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SFPD Breathalyzer Mistake Puts Hundreds of DUI Convictions In Doubt
Mr. Shotgun writes "According to CBS, 'Hundreds, or even thousands, of drunk driving convictions could be overturned because the San Francisco Police Department has not tested its breathalyzers, officials said Monday. For at least six years, the police officers in charge of testing the 20 breathalyzers used by the Police Department did not carry out any tests on the equipment. Officers instead filled the test forms with numbers that matched the control sample, said Public Defender Jeff Adachi, throwing countless DUI convictions into doubt.' Apparently this has happened before."
Especially things involving Drunk Driving which are routinely based on emotional appeals rather than real evidence and metrics.
A libertarian shat on my carpet once. Claimed the free market would sort it out. -Ford Prefect(8777)
Perhaps this will also lead to revelations about the myths of "drugged" driving as well. Reality: Just because you can test somebody's urine and find XYZ doesn't necessarily follow that they're under the influence of XYZ. Technically a blood test can reveal alcohol consumption up to 14 days later, but no serious person above the age of 5 really believes that means that you're drunk for 14 days...
Who did what now?
...this doesn't surprise me in the least. You have a few that respect and understand technology, and all it can do for the dept, but most resent it and try to deal with it and little as possible.
This won't even change anything, really.
Mod me down with all of your hatred and your journey towards the dark side will be complete!
Will officers face sanctions for falsifying records?
The DA said:
Gascon said there did not appear to be any malicious intent behind the police officers’ actions. He said the coordinators were apparently just too lazy to perform the test required every 10 days.
Can I use that excuse when I get pulled over for rolling through a stop sign? "But I was just too lazy to stop, officer! Surely you can understand that!"
This is fraud: A police officer accepted a paycheck for work and services he did not perform. That's fraud, and the officer should be relieved of duty and terminated from employment. Cops aren't above the law, or accountability, and it sounds like whoever fraudulently filled out the forms using the baseline measurements engaged in fraud.
Who did what now?
A mistake would have been using the wrong calibration procedure or something. Deliberately NOT PERFORMING the required calibration and falsifying the report forms is not a "mistake", it is outright FRAUD, and the pig or pigs responsible need to be held responsible.
Of course, that ain't gonna happen here in the United Police States of Amerika...
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Even though you'll most likely have your driver's license suspended if you refuse a breathalyzer, it's best to refuse it anyway if you're drunk.
Once you refuse the breathalyzer it gets complicated for the police and the clock starts ticking to get that blood test done in a timely fashion.
That a police department would use questionable tools and tactics to secure large numbers of convictions that also result in large fines.
Unless, of course, you're guilty and looking for plausible deniability......
But then, if you aren't guilty, take the breath test and if you fail, ask for the blood test.......otherwise, you have to take a ride to the station for the blood test, and all of that other inconvenience.
If you fail you'll get a ride to the station anyway. The advisability of refusing a test aside; it's still not that hard to get convicted of DUI based on other evidence. I served on a DUI jury, and all a breath test would have done is shorten the time it took to reach a verdict from 2 days to probably 2 hours. We took our job seriously and debated each piece of evidence, so not having a breath gets probably helps a case but it is not a slam dunk acquittal by a long shot.
I'm a consultant - I convert gibberish into cash-flow.
Unbelievable. I worked for Phoenix Police for nine years doing computer work. We had implemented an optical document management system when DUI attorneys started subpoenaing Intoxilyzer maintenance records as SOP when it came to cases, so we started scanning all calibration and maintenance records as part of our SOP. It also made it ridiculously easy to fulfill the subpoena. Our Intoxilyzers were calibrated by the crime lab, so it was actual chemists with a vested interest in accuracy, so it was done right. And this was back in the 90's!
Just unbelievable that SFPD could be so stupid. There's no excuse for this, whoever is in charge of that calibration really needs to get their heads handed to them. And so does the prosecutor's office for not checking this.
When you sympathize with stupidity, you start thinking like an idiot.
Ya know what else doesn't get calibrated?
The scanners run by the SA at airports. At any point of time there could be a mechanical failure and the machines start bombarding passengers with lethal (or cancer-causing) doses of X-rays and nobody would ever know, because the machines are not regularly tested (as is required in hospitals and doctors' offices). I don't think I will ever voluntarily step through one of those things.
There's a reason the European Union banned their use. I wish OUR union would wake-up and ban them as well (but of course the CEO of the scanner company has bought the politicians that make those decisions).
My AC stalker: " I personally agree with your posts most of the time, but that won't keep me from modding you troll"
If I get pulled over (and this does vary by state)...and I know I'm toast, on his advice, I won't say a thing, won't answer a question, I will NOT take any roadside tests (that's just letting them gather evidence against you on camera) and refuse breath or blood tests.
I'll politely hold my hands out for them to put the cuffs on me, and quietly go with them...and call my atty when I get to the police station.
The main thing to do...is NOT give them any evidence....or as little as possible.
In many states, at worst on first offense, refusing any tests might get you license yanked for 6mos up to a year, but with good atty, you can get temp license to drive to/from work and for food, etc.
A PITA, of course, but much better than getting a DWI on your record...which can then keep you out of jobs, kills your insurance rates...and cost $$$$.
Ever since they lowered the BAC to the ridiculously low 0.08....a grown man, having 2 drinks with a meal, can be dangerously close to the so called legal limit.
So, it pays to know what to do....the govt these days seem to be into any kind of traffic stop mostly for revenue these days...safety is usually second place.
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
Which is why the quantity matters.
Also, is there no second test done by a different method? In the UK you can blow positive by the roadside, but a second test by entirely different methods is done back at the police station on a non-portable unit, and then a blood test an be requested.
Holy crap I'd be pissed off if my lawyer let something like this slide.
I think you're missing the point. The defense attorney's would have asked for proof that the devices had been calibrated. And the falsely filled-out paperwork would have been turned over, showing just that. You're saying that the defense attorney's should have asked for proof that the documentation wasn't fraudulent. Which would have been ... what? Paperwork from a non-existing third party auditor? That's why the cases are in question.
Mind you, most cops know exactly when they're dealing with a drunk. And the drunks know when they're drunk. I would hope that this blunder only impacts very questionable/marginal cases, and not those where the driver was obviously and aggregiously under the influence.
Don't disappoint your bird dog. Go to the range.
Here is better legal advice: Don't drink and drive, asshole.
Nearly all of the states have signed onto 2 of the 3 compacts dealing with out-of-state drivers licenses. Each state agrees to honor decisions like license suspensions from another:
http://en.wikipedia.org/wiki/Driver_License_Compact
http://en.wikipedia.org/wiki/Non-Resident_Violator_Compact
http://en.wikipedia.org/wiki/Driver_License_Agreement
if you have an alcohol level of say 0.08 or what ever the limit is where you are, you have been drinking and you are drunk period.
.08 BAC is not drunk, regardless of your "period". It is above the legal limit for driving, but it is not drunk. How intoxicated you are does not vary by the jurisdiction's local laws.
Actually, testing for alcohol consumption 14 days later makes perfect sense.
If the incident happened on a Friday night, 14 days later is again a Friday night. If you go drinking with the guys (or girls, or whatevers), you'll most likely test positive again. :)
Honestly though, you're right. You'll can register a BAC up to about 12 hours after drinking. That's an extreme, and you'd probably be in the hospital (or morgue).
An EtG test (testing to if you did metabolize alcohol) is reported to be viable up to about 80 hours (3.4 days) after consumption. That only says you were exposed, not how much you drank. That's only useful if you are forbidden from drinking, and can give false positive reports from using alcohol based mouthwash or hand sanitizer (among other things).
Labs can report how much was present, or if a trace was present. There are plenty of people who function normally, that will test positive for a variety of drugs. Unfortunately, the prosecution will use any detection as proof of impairment. It's up to the defense to show that it wasn't an amount for impairment.
I've seen this in the workplace too. Someone tested positive for opiates. They were prescribed opiate based pain killers, and were not taking them in excess. Because the company had a zero tolerance policy, that person was fired. They did not allow introduction of evidence to counter the drug test report. As the rumor mill retold the story, she tested positive for "heroin", but as the drug tests aren't that specific, that was an incorrect assertion. I don't know if she sued or not, but I hope she did.
Serious? Seriousness is well above my pay grade.
Police officers are generally polite, respectful, and concerned for your safety.
Police departments are generally corrupt, bureaucratic, and don't give a shit about your safety.
For every asshole, rights-stomping cop there are several good ones. Unfortunately, they're powerless to do their sworn duty and protect you from the asshole cops and the department as a whole.
So, will they be paying the defendant's legal fees, cost of DUI school, lost work time and reasonable compensation for slandering their good name? How about lost employment opportunities?
A friend of mine driving a Jaguar XKS was pulled over by a Scottsdale cop who claimed he was doing 50+ in a residential zone. I was working at Phoenix Police at the time and had told him that motorcycle cops were supposed to check their radar guns at the start of every shift, then they were calibrated during routine maintenance once or twice a year and I think a copy of those maintenance/calibration records traveled with the bike. I'd told my friend all of this, and he knew he hadn't been speeding, so he asked for the calibration records. The cop eventually called his supervisor, the supervisor pointed the radar gun at a tree and clocked it at 30 MPH and told my friend to leave.
When you sympathize with stupidity, you start thinking like an idiot.
In the UK, refusing/failing to provide a specimen of blood or breath carries the same punishment as providing a positive sample. This gets around people like you trying to avoid responsibility for their actions.
In the US, our Constitution explicitly says that you do not have to incriminate yourself, and providing a breathalyzer or blood sample does so.
(Some states have gotten around this to some degree by giving you an "administrative" sanction by taking your license if you don't, which is still way better than DWI -- but they can't give you criminal charges for it.)
You can see it as "avoiding responsibility for their actions" but others see it as exercising their legal rights. Both views are likely correct.
If either country, if the police think you are guilty of a crime -- and you actually are or it could be easily believed that you are, and you want to minimize the penalties that could befall you, I'd suggest cooperating to the barest possible minimum that the relevant law requires unless otherwise advised by your legal counsel.
(Now, if you don't care what happens to you, if you want to "take responsibility for your actions", then by all means -- sing like a canary. But don't be surprised if the legal system screws you over royally.)
The thing is though, the legal limit has little relation to being impaired. The AMA said 30 years ago that a BAC of .15 would make someone impaired. At .08, the vast majority of people aren't impaired. The law used to be that you got arrested if you were driving while impaired. Now, you get arrested if you are over .08 even if you aren't impaired.
With any luck that happened in at least some of these cases and the prosecutors can hang perjury charges on the individuals responsible.
*Could* hang perjury charges on the cops. But won't. The prosecutor/cop relationship doesn't work that way.
Just sayin'
I would hope that would be no more possible than flashlight emitting a lethal dose of visible light.
The GP is right. Take a flashlight, focus the light into a point (into an image of the LED crystal, to be precise) and point into your eye. You'd lose vision in that eye pretty quick.
X-ray scanners are scanning you with a medium power (? no data) beam. Each spot of your skin is exposed to that beam for a fraction of a second; an average exposure is supposed to be low. Imagine that I take a hot soldering iron and slide its tip across your chest. Each patch of the skin under the iron's tip heats up to 450F, but since there are many of those patches the average temperature is only, say, 45F - which is totally harmless. Would you like to lay down here, please, while I heat the iron up?
A catastrophic fault will stop the beam of the scanner. The entire output of the X-ray tube will be directed at a single spot of your body, wherever it happened to be at the time of failure. There could be many causes of that, from mechanical (insufficient grease; plastic gear stripped; motor burned out; the MOSFET controlling the motor is blown; motor's power supply failed) to programming (the software crashed in mid-scan.) That would be analogous to me starting to slide that hot soldering iron across your chest, but then just stopping the movement half-way, leaving the iron's tip on your skin, and going for a dinner. It'll burn a hole all the way through you by the time I'm back...
Nobody knows how reliable the X-ray scanner is. For all I know, it may be controlled by a Windows 95 box. You'd need to be awfully reckless to step inside one of those scanners. Technically illiterate people may see scanners as an opaque magic box and go through them without a second thought. But an engineer knows how dangerous those things are.
In the UK, refusing/failing to provide a specimen of blood or breath carries the same punishment as providing a positive sample. This gets around people like you trying to avoid responsibility for their actions.
In the US, our Constitution explicitly says that you do not have to incriminate yourself, and providing a breathalyzer or blood sample does so.
(Some states have gotten around this to some degree by giving you an "administrative" sanction by taking your license if you don't, which is still way better than DWI -- but they can't give you criminal charges for it.)
It's called "implied consent," which means that, as a condition of having a driver's license, you automatically consent to the cop's request for a breathalyzer or other test. A lawyer friend explained it to me like this. Driving is a privilege, not a right (there's no Constitutional right to drive a car). As such, you are bound to follow all of the laws which govern that privilege. One of the laws is implied consent. You are, of course, allowed to refuse to take the breathalyzer test (that is your right), but the law states that refusal to do so results in the severe penalties they enumerate.
The problem is that blood-alcohol level isn't a good measure of actual inebriation. It's the wrong metric. I posit that a good old fashioned sobriety test probably is far far better and determining the degree of inebriation at which the operation of an automobile becomes dangerous. Of course, it is possible that that too would nail people who weren't drunk, but then again, I don't think there should be a separate criminal offense for driving drunk. If someone high, drunk or sober, cannot pass a sobriety test, they shouldn't be driving. At that point, you do the blood test to determine if there was criminal intent (ie. he had a high amount of alcohol in his system so obviously got into the car pissed) or has some nasty metabolic disorder, in which case it isn't a criminal charge, though at the very least the license should be suspended until the medical condition has been resolved.
MADD, an organization that has been for a few decades now basically been guilting politicians into a sort of temperance through the back door scheme, has a vested interested in promoting unreasonably low limits. Of course, if you object, you're clearly some vile drunk driver who can't wait to operate a vehicle completely smashed and kill CHILDREN!!!!
I think .08 limit is utter bullshit, and I drink maybe four or five alcoholic beverages a year (I really do not look booze at all). But what I am is a reasonable person, and a reasonable person cannot look at the BAC limits in place in most Western countries and see anything about them that has anything to do with solid scientific research. It's just a magical incantation ".08 is drunk, .08 is drunk" that is not based on evidence in the least. And remember, the guys charging you with driving drunk are the same guys who have invented other whoppers like "smoking crystal meth once makes you addicted forever!" and "once you start smoking marijuana you will inevitably and eventually do heroin and cocaine".
It's called job security.
The world's burning. Moped Jesus spotted on I50. Details at 11.
Wikipedia would say "Citation needed." on that.
The first result of a search for "increase in risk of accidents with blood alcohol content" - http://www.saaq.gouv.qc.ca/t2002/actes/pdf/(06a).pdf - indicate a best estimate of 169% increase in risk at .08% BAC. That's a 2.69x higher risk. They're referring other research showing it at 1.88x.
My personal experience with alcohol impairment is that my juggling gets impaired at about half a pint of beer; it doesn't affect anything that I can do well, but it affect all tricks at the edge of my ability. I'm an adult male of over 200 pounds (90+kg). I can't feel that amount at all, but it clearly affect my ability.
Is the 2.69x risk difference something you count as "not sigificantly impaired" (and we just disagree on the definition of significant), or is this a question of difference in research (is there other research I should be aware of) or were you not aware of the actual research levels and may be changing your mind?
Eivind.
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