Actual impairment versus the breathalyzer machine

DUI prosecution has been called “trial by machine” because the reading on the breathalyzer is what convicts you of the crime.  You are not allowed to introduce scientific evidence to refute the machine in any state in the country.  You can thank Mothers Against Drunk Driving (MADD) for that.  MADD’s lobbying efforts in the Washington beltway achieved this years ago and it’s now established by statute in every state, under threat of the Federal government withholding highway funds if any state seeks to deviate from it.

The ghost in the machine is that it uses a faulty formula for converting breath alcohol level to blood alcohol level.  If it were possible to introduce scientific evidence of this many DUI convictions would be thrown out because the defendant is innocent.  But under current law when the machine says you’re guilty, you are and that’s final.  This has prompted the critics of the manner in which drunk driving laws are administered to claim that the system in not about getting drunks off the road, but simply to get as many convictions as possible.

Several years before the lobbying efforts of MADD achieved “trial by machine” to be enshrined into statutory law throughout this land, the California Supreme Court adopted it by judicial fiat.  In the case of People v. Bransford, 8 Cal.4th 885 , 35 Cal.Rptr.2d 613; 884 P.2d 70 (1994), The California Supreme Court upheld the DUI conviction of Donald Bransford. The machine showed him to have a blood alcohol content of .09, just above the legal limit of .08. The Supreme Court granted review to consider whether the trial court should have allowed Bransford to challenge his breath-test results by showing that his personal ratio of breath-alcohol concentration to blood-alcohol concentration (the “partition ratio”) differed from the standard partition ratio that breath-testing machines use to convert breath-alcohol readings into blood-alcohol equivalents.  It’s established (and thus could be proven in court) that the partition ratio differs from person to person and within individuals from time to time.

Justice Stanley Mosk became a justice on the California Supreme Court in 1964, remaining until his death in 2001. He was a greatly admired jurist in criminal and tort law classes throughout American law schools, as I remember from my law school experience in the mid-1970s.  Justice Mosk is most remembered for his incisive analytic skills in arriving at just decisions in complex cases. His opinion in the Bransford case is a departure from the natural brilliance that became his mark in other cases and thus shows the emotional power that any discussion of “drunk driving” will invariably have on even the best of minds. Justice Mosk upheld the exclusion of scientific evidence by defendant Bransford.  He delivered a long opinion that boils down to allowing a error-ridden machine to be the final word in convicting a citizen of a criminal offense that can have profound adverse consequences on that person’s future life.

As explained by Justice Joyce Kennard in her dissent,

Understandably alarmed by the carnage caused by drunk drivers on California’s highways, the Legislature has toughened this state’s laws directed at those who drive a vehicle after consuming alcoholic beverages. In interpreting [citing relevant statute] in this case, however, the majority has gone beyond the stringent prohibitions enacted by the Legislature and has on its own created the new crime of driving with alcohol in one’s breath. This result is achieved only at a serious cost, for it not only tramples the long-standing rule that a court interpreting a criminal statute with two possible meanings must choose the one more favorable to the defendant, but it also invades the Legislature’s exclusive power to create new crimes. Because the law does not permit us to take either action, and because in any event the defendants here were not charged with the majority’s newly created crime of driving with alcohol in the breath, I conclude that the evidence at issue in this appeal was erroneously excluded. [emphasis added]

Later in her dissent Justice Kennard prophetically hit upon the real purpose of the majority’s decision and which has now become the national purpose of drunk driving laws throughout the land, brought about by the extraordinary lobbying power of MADD:

It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment. Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charge.

There we have it, a glimpse into the mind of the judges, prosecutors, and cops who enforce and administer drunk driving laws. A purpose not to get actual drunks off the road, but to get convictions, as many as possible, and damn the evidence that a goodly number of the defendants may not guilty of anything and would have harmed no one had they simply been allowed to proceed to their destination.

Some states may still allow the defendant to demand a blood test.  The trend is away from this, however.  It is likely that most states will do away with that right, as have been done in Wyoming.  It is even more likely that MADD will force it upon states. With it’s lobbying power being absolute, it would be more efficient if Congress simply turned all legislative authority on drunk driving over to the ladies at MADD to enact by memoranda faxed to each state’s governor for signature.

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