. The trial court then split the sentence and ordered Holbert to serve 18 months in prison followed by a 5-year probationary period. See § 15-18-8, Ala. Code 1975.

Holbert then appealed to the Court of Criminal Appeals, arguing that the trial court improperly denied his motion to dismiss the indictment and allowed the State to use his prior municipal DUI convictions to elevate his DUI charge to a

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felony offense under § 32-5A-191(h). Holbert contended in the Court of Criminal Appeals, as he did in the trial court, that pursuant to Ex parte Bertram, a municipal DUI conviction is not a conviction under § 32-5A-191 that can elevate a DUI offense to a felony offense as defined by § 32-5A-191(h).

The Court of Criminal Appeals affirmed the judgment of the trial court, without an opinion. Holbert v. State (No. CR-06-1574, Oct. 26, 2007), __ So. 2d __ (Ala. Crim. App. 2007) (table). In an unpublished memorandum, that court first noted that Ex parte Bertram addressed only out-of-state DUIconvictions and not municipal DUI convictions. The Court of Criminal Appeals then noted that, before this Court decided Ex parte Bertram, the Court of Criminal Appeals had addressed the relationship between municipal DUI convictions and § 32-5A-191(h) in McDuffie v. State, 712 So. 2d 1118, 1120 (Ala. Crim. App. 1997). The Court of Criminal Appeals quoted from McDuffie as follows in its memorandum:

“`The appellant further contends that the state should not have been allowed to introduce into evidence two of his prior D.U.I. convictions because, he says, they were convictions for violating a municipal ordinance, rather than convictions for violating § 32-5A-191, Code of Alabama 1975. He argues (1) that the language of § 32-5A-191(h) “refers to three prior violations of

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that provision as being a pre-requisite to being guilty of felony-DUI” (appellant’s brief, p. 8); and (2) that the provisions of a municipal ordinance might not be the same as those in the state statute and[,] thus, the use of any municipal convictions as any of the three prior convictions required by § 32-5A-191(h) would deprive him of proper notice of the charge he was being called upon to defend. We find no merit in these assertions.

“`Our examination of § 32-5A-191(h) reveals no language requiring that the prior convictions required for that section to be applicable be obtained under § 32-5A-191, as the appellant contends.’”

(Quoting 712 So. 2d at 1120.) The Court of Criminal Appeals then concluded: “Because Ex parte Bertram held only that out-of-state DUIconvictions do not qualify as prior convictions under Alabama law, it is distinguishable from McDuffie. Therefore, [Holbert's] argument is without merit.”

Holbert petitioned this Court for certiorari review of the Court of Criminal Appeals’ decision. We granted certiorari review to consider, as a material question of first impression, whether a prior in-state DUI conviction in a municipal court can be counted toward the total number of prior DUI convictions necessary to constitute a felony DUI offense as defined in § 32-5A-191(h).(fn2)

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II. Standard of Review “`This Court reviews pure questions of law in criminal cases de novo.’” Ex parte Morrow, 915 So. 2d 539, 541 (Ala. 2004) (quoting Ex parte Key,890 So. 2d 1056, 1059 (Ala. 2003)).

III. Analysis Holbert contends that the Court of Criminal Appeals erred in concluding that the trial court had properly denied his motion to dismiss the indictment, holding that a DUI conviction in a municipal court counts toward the total number of prior DUI convictions necessary to constitute a felony DUI offense under § 32-5A-191(h). Holbert asserts that under the plain language of § 32-5A-191(h) only prior DUI convictions for violating § 32-5A-191 can be counted toward those necessary to elevate a DUI conviction to a felony. Holbert

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contends that his prior DUI convictions in various municipal courts are not violations of § 32-5A-191; rather, he argues, they are violations of municipal ordinances and therefore do not count toward the number of prior convictions necessary to constitute a felony DUI offense under § 32-5A-191(h). Holbert acknowledges that in McDuffie the Court of Criminal Appeals held that its “examination of § 32-5A-191(h) reveal[ed] no language requiring that the prior convictions required for that section to be applicable be obtained under § 32-5A-191.” 712 So. 2d at 1120. However, Holbert then notes that five years after the Court of Criminal Appeals decided McDuffie, this Court decided Ex parte Bertram, which, Holbert argues, held that the plain language of § 32-5A-191(h) requires that prior convictions that elevate a DUI offense to a felony offense must be convictions for violations of § 32-5A-191.

In Ex parte Bertram, this Court granted certiorari review to address the issue “whether Subsection (h) of Section 32-5A-191 means for prior out-of-state convictions for driving under the influence of alcohol to count toward the total of convictions necessary to constitute the felony defined by that subsection.” 884 So. 2d at 890. This Court first noted well-established

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rules of statutory construction such as “`”[s]tatutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used.“`” Ex parte Bertram, 884 So. 2d at 891 (quoting Ex parte Jackson, 614 So. 2d 405, 406 (Ala. 1993), quoting in turn United States v. Resnick, 299 U.S. 207, 209 (1936)). This Court also noted that “`[o]ne who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute.‘” Ex parte Bertram, 884 So. 2d at 891 (quoting Clements v. State, 370 So. 2d 723, 725 (Ala. 1979), citing in turn Fuller v. State, 257 Ala. 502, 505, 60 So. 2d 202 (1952)).

This Court then held:

“We read Section 32-5A-191 according to these traditional, well-settled rules of statutory construction. At the very least in favor of the defendant before us, an eminently reasonable construction of this section is that the word conviction means conviction of violating this sectioneverywhere the word conviction appears within the section, including where the word conviction appears in Subsection (h) defining the felony. Such a construction would require that

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Subsection (h) be read to mean `On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty].’ The rules of statutory construction we have quoted require us to adopt this construction rather than the construction urged by the State to the effect that `On a fourth or subsequent conviction [of violatingany driving-under-the-influence statute of any state], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty].’ The construction urged by the State contains an internal inconsistency, extends the purview of the statute beyond its express text, and construes any ambiguity against the defendant and in favor of the State, all contrary to the traditional, well-settled rules of statutory construction.”

Ex parte Bertram, 884 So. 2d at 892.

Holbert contends that, consistent with the rationale of Ex parte Bertram, § 32-5A-191(h) cannot be interpreted to include DUI convictions from a municipal court because such convictions are not convictions for violations of § 32-5A-191.

The State contends that Holbert’s arguments are without merit because, it argues, the Court of Criminal Appeals’ decision in McDuffie has not been overruled or abrogated. The State also asserts that municipal DUI convictions count as prior DUI convictions under § 32-5A-191(h) because § 32-5A-191(h) does not expressly preclude consideration of prior

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municipal convictions. The State then notes that after this Court issued its decision in Ex parte Bertram, the Court of Criminal Appeals decided Hoover v. State (No. CR-04-0159, June 10, 2005), 926 So. 2d 1082 (Ala. Crim. App. 2005) (table), holding in an unpublished memorandum that municipal DUIconvictions count toward the number of prior DUI convictions necessary to constitute the felony offense of DUI as defined in § 32-5A-191(h). This Court granted certiorari review of the Court of Criminal Appeals’ decision in Hoover and then quashed the writ as improvidently granted. See Ex parte Hoover, 928 So. 2d 278 (Ala. 2005). Justice Stuart dissented from this Court’s decision to quash the writ, and the State contends that we should now adopt the reasoning of her dissent.

In her dissent, Justice Stuart stated, in pertinent part:

“I agree with the Court of Criminal Appeals that the holding in Ex parte Bertram should not be read to preclude a violation of a municipal ordinance for driving under the influence of alcohol from counting toward the felony of driving under the influence defined in § 32-5A-191(h). I dissented in Ex parte Bertram because I believe that the majority’s holding that the definition of the word `conviction’ as used in § 32-5A-191(h), Ala. Code 1975, to mean only a conviction for violating § 32-5A-191 is too limiting. To me the word `conviction’ as used in § 32-5A-191 means any conviction for driving under the

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influence of alcohol, regardless of whether the conviction is for a violation of § 32-5A-191(a) or for a violation of a municipal ordinance or another jurisdiction’s statute prohibiting driving under the influence of alcohol or a controlled substance, provided that the underlying conduct would have constituted a conviction for driving under the influence of alcohol or a controlled substance under § 32-5A-191(a), Ala. Code 1975.

“Here, the decision of the Court of Criminal Appeals properly limited the application of this Court’s holding in Ex parte Bertram. Because I maintain that this Court needs to revisit its holding in Ex parte Bertram and redefine the word `conviction’ to include any conviction for driving under the influence of alcohol that satisfies § 32-5A-191(a), Ala. Code 1975, I would have affirmed the judgment of the Court of Criminal Appeals and overruled this Court’s holding in Ex parte Bertram. Thus, I respectfully dissent from the majority’s decision to quash the writ.”

Ex parte Hoover, 928 So. 2d at 280.

In sum, the State contends that the Court of Criminal Appeals properly upheld the trial court’s use of Holbert’s municipal convictions to elevate Holbert’s DUI offense to a felony under § 32-5A-191(h) because, it says, McDuffie and Hoover hold that municipal DUI convictions can be used to enhance a subsequent DUI offense.(fn3)

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Under this Court’s holding in Ex parte Bertram that § 32-5A-191(h) should be read as stating “`On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty],’” 884 So. 2d at 892, we must conclude that, independent of § 32-5A-191(o), a DUI conviction in a municipal court does not count toward the total number of prior convictions necessary to constitute a felony DUI offense as defined in subsection (h) because a municipal DUI conviction is not a conviction for violating § 32-5A-191 but merely a conviction for violating a municipal ordinance. Thus, we decline the State’s invitation to overrule Ex parte Bertram, and we expressly overrule McDuffie, a decision of the Court of Criminal Appeals, to the extent that it is inconsistent with this holding.(fn4) As this Court held in Ex parte Bertram, the well-established rule of statutory construction stating that “`[n]o person is to be

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made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused,’” 884 So. 2d at 891 (quoting Clements, 370 So. 2d at 725), requires that § 32-5A-191(h) be read to mean that only convictions under § 32-5A-191 can be counted toward the total number of convictions needed to constitute felony DUI under § 32-5A-191(h).(fn5) Clements, 370 So. 2d at 725.

We recognize that many municipal DUI ordinances have adopted the language of § 32-5A-191. However, an individual convicted of violating a municipal ordinance has not been

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convicted of violating § 32-5A-191 merely because the ordinance adopted the language of § 32-5A-191. We note that the Court of Criminal Appeals recently and correctly held that, although a municipal DUI ordinance may have adopted the language of § 32-5A-191, the municipal ordinance and § 32-5A-191 set out separate offenses. See City of Decatur v. Lindsey, [Ms. CR-06-0806, June 29, 2007] __ So. 2d __, __ (Ala. Crim. App. 2007), writ quashed Ex parte Lindsey, [Ms. 1061673, Feb. 15, 2008] __ So. 2d __ (Ala. 2008). In Lindsey, the Court of Criminal Appeals held:

“[W]e note that the penalty provisions set forth in §§ 32-5A-191 and 11-45-9(b),(fn6) Ala. Code 1975, address different subjects. Section 32-5A-191(e), Ala. Code 1975, governs the fines and sentences that may be imposed for the State offense of DUI. Section 11-45-9(b), Ala. Code 1975, governs the fines and sentences that may be imposed for the municipal offense of DUI.“

__ So. 2d at __ (emphasis added).

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Based on the foregoing analysis, we conclude that the trial court erred in counting Holbert’s prior municipal convictions toward the total number of convictions necessary to constitute the felony offense of DUI under § 32-5A-191(h), and the Court of Criminal Appeals erred in affirming Holbert’s conviction for felony DUI.

IV. Conclusion The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Cobb, C.J., and Woodall, Smith, Bolin, and Murdock, JJ., concur.

See, Stuart, and Parker, JJ., dissent.

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STUART, Justice (dissenting).

I respectfully dissent from the majority’s refusal to overrule Ex parte Bertram, 884 So. 2d 889 (Ala. 2003), and its decision to reverse the judgment of the Court of Criminal Appeals. The majority holds:

“Under this Court’s holding in Ex parte Bertram that 32-5A-191(h) should be read as stating `”On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty],”` 884 So. 2d at 892, we must conclude that, independent of § 32-5A-191(o), a DUI conviction in a municipal court does not count toward the total number of prior convictions necessary to constitute a felony DUI offense as defined in subsection (h) because a municipal DUIconviction is not a conviction for violating § 32-5A-191 but merely a conviction for violating a municipal ordinance.”

___ So. 2d at ___.

As I stated in my dissents in Ex parte Bertram and Ex parte Hoover, 928 So. 2d 278 (Ala. 2005), this Court’s definition of the term “conviction” as used in § 32-5A-191(h) to mean “conviction of violating this section” is too limiting. This narrow definition finds no basis in the statute, as a reading of the entire statute indicates that the legislature, when drafting this statute, considered several types of convictions for driving under the influence of

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alcohol or a controlled substance, in addition to convictions for violations of “this section.” For example, the legislature in § 32-5A-191(k) provided for fines collected for “violations of this section charged pursuant to a municipal ordinance.” Additionally, the legislature considered “generic” driving-under-the-influence-of-alcohol convictions in § 32-5A-191(p) when it provided that the motor-vehicle registration of a repeat driving-under-the-influence-of-alcohol offender, whose offenses result from various “generic” driving-under-the-influence-of-alcohol convictions, shall be suspended.

Furthermore, I note that when the legislature enacted the Alabama Driver License Compact Act, codified at § 32-6-30 et seq., Ala. Code 1975, it established a definition for “conviction” with regard to driving offenses, stating:

“(c) `Conviction’ means a conviction of any offense related to the use or operation of a motor vehicle which is prohibited by state law, municipal ordinance or administrative rule or regulation, or a forfeiture of bail, bond or other security deposited to secure appearance by a person charged with having committed any such offense and which conviction or forfeiture is required to be reported to the licensing authority.”

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Article II, § 32-6-31, Ala. Code 1975. The legislature further established the effect of a conviction under that Act, stating:

“a) The licensing authority in the home state, for the purpose of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to article III of this compact, as it would if such conduct had occurred in the home state, in the case of conviction for:

“. . . .

“(2) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle.”

Article IV, § 32-6-31, Ala. Code 1975. Thus, the legislature has provided in terms of driving offenses a definition of “conviction” that is much broader than the definition given that term by this Court in Ex parte Bertram. Clearly, the legislature, by the language it used in § 32-5A-191(k), § 32-5A-191(p), and § 32-6-31, Ala. Code 1975, intended that the term “conviction” as used in § 32-5A-191(e)-(h) — the sentence-enhancement statutes addressing repeated convictions for driving under the influence of alcohol or a controlled

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substance — means a conviction for conduct constituting a violation of § 32-5A-191(a), Ala. Code 1975.

In light of the foregoing, I would overrule Ex parte Bertram, and I would affirm the judgment of the Court of Criminal Appeals, holding that a conviction under a municipal ordinance for conduct constituting a violation of § 32-5A-191(a), Ala. Code 1975, can be counted toward the total convictions necessary to constitute the felony defined by § 32-5A-191(h), Ala. Code 1975. Therefore, I dissent.

See and Parker, JJ., concur.

_____________________
Footnotes:

FN1. Holbert was convicted of the charges of violating Decatur’s open-container ordinance and carrying a pistol without a permit and was sentenced accordingly. Those convictions and sentences are not before us.

FN2. In 2006 the legislature added § 32-5A-191(o), which provides:

“A prior conviction within a five-year period for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory shall be considered by a court for imposing a sentence pursuant to this section.”

(Emphasis added.) However, § 32-5A-191(o) is not applicable here because it became effective after the commission of the offense that led to Holbert’s indictment for felony DUI.

FN3. The State erroneously refers to McDuffie and Hoover as decisions of this Court. We assume that error to have arisen from the State’s failure to revise the brief filed before the Court of Criminal Appeals before submitting its brief to this Court as opposed to ignorance of the correct court from which these decisions emanated. We have treated the State’s contentions before us in a manner consistent with this assumption.

FN4. It is not necessary for us to overrule the Court of Criminal Appeals’ decision in Hoover because that decision has no precedential value. See Rule 54(d), Ala. R. App. P.

FN5. Justice Stuart’s dissent relies upon the language of § 32-5A-191(k) and portions of the Alabama Driver License Compact Act, § 32-6-30 et seq., Ala. Code 1975, to conclude that restricting the definition of the term “conviction” as used in § 32-5A-191(h) to a “conviction for violating this section” is too narrow. The dissent states: “[A] reading of the entire statute indicates that the legislature, when drafting this statute, considered several types of convictions for driving under the influence of alcohol or a controlled substance, in addition to convictions for violations of `this section.’” __ So. 2d at __. The plain language of § 32-5A-191(h) limits the definition of the term “conviction” to a “conviction for violating this section” and, if the legislature had intended the expansive reading urged by the dissent, embracing other sections of the Code, it could have very easily so stated. Further, the dissent would have us look to § 32-5A-191(k) and § 32-6-30 et seq. to construe § 32-5A-191(h) in favor of the State. As this Court noted in Ex parte Bertram: “`[T]he fundamental rule [is] that criminal statutes are construed strictly against the State. See Ex parte Jackson, 614 So. 2d 405 (Ala. 1993).’ Ex parte Hyde, 778 So. 2d 237, 239 n. 2 (Ala. 2000).” 884 So. 2d at 892.

FN6. Section 11-45-9(b), Ala. Code 1975, sets out the penalties that may be imposed for violating municipal ordinances and resolutions:

“No fine shall exceed $500.00, and no sentence of imprisonment or hard labor shall exceed six months except, when in the enforcement of the penalties prescribed in section 32-5A-191, such fine shall not exceed $5,000.00 and such sentence of imprisonment or hard labor shall not exceed one year.”

Slip Opinions

The Myth of Field Sobriety Testing as an Accurate Means to Base DUI Arrest

alabamadui — Sat, 21 Apr 2007 22:19:29 +0000

Separating Myth from Fact: A Review of Research on the Field Sobriety Tests

Spurgeon Cole&Ronald H. NowaczykClemson UniversityClemson, SC 29634

For over a decade Marcelline Burns, senior author of an often-cited 1977 NHTSA (National Highway Traffic Safety Administration) report and co-author of a 1981 NHTSA study, has traveled across the country extolling the virtues of the new and improved Field Sobriety test (FST) battery. The FST battery, as recommended by NHTSA, consists of three tests that are supposed to predict an individual’s blood alcohol (BAG) level. The tests are the Horizontal Gaze Nystagmus (HGN) test, the Walk-and-turn test and the One-leg stand test. None of these tests were specifically developed to identify BAG level, but have been used by law enforcement as indicators of driving impairment.NHTSA claims that the new version of the FST battery is scientific and can differentiate between impaired and unimpaired drivers. Until recently Burns’ testimony has gone unchallenged because few attorneys have the prerequisite understanding of statistics and test development to critically evaluate the NHTSA reports and effectively cross-examine NHTSA’s witnesses. Judges who have recently heard the “rFST of the story” are either not admitting the FST entirely or declaring it unscientific and not allowing police to use such terms as “tests” “results” “passed” or “failure.”² The prosecution in DUI trials has long held a decided advantage over the defense because of misconceptions about the effectiveness of the FST. Even defense attorneys have often accepted the premise that the FST has a measure of value in predicting driving impairment. In essence, NHTSA representatives have for over a decade enjoyed a free ride, but the road has recently developed some serious pot holes.

Research (Cole & Cole, 1991; Cole & Nowaczyk, 1994) and expert testimony offered by Cole & Nowaczyk have enabled judges and attorneys to better understand the limitations of the FST. In the past, NHTSA representatives have made outlandish claims as to the effectiveness of the FST even though these claims are not supported by their own research data. Because of these sins of omission and an occasional sin of commission, many myths have developed concerning the validity and reliability of the FST battery. The present article attempts to separate the facts from the myths.

Myth 1: The Field Sobriety TFST (FST) battery predicts driving impairment.

Fact: NHTSA never attempted to determine if the FST could predict driving Impairment. There is not a single study linking the recommended FST battery directly to driving impairment. The fact is, there never wilt be a simple roadside coordination task that can predict driving impairment. In one of NHTSA’s own reports, the following statement is made “… even valid, behavioral tests are likely to be poor predictors either of actual behind-the-wheel driving …or of accidents” (p. 2-7, Snapper, Seaver & Schwartz, 1981.) The stated goal in the 1977 study was to determine the relationship between FST and intoxication and driving impairment. However, they did not investigate the relationship between the FST and driving impairment.While there is a relationship between BAC level and driving impairment, the relationship is not likely to be a simple linear one. Therefore, it is not appropriate to assume that 1) if FST performance and BAC are related and 2) if BAC and driving Impairment are related, therefore, 3) FST and driving impairment are related. The relationships among these factors are too complex to assume a simple relationship as NHTSA might like you to conclude. There are comments among NHTSA researchers themselves alluding to this conclusion. In the 1981 NHTSA study, the researchers conclude,”…Individuals vary in alcohol tolerance, and infrequent drinker may be severely impaired at a BAC of 0.05, whereas a heavy drinker may show only minimal Impairment at this level” (p. 19). Dr. Moskowitz, one of the co-authors of both the 1977 and 1981 NHTSA studies, co-authored a later review of research on driving and alcohol, levels and concluded in a presentation at a scientific conference that,”… studies of driving simulator and on-the-road testing varied widely in results. This is due to the wide range of behavioral demands required by diverse control and visual search requirements” (Moskowitz & Robinson, 1987, p. 85). It is obvious that research is needed examining the relationship between FST and driving performance directly. That research has not yet been conducted. Dr. Burns herself indicated that the FST battery has its value in predicting BAG levels (Burns, 1984).

Myth 2: The FST battery is 80 percent accurate in differentiating between Individuals with BAC levels above or below .10.

Fact: The 1981 NHTSA study is the one cited by NHTSA as evidence of an 80 percent accuracy rate with the use of the FST battery. That study tested 296 subjects. Thirty-three percent of the subjects in the study had a BAC level of .00 and 34 percent were given dose levels calculated to raise BAG levels to .05. Another 11 percent of the subjects had BAG levels approximating .15, with some having BACs as high as .18. An officer should have no difficulty correctly identifying totally alcohol-free subjects as being unimpaired. Although slightly more difficult, one would expect officers to correctly classify subjects with BAC levels of .05 as being unimpaired. They should also have little difficulty correctly classifying subjects with the BAG levels of .15. In effect, 78 percent of the subjects fall into these extreme categories. Only 22 percent of the subjects were in the critical BAC range around .10. When the tests must differentiate in this critical range, they fail miserably. The overall accuracy rate of .80 is. misleading when over two-thirds of the decisions are “gimmies,” people with little or no alcohol or levels of .15.

For the remaining subjects, the officers have a 50/50 chance of being correct just on the basis of guessing. With the “easy” decisions and a guessing rate of .50, the reported 80 percent accuracy rate does not look exceptionally good. The question should not be how does the FST help officers correctly classify subjects 80 percent of the time. Instead, the question asked should be “Why doesn’t the FST do a better job helping the officers reach the correct decision?” In fact, the 1977 NHTSA report contains the following admonition, “Again, it should be pointed out that all the evidence from these data suggest it is unrealistic to attempt to use behavioral tests to discriminate BACS in a .02 margin around a given level” (P.41).

Myth 3: The FSTs are tests accepted by the scientific community.

Fact: Anastasi (1988) defines a test as being an objective and standardized measure of behavior, in the behavioral sciences, specific criteria must be met for a behavioral test to be accepted. The primary criteria include establishing the reliability, validity, and standardized administration of the test. Reliability and validity involve the consistency of test scores and the relationship of the score to the behavior it is designed to measure. Standardization includes uniformity of procedure in administering the test as well as the scoring of the test. For test scores to be meaningful the test conditions under which the tests are administered must not be causing differences in test scores. A test that has not been standardized or does not outline exact procedures for administration and scoring would not be considered a scientific test.

An important step in the standardization of a test is the development of norms and as the name suggests, a norm is the normal, average or typical score. Scores can only be interpreted by comparing them with scores obtained by others. There are no adequate norms for the FST battery. Common sense dictates and research supports the belief that motor skills decline with age. The FST, however, provides no basis for interpreting the results for individuals at various age levels. Although, manuals for DWl training suggest that tests should not be given to individuals who are 60 years of age or older or to a person more than 50 pounds overweight, it provides no information on how to evaluate the performance of a 45 year old versus a 20 year old (NHTSA, 1992).

Examiners cannot adequately interpret a score, unless they know the mean and the standard deviation of the distribution. NHTSA leads us to believe that the “norm” for a sober person would be a test score of 0; that is, no errors in performance. Yet, we know from the 1977 NHTSA study that all of the sober people in that study made at least one error. In fact, the mean number of error “cues” scored among the sober individuals was 10.56.3 Even if NHTSA’s claim that the FST is not a norm-referenced test, but rather a criterion-referenced test (that is, that a certain score (criterion point) indicates failure), there are no data indicating how this criterion score might vary as a function of age, gender, or motor coordination. Even, if such norms were produced from the NHTSA 1977 and 1981 studies, they would be of limited value given that they are based on laboratory testing, not testing in the field.

Myth 4: The field sobriety tests are reliable.

Fact: Reliability refers to the consistency n test scores. Reliability scores can range from a low of .00, which indicates no consistency, to 1 .00, which indicates perfect consistency. A test with a reliability value of .90 would indicate that 90 percent of the variability in the test scores is attributed to true differences in performance and 10 percent would be due to error. Most well-established tests (e.g., Wechsler scales for lQ, SAT, GRE) have reliability values greater than .90. The scientific community expects reliability coefficients to be in the upper .80s or .90s for a test to be scientifically reliable (Anastasi, 1958; Rosenthal & Rosnow, 1990).

The HGN, One-leg stand, and Walk-and-turn tests have test-retest reliabilities of .66, .72, and .61 respectively with a combined reliability of 77. This means that 34 percent of the HGN, 28 percent of the One-leg stand and 39 percent of the Walk-and-turn test scores can be attributed to errors in scoring. If 23 percent of the score on a breathalyzer depended on the manufacturer of the device, would it be allowed into evidence? Quite possibly the most telling lack of reliability of the FST battery is that when different officers tested the same subjects at the same dose level on different days, the reliability was only .59. This means that 41 percent of the score was due to error. These reliabilities are far too low to be useful in making important decisions. By contrast the reliability of the BAC machine readings was .96, indicating a high level of reliability.

Myth 5: The field sobriety tests are scientifically valid.

Fact: The 1977 NHTSA study reported the results in terms of validity coefficients. The validity coefficient for HGN, One-leg stand and Walk-and-turn tests was .67, .48, and .55 respectively with a combined validity coefficient of 67. For example, if the officer used the individual FSTs, the accuracy in predicting the BAC levels would increase by only 26 percent with the HGN test, 12 percent with the one-leg stand test and 16 percent with the walk-and-turn test. If all three tests were administered, accuracy in predicting BAC levels would improve by only 26 percent. The error in predicting BAG levels using the HGN, the one leg stand, and the walk-and-turn combined would be 74 percent as large as it would be by chance.

For the FST battery to be a valid predictor of BAC, it must not only identify individuals above a BAC level of .10 as “failing, “ but also identify individuals below .10 as “passing.” That is, the test must have discriminative power. In NHTSA’s own studies, a significant proportion of people who were below the .10 BAG standard in effect at that time were falsely viewed as being impaired. In the 1977 Burns and Moskowitz study, 46.5 percent of the “arrest” decisions by participating officers were incorrect. Of the 101 arrest decisions, 47 subjects had BAG levels less than .10. The authors, themselves conclude, “Obviously, an error rate of 46.5 percent in making arrests is not acceptable” (p.25).

In the follow-up study by Tharp et. Al. (1981), the false arrest rate was 32 percent. The primary reason for the decrease in false alarm from 46.5 percent in the ‘77 NHTSA study to 32 percent in the 1981 study was not due solely to the “new improved FST,” but partly to the distribution of subjects across the dose levels. In the ‘77 NHTSA study 27 percent of subjects were in the critical range (BAC in the middle range) and in the ‘81 NHTSA study only 22 percent of subjects were in the middle range. In other words the distribution in the ‘81 NHTSA study made discriminations easier. If the ‘81 NHTSA study had used the same distribution of BAC levels that were employed in the ‘77 NHTSA study, the false arrest rate would have been higher than 32 percent and probably would have matched the “unacceptable” 46.5 level of the ’77 NHTSA study. These validity scores are quite low and suggest that the FST battery is of little benefit for an officer determining BAC levels.

Myth 6: NHTSA has validated the FST in a field setting.

Fact: The 1977 and 1981 NHTSA studies were conducted in a laboratory setting. It is obvious that laboratory studies are very different from studies performed in a natural or field setting. Laboratories are quite different from real life situations. For example, the influence of alcohol on the individual depends greatly on the social context, as well as the expectations of the person. Subjects in these NHTSA studies were told not to eat eight hours prior to the testing. Test subjects were tested at 15-minute intervals, and the study began early in the morning. This would mean that many subjects had not eaten for long as 12 hours before being tested. It is doubtful that a person drinking in a natural setting would fast for hours and then consume alcohol at unknown ethanol levels.Laboratories are artificial by nature and only gives an indication of what one might expect in a field setting. In the conclusions of the 1981 NHTSA study, the authors recommended that the field sobriety test should be validated in the field for 18 months and in various localities across the nation. The 1983 NHTSA study by Anderson, et al., the purported “field validation” of the FST battery, did not meet those recommendations, A 3-month study was conducted in a limited number of locations on the east coast. Dr. Bums has testified on cross examination⁴ that the FST has never been adequately field tested. Most importantly the FST has never been standardized or validated in a field getting.

Myth 7: The NHTSA studies have been published in Peer Reviewed Journals.

Fact: Neither of the 1977 or 1981 NHTSA studies has been published in a scientific peer-reviewed journal. The publications have been limited to technical reports issued by NHTSA. Dr. Burns has admitted on cross examination³ that the method and results sections were too lengthy to be published in a scientific journal. Based on this logic lengthy but important studies would never be published. It is difficult to see how the NHTSA could claim that the FST Is accepted in the scientific community, when results of studies on the validation of the FST have never appeared in a scientific peer reviewed journal, which is’ a basic requirement for acceptance by the scientific community.

Myth 8: There is a consistent relationship between BAC levels and driving impairment.

Fact: The literature on the effects of alcohol is so diverse that one can only conclude that any demanding task may be impaired at almost any BAC level. Research indicates that there are substantial individual variations in the metabolism of alcohol which would, most likely affect performance. Performance is also affected by individual differences and individuals with identical BAC levels, may very well have different levels of impairment (Hurst and Bagley, 1972; Moskowitz, Daily and Henderson, 1974). Many studies involving the influence of alcohol on impairment find a rather significant number of subjects whose performance actually increases after the consumption of alcohol. In a study conducted under the auspices of the California Highway Patrol and various law enforcement agencies, Giguire (1985) found that 17 percent of his subjects with doses calculated to achieve BAG levels of .10 improved driving performance on a closed course. Mangarin & Standery (1989) also found no effects of alcohol dose on a video driving performance despite an unusually high dose calculated to achieve a BAG of .16. These studies and others suggest a complex relationship between BAC levels and performance and offers little support for setting specific BAC impairment levels and certainly does not support the assumption that BAG levels could be used as a substitute criteria for driving impairment.

Myth 9: People who are not impaired can “pass” the Field Sobriety Tests.

Fact: Cole and Nowaczyk (1991) had 21 adults perform field sobriety tests who were completely alcohol free, as confirmed by breath tests. The subjects were given six tests including a heel to toe test and a one leg stand test. None of the subjects was under the extreme pressure that is associated with a roadside detention situation. Two separate groups of law enforcement officers gathered at different times to judge the performance of the participants. These were actual police officers who had received standard training in the observation and Identification of intoxicated drivers. The officers were then asked to identify individuals who had too much to drink to drive. Of 147 responses by the police officers, 68 of those responses (46 percent) indicated that a completely sober person was too intoxicated to drive, The average police experience was 12 years. Interestingly, the officer with the least experience had the fewest wrong responses.

Compton (1985) found false positive rates for totally alcohol free participants to be as high as 54 percent for some police departments. In the 1981 NHTSA study 18 percent of alcohol-free subjects and 31 percent of subjects with BAC levels of .05 were judged to be impaired. Clearly, there is a strong tendency for certified alcohol-free participants to fail Field Sobriety Tests.

Myth 10: The Horizontal Gaze Nystagmus (HGN) Test is the most sensitive test for measuring Impairment.

Fact: Because the HGN test is a physiological task unlike the other Field Sobriety Tests which are psychomotor, divided-attention tasks, it is sometimes viewed as being the most sensitive of the three tests. Also, some of NHTSA’S research indicates it has the strongest relationship with BAC (e.g., Burns & Moskowitz, 1977 (p. 17]; Anderson, et at., 1983 (Table 2]). Yet, some of NHTSA’s own data raise question marks about its ability to discriminate among individuals with different BAG levels.

In a report commissioned by NHTSA, Snapper, Seaver and Schwartz (1981) reviewed the Burns & Moskowitz study and conclude, “Nystagmus, on the other hand was not a highly-rated test. … First, Burns and Moskowitz evaluated tests with respect to the relationship between performance on the test and blood alcohol concentration (BAC). A close relationship between these two variables does not necessarily imply a close relationship between performance on the nystagmus test and driving performance, or between test performance and accidents. Specifically, it is not apparent that performance on the nystagmus test reflects, any skills related to driving. In addition, examining a driver for nystagmus may be difficult operationally and somewhat unsafe. Scoring is quite subjective and would require careful training for the test administrator” (p. 4-4).

The difficulty in scoring is illustrated in the Tharp, et al. study where we find a weak relationship between an officers ability to judge the angle of nystagmus onset and the actual angle as measured by a machine. Officers are instructed that onset of nystagmus before 45 degrees of eye movement to the outside is an indication of a BAC above .10. Yet, we find that of the 10 officers who participated in the Tharp et al. study, 5 had correlation coefficients less than .44, with 2 in the .23 to .26 range. This indicates little relationship between what the officers judged .the angle of onset to be and what the machine actually recorded as the angle of onset,

The 45 degree angle of onset itself is troubling. Based on NHTSA’s own research, a 45 degree angle corresponds to a BAC of approximately .05 or .06, not .10 (Tharp, et al., 1981). A more appropriate angle, based on their findings, is 41 or 40 degrees not 45 degrees. A BAC level of .08 would correspond to an angle of onset of approximately 43 degrees. The task for the officer to detect such small changes is quite daunting, if not impossible.

Follow-up research on impairment and performance with the HON has shown it can lead officers to falsely conclude a person has a BAG above .10 when it is not. Compton, in a NHTSA study (1985), reported the findings of a study where individuals were stopped at simulated sobriety checkpoints. The subjects, dosed to different BAC levels, were encouraged to act as though they were not impaired. The officers gave “failing” scores (4 points or higher) to 15 percent of the sober individuals and 64 percent of those with BAC levels between .05 and .09 (the average BAC level in this condition was .07).

Giguire (1985) had 24 Navy personnel drive on a closed course under sober and intoxicated conditions. In addition to evaluating their driving performance, Giguire had officers administer the Field Sobriety Tests. Of the 13 subjects with BACs below .10 (between .064 and .099), 12 showed evidence of impairment based on the HGN. The HGON is not as accurate a test for determining BAG as NHTSA would like you to believe.

Conclusion

Because of its widespread use, the FST battery has been assumed to be a reliable and valid predictor of driving impairment. NHTSA has done little to dispel that assumption. Law enforcement cannot be blamed for its use of the FST battery. Training documents refer to NHTSA reports and provide what appears to be supporting evidence for the validity of the FST battery. In addition, there is little doubt that individuals who have high BAC levels will have difficulty performing the FST battery. However, what the law enforcement community and courts fail to realize is that the FST battery may mislead the officer on the road to incorrectly judge individuals who are not impaired. The FST battery to be valid must discriminate accurately between the impaired and non-impaired driver, NHTSA’s own research on that issue (Anderson, et. al., 1983; Bums & Moskowitz, 1977; Tharp, et al. 1981) has not been subjected to peer review by the scientific community. In addition, a careful reading of the reports themselves provides support for the inadequacy of the FST battery. The reports include low reliability estimates for the tests, false arrest rates between 32 and 46.5 percent, and a field test of the FST battery that was flawed. Because officers in many cases had breathalyzer results at the time of the arrest. NHTSA clearly ignored the printed recommendations of its own researchers in conducting that field study.

What is needed is a careful examination of the complex relationships among motor coordination tasks, BAG level and driving impairment. Tests should be developed based on our understanding of these relationships. The current method of selecting the “best of what is out there” is not serving the public well.

References

Anderson, I.E., Schweitz,R. M. & Snyder, M. 8. (1983). Field evaluation of a behavioral battery for DWI. Final Report, DOT-HS-806-676, 1983.

Anastasi, A. (1988). Psychological Testing, Sixth edition. NY: Macmillan Press.

Burns, M. & Moskowitz, H. (1977). Psychophysical tests for DWI arrest. Final Report, DOT-HS-802-424, NHTSA, 1977.

CoIdwelI, B. B., Penner, D. W., Smith, H. W., Lucas, 0. H. W., Rodgers, R. F. & Darroch F. (1958). Effect of ingestion of distilled spirits on automobile driving skill. Quartery Journal of Studies on Alcohol, 19, 590-616.

Cole, R. M. & Cole, S. N. (1991). New proof that field sobriety tests are “failure designed.” OWl Journal, 6(2), 1-5.

Cole, S. & Nowaczyk, S. H. (1994). Field sobriety tests: are they designed for failure? Perceptual and Motor Skills, 79, 99-104.

Compton, R. P. (1955). Pilot test of selected DWI detection procedures for use at sobriety checkpoints. Final Report, DOT- H S_806-724.

Giguire, W. (1985). Impairment caused by moderate blood alcohol levels in a closed course: preliminary demonstration. In S. Kaye & G. Meier (Eds.), Alcohol, Drugs and Traffic Safety. Proceedings 9th International Conference.

Hurst, P.M. and BagIey, S.K. Acute adaptation to the effects of alcohol. Quart. J. Stud. Alc., 33, 358-378, 1972.

Moskowitz, H., Daily, J. And Henderson, A. Acute tolerance to behavioral impairment by alcohol in moderate and heavy drinkers. DOT-NHTSA,TM (L) – 4970/013/00, 64 pp., 1974.

Moskowitz, H. & Robinson, C. (1987). Driving-related skills impairment at low blood alcohol levels. In P. C. Noordzij & A. Roczbach (Eds.), Alcohol, drugs and traffic safety. Elsevier Science Publishers. pp. 79-86.

Moskowitz, H. & Robinson, C. (1988). Effects of low doses of alcohol on driving-related skills: a review of the evidence. Final Report, DOT-HS-807-280.

NHTSA, National Highway Traffic Safety Administration (1992). DWl Detection and Standardized Field Sobriety Testing. DOT- PB94-780 228.

Rosenthal, A. & Rosnow, R. L. (1991). Essentials of Behavioral Research. (2nd ed.) New York: McGraw-Hill.

Snapper, K. J., Seaver, D. A., & Schwartz, J. P. (1981). An assessment of behavioral tests to detect impaired drivers. Final Report, DOT-HS-806-211.

Tharp, V., Burns, M. & Moskowitz, H. (1981). Development and field test of psychophysical tests for DWI arrests. Final Report, DOT-HS-805-864.

47 Types Of Nystagmus Differant Than HGN

alabamadui — Tue, 16 Jan 2007 04:03:23 +0000

TYPES OF NYSTAGMUS–SEPARATE FROM HORIZONTAL NYSTAGMUS

(1) Acquired;
(2) Anticipatory (induced);
(3) Arthrokinetic (induced, somatosensory);
(4) Associated (induced, Stransky’s);
(5) Audio kinetic (induced);
(6) Bartel’s (induced);
(7) Brun’s;
(8) Centripetal;
(9) Cervical (neck torsion, vestibular-basilar artery insufficiency);
(10) Circular/Elliptic/Oblique (alternating windmill, circumduction, diagonal, elliptic, gyratory, oblique, radiary);
(11) Congenital (fixation, hereditary);
(12) Convergence;
(13) Convergence-evoked;
(14) Dissociated (disjunctive);
(15) Downbeat;
(16) Drug-induced (barbituate, bow tie, induced);
(17) Epileptic (ictal);
(18) Flash induced;
(19) Gaze-evoked (deviational, gaze-paretic, neurasthenic, seducible, setting-in);
(20) Horizontal;
(21) Induced (provoked);
(22) Intermittent Vertical;
(23) Jerk;
(24) Latent/Manifest Latent (monocular fixation, unimacular);
(25) Lateral Medullary;
(26) Lid;
(27) Miner’s (occupational);
(28) Muscle-Paretic (myasthenic);
(29) Optokinetic (induced, optomotor, panoramic, railway, sigma);
(30) Optokinetic After-Induced (post-optokinetic, reverse post-optokinetic);
(31) Pendular (talantropia);
(32) Periodic/Aperiodic Alternating;
(33) Physiologic (end-point, fatigue);
(34) Pursuit After-induced;
(35) Pursuit Defect;
(36) Pseudo spontaneous;
(37) Rebound;
(38) Reflex (Baer’s);
(39) See-Saw;
(40) Somatosensory;
(41) Spontaneous;
(42) Stepping Around;
(43) Torsional;
(44) Uniocular;
(45) Upbeat;
(46) Vertical;
(47) Vestibular (ageotropic, geotropic, Bechterew’s, caloric, compensatory, electrical/faradic/galvanic, labyrinthine, pneumatic/compression, positional/alcohol, pseudo caloric.

Non Alcohol related reasons for HGN

alabamadui — Tue, 16 Jan 2007 03:55:43 +0000

CAUSES OF HORIZONTAL GAZE NYSTAGMUS NOT ALCOHOL RELATED

(1) problems with the inner ear labyrinth;
(2) irrigating the ears with warm or cold water under peculiar weather conditions;
(3) influenza;
(4) streptococcus infection;
(5) vertigo;
(6) measles;
(7) syphilis;
(8) arteriosclerosis;
(9) muscular dystrophy;
(10) multiple sclerosis;
(11) Korchaff’s syndrome;
(12) brain hemorrhage;
(13) epilepsy;
(14) hypertension;
(15) motion sickness;
(16) sunstroke;
(17) eyestrain;
(18) eye muscle fatigue;
(19) glaucoma;
(20) changes in atmospheric pressure;
(21) consumption of excessive amounts of caffeine;
(22) excessive exposure to nicotine;
(23) aspirin;
(24) circadian rhythms;
(25) acute trauma to the head;
(26) chronic trauma to the head;
(27) some prescription drugs, tranquilizers, pain medications, anti-convulsants;
(28) barbiturates;
(29) disorders of the vestibular apparatus and brain stem;
(30) cerebellum dysfunction;
(31) heredity;
(32) diet;
(33) toxins;
(34) exposure to solvents, PCBs, dry-cleaning fumes, carbon monoxide;
(35) extreme chilling;
(36) lesions;
(37) continuous movement of the visual field past the eyes;
(38) antihistamine use.

Schultz v. State, 664 A.2d 60, 77 (Md. App. 1995)

Warrantless Arrest

alabamadui — Mon, 15 Jan 2007 20:18:53 +0000

Section 32-5-171
Arrest without warrant.
A uniformed police officer, state trooper, county sheriff or his deputy or member of a municipal police force may arrest, at the scene of a traffic accident, any driver of a vehicle involved in the accident if upon personal investigation, including information from eyewitnesses, the officer has reasonable grounds to believe that the person by violating Section 32-5A-191 contributed to the accident. He may arrest such a person without a warrant although he did not personally see the violation.
(Acts 1971, No. 1942, p. 3137; Acts 1983, 2nd Ex. Sess., No. 83-201, p. 379.)

George Bush DUI

alabamadui — Mon, 15 Jan 2007 14:13:17 +0000

George Bush once got a DUI

This is the 1976 Maine police document recording the arrest of George W. Bush for driving under the influence of alcohol. Bush, who was 30 at the time, was popped over the Labor Day weekend near his family’s Kennebunkport summer home. Bush pleaded guilty to the misdemeanor DUI charge, paid a $150 fine, and had his driving privileges briefly revoked in the state of Maine. The arrest record card was released November 2 by Kennebunkport police. The Maine Bureau of Motor Vehicles also released this summary of Bush’s DUI conviction.

The Inadequacy of Instrumental “Mouth Alcohol” Detection Systems in Forensic Breath Alcohol Measurement

alabamadui — Mon, 15 Jan 2007 14:01:38 +0000

Rod Gullberg, Washington State Patrol Breath Test Section
811 East Roanoke Seattle, WA 98102
“Mouth Alcohol”, resulting from regurgitation or recently consumed alcohol, has long been a concern in forensic toxicology because of the potential for biasing an end-expiratory breath alcohol measurement. Manufacturers of forensic breath alcohol instruments have attempted to address the issue in part by developing software algorithms that attempt to identify ‘mouth alcohol” and abort the test if detected as present. These algorithms (as in the case of the BAC Datamaster, National Patent Analytical Systems, Inc.) generally evaluate the slopes of the breath alcohol expirogram and will abort the test if the slope is sufficiently negative.
Experimental breath alcohol expirograms were collected from drinking subjects both with and with out the presence of “mouth alcohol”. The data reveals that for subjects already having measurable breath alcohol, biases can exist in end-expiratory measurements and remain undetected by the “mouth alcohol” detection algorithm within the BAC Datamaster instrument. These biases occur at approximately five minutes after exposure to “mouth alcohol” because the expirogram does not conform to that assumed by the instrumental algorithm. These biases are unlikely to occur in sober subjects. Rather than relying on instrumental features to minimize the risk of “mouth alcohol” bias, sound protocol employing a 15 minute observation period and duplicate testing will enhance confidence in results to a much greater extent.

Military Consequences for DUI

alabamadui — Mon, 15 Jan 2007 13:57:43 +0000

Military Consequences/Actions for Incident Off-Post

Savannah attorney and retired JAG officer Doug Andrews has prepared this list of common actions that the military may inflict on the soldier (and probably the airman, sailor and marine). This list may not be all inclusive, and not all actions will be taken in every case, but the consequences can be enormous and continuing. However, it shows the options available to the commander and what may result, separate and apart from the civilian disposition.

Immediate Suspension of all Favorable Personnel Actions (”Flagged”):
No promotions
No leave or passes allowed
No transfer/reassignment by Permanent Change of Station
No Temporary Duty assignment
No selection to attend military schools

Relief for Cause from Duty Position with adverse Efficiency Report filed for record.

Suspension or Termination of Security Clearance, which bars access to sensitive equipment and information, prevents performance of classified military duties, and causes transfer or elimination from service.

Bar to Re-Enlistment imposed, forcing discharge at end of enlistment, ending career.

General Officer Memorandum of Reprimand filed in permanent record.

Mandatory/Command referral to ADAPC/ASAP (Alcohol or Substance Abuse Proram).

Initiation of Reduction Board (to reduce in rank an enlisted person) for “inefficiency” or inability to perform at more senior rank.

Mandatory Separation if reduction causes “Retention Control Point” to be exceeded, which sets limits on length of service allowed for each rank. (For example, E-4/Corporal limited to 9 yrs service, E-5/SGT = 13 years maximum and short of retirement eligibility).

Administrative Elimination/Discharge Action, with likelihood of stigmatizing Less than Honorable Discharge, which denies veteran’s benefits, including Educational Assistance (G.I. Bill)

Quality Management Program review initiates discharge as “less qualified” for retention.

Upon Discharge, likely to be stigmatized with Re-Enlistment Code of RE-3 or RE-4, which prevents re-entry into military service (even in the Reserve Forces), despite a successful rehabilitation period, effectively preventing later qualification for retirement eligibility
based on years of accrued service
Punitive action under the Uniform Code of Military Justice (10 U.S. Code 801 et seq.)
Article 15 (Non-Judicial Punishment action) imposed by Commanding Officer, which may include reduction in rank, forfeitures of pay, restrictions on liberty, and extra (fatigue-type) duty.
Court-Martial, which may impose confinement, forfeitures, reduction in rank, and either a Bad Conduct Discharge or Dishonorable Discharge, both of which are stigmatizing and disqualifying for military and veterans benefits.

How Much Interferent To Make An Innocent Person Look Guilty?

alabamadui — Sat, 13 Jan 2007 15:18:58 +0000

08 grams per 210 liters (32-5A-194(A)(5) = .0003800952 grams per liter209 liters = 55 gallon drum
The legislatively set ratio is the functional eqivalent of 1/10 gram of sweet “n” low packet into a fifty-five gallon drum.

If a breath test error occurs it is compounded by 3000 ( the breath to blood ration is 3000:1 not 2100:1 since based on .08% standard)

210 divided by IR chamber size 70 cc = 3000

Question: How much interferent, ie., mouth alcohol, would it take raise a blood alcohol level of 0.0% to .08%?

Answer: .0003800952 (.08%)= approximately 3/millionths of a gram of alcohol

********************************************************

70 cc = .07 liters

1 cc = .001 liters

.08 grams = 210,000 ml

WHY MAIL IS SOMETIMES LOST

alabamadui — Thu, 11 Jan 2007 12:42:49 +0000

WAUKESHA, Wis. – A mail carrier had a blood-alcohol level nearly four times the legal limit when he was arrested for driving his delivery truck into oncoming traffic and crashing into a sign, police said.

Thomas Lahiff was incoherent Friday when he returned to the post office, where he was arrested about an hour after the crash, Police Capt. Mike Babe said. He said tests showed the 46-year-old’s blood-alcohol level was 0.31 percent.

Lahiff now faces a drunken driving charge and was ticketed for hit-and-run causing property damage, Babe said. Police said Lahiff’s postal truck had crossed into oncoming traffic, jumped a curb and hit a “no parking” sign.

It happened about an hour before he returned to the post office, and it’s not clear where he was in the meantime, Babe said.

Postal Service spokeswoman JoAnne Blackburn said Lahiff was involved in an accident and would not be delivering mail pending an investigation, but she would not elaborate.