IS THE STATE SERIOUS ABOUT THE DUI PROBLEM OR IS IT PARTLY TO BLAME

Like many Montanans, I routinely scan the police blotter to see the list of persons convicted of DUI in our local courts, happy not to see my own name and sad to see some of my acquaintances or friends on the list.  I am always amazed by the large weekly number of them.  I also have a bone to pick since its my opinion that the State of Montana acts in an indefensible manner with regards to the problem of drinking and driving. I argue here that it provides lip service to the problem.

My opinion is bolstered by my experience as a defense lawyer who often evaluates and defends persons accused of driving while under the influence of alcohol.  The typical scene follows a well rehearsed script and lately it follows one that concerns me so much that I write this letter to warn the public about how things really work.  

Here’s the scene:  Sometime after midnight on the weekend, my soon to be client leaves a local bar, parking lot full of cars, licensed to sell alcohol seven days a week until 2 AM.  This bar has no on-premises alcohol testing device to allow patrons to self-test before they decide to get in their car to drive home.   This bar is required by local codes to have a certain size parking lot and it is intellectually indefensible for anyone to assume anything other than that the predictable way to get there and get home is to drive a car.   The suspect, has no idea of what is lurking outside the bar room exit doors.  The bartender, is usually only equipped or concerned with cutting off or warning the obviously drunk or more commonly, abrasive or irritating customer.  If you are polite and don’t draw attention to yourself, you can buy as many drinks as you would like, increasing the chances that your name will end up in the paper in a few days.  

The bar owner and the police and the State all know that this person leaving is highly likely to be in excess of the .08 % BAC standard, now used in the State of Montana.  It can be as little as two drinks for a small petite female.  The chances of this occurring after midnight on any given night is alarming based on my own experience and the casual opinions provided to me by my friends in law enforcement.   The chances of this happening after midnight on a Friday or Saturday are downright predictable.  The problem with this scenario is that there is no testing machine available at the bar...the first time anyone ever has an experience with a testing device will be after they are pulled over and taken to jail.  The vast majority of portable breath testing devices are in the exclusive hands of the police and the only Intoxilyzer 5000 is maintained and within the exclusive confines of the Missoula Detention Facility, where the unsuspecting new client will be held for processing, in about an hour or less.  The Intoxilyzer 5000 is regarded as the most accurate of testing devices and it and the other machines are tested regularly to ensure the same.  

A person can buy a portable breath testing device (PBT) but I have never interviewed a client or a the member of the public who actually owned one.  I bought and gave one to a repeat client a few years ago in order to try to keep him from finding himself in a felony situation.  Unfortunately, he did not have it with him when he found himself again in the position of my leading actor in my example.  If this unsuspecting client were to buy a PBT on his own, I can guarantee you that our attempt to use it as evidence in his later trial, would be opposed by the Prosecuting Attorney, who would argue that it was not validated properly, that it was not certified and probably more importantly, you did not use it correctly.  The Judge would probably grant his request because quite frankly, the prosecutor is right... the client’s attempt to protect himself would most likely have been done wrong or not be supported by the right expert since only the State can afford such an expert.... Why?  Because they are on the payroll at the Crime Lab.  Your expert will cost $5000 and lives in another state but the State’s is a phone call away near the Reserve Street Plaza.  So the soon to be handcuffed patron really has no way to defend himself and find out what his BAC might be... before he gets in the car to drive home.  Its easier to test your blood sugar or cholesterol level accurately than to test your BAC in a way that a judge would accept in court at your eventual trial.

The police officer sitting in the cruiser outside knows all this.  He or she has been trained at the law enforcement academy how to identify DUI suspects, how to prove they are under the influence of alcohol, how to write convincing reports with spicy adjectives and if necessary how to testify in a DUI trial.  More importantly he knows that after midnight, almost anyone coming out of the bar is likely to be meat for the table.  

The patron comes out of the bar, and if it’s a slow weekday night, the officer simply pulls out behind him or her and follows them.  They can choose from a long menu of reasons to pull you over to “investigate” which lately has included even more minuscule reasons such as “weaving within your own lane” which is not illegal to wide turns to going too slowly or crossing the fog line, most of which will be impossible for the client to deny later in their trial since they were too drunk to recall and it’s the word of the sober officer vs them.  We all know who is the more reliable of two persons....the one who hasn’t been drinking.

On a busy weekend night, its actually pretty hard to choose which one they are going to target as the patron comes out of the bar with his friends, laughing, stumbling, the prospects for the officer are endless.  Either way, my new client is the unlucky one that night and gets pulled over.

Once the client gets pulled over, they are approached by the officer who advises them which of the menu items he has chosen to use to pull over the client.  He immediately, once you roll down the window, will notice the “ strong odor of an alcoholic beverage” and will attest that you had difficulty finding your license, registration and insurance information when asked.  There will be no mention in his report about how distracting and scary it is for the uneducated and normally law abiding client to be pulled over and be investigated.  The client’s mind is already on a million things, since he or she know that they have been drinking and now are driving and if an officer has just pulled one over, things are getting pretty bleak.

Eventually the officer will ask you to exit the vehicle and to perform what is known as Standardized Field Sobriety Tests ( SFST) which the client recognizes from somewhere but really doesn’t understand.  The well choreographed conviction process is now underway.  The officer will ask you to perform these three tests and the client will be under the impression that he has to perform these tests.  ( He doesn’t) .  My new client will be under this impression because the officer will lead him to believe that those tests are required and will never ever offer the information without being asked specifically by the soon to be client.  He knows that a microscopic few will actually question his authority and not perform these tests.  Some officers will go so far as to say they “need” you to perform these physical tests, something that the Judge will probably chastise the Officer for if the client actually hires a lawyer and cross examines him or makes a motion to suppress at trial because it goes too far.  The officer doesn’t need you to perform these tests... he wants you to perform those tests because he has been trained on the many ways to indicate that you failed to do them properly and this supports his conclusion that you were “ under the influence”.  This is part of the total conviction presentation package he has been trained to provide.  

About these tests.  There are three.  The first is the HGN test in which the officer hold a light or object in front of your face while you follow it with your eyes only.  He is looking for your pupils to exhibit nystagmus or jerking movements at 45 degree angles and maximum angles and of course only he is able to see your eyes and he is the sole one to say what a jerk is or isn’t and he alone is the one who will say where 45 degrees began.  The soon to be client will never be re examined by any other officer.  Should that happen, the other officer might come to a different conclusion and that would upset the conviction applecart.  Here is the first of the science evidence that lacks the basic verification used in your eighth grade science class... double blind verification.  At no time during any of these tests will the prosecution  do anything that will cause their star witness to be proven inaccurate or otherwise subject them to challenge.  This officer takes this subjective viewing of your eyes and he converts your actions into an objective scoring test and now the client has exhibited six of six indicators on the HGN test.  Strike two.

My new client will now be asked to perform the walk and turn test, where after being briefly instructed on the maneuver, he will be asked to walk nine steps heel to toe down a non existent straight line, shuffle around and walk back down the same non existent line while counting aloud with hands at the side.  The officer will score negatively for starting too soon, raising your hands, counting too many steps, not going heel to toe.  My new client will be asked to do this probably without being asked if he doesn’t want to do the test, probably without inquiring whether he has physical injuries that affect this test sober and if they are overweight or a senior citizen, despite the fact that the tests having been validated on such persons.  Only the officer knows that and he has probably forgotten or skipped over that part in his six week training in Bozeman.  In any event, my new client has probably now displayed more indicators of alcohol influence and strike three has been called.

The client will finally be asked to stand on one leg and put the other out in front of them and count to thirty and the officer will be looking for the inability to count aloud correctly or my new client losing their balance during the process.  Strike four.  

If at any time you are uncooperative, the officer is puts that in his report since uncooperative behavior is an indicator of alcohol influence.  Most law abiding clients will perform these tests because they have been asked to by the arresting officer and so they incorrectly assume they have to do these tests which they don’t.  The star witness is counting on this inclination and prepared to stop the tests if you refuse.  However then they will list in their report that you have been uncooperative.  The prosecution process is well rehearsed and able to adjust on the fly.

These tests are divided attention physical tests designed and validated to distinguish persons who are .08 BAC or higher.  That is why the officer asked you to do them.  People with certain physical disabilities, medical conditions, of advanced age and with weight problems are not proper candidates for taking these tests.  The untrained new client doesn’t know this however but I do.

Based on the results of these non required physical tests and your wide turn leaving the bar, the officer will conclude that there is “ probable cause” to believe you are under influence of alcohol.
You will be asked to take a portable breath test ( PBT) on a machine the officer has in his car.  You need to wait about 15 minutes without putting anything in your mouth before blowing into this device so the residual mouth alcohol doesn’t give a “bad” reading.  This device works a bit differently than the one you will be asked to take later.  You blow into the machine and the machine will read something above a .08.  This air sample you gave will dissipate into thin air and won’t be available to be tested by your lawyer later tomorrow.  Remember the rule of the prosecution... don’t do anything that will allow your star witness to be challenged later.

By the way, until this point, you are not technically under arrest and you don’t have the right to a lawyer.  In other words, the only person who will be trained in this situation is the prosecution’s star witness.  The conviction process can’t tolerate having you know your rights... that would upset the applecart.  You can’t ask a lawyer what to do before deciding to take these breath tests.  However pay close attention to what I am about to say.  YOU HAVE TO TAKE THE BREATH TESTS.  IF YOU DON”T TAKE THEM YOU LOSE ALL YOUR DRIVING PRIVILEGES FOR AT LEAST SIX MONTHS.  My new client will “ fail” the test and be handcuffed and put into the back of the police car and taken to the detention center.  Chances are that everything done to this point has been recorded on the onboard video and audio camera in the officers car.

Sometime after you arrive at the Detention Center you will be taken into a booking room where there will be a square in an empty room and a diagonal line and a desk with an Intoxilyzer 5000 sitting atop.  There is a video camera recording your every move and word.  If you move out of the square, you are not following instructions or uncooperative, another sign of alcohol influence. You will be asked again to take the field sobriety tests, this time in better light and to hopefully again display your ability to perform these physical sobriety maneuvers, allowing the star witness to again testify that you were under the influence of alcohol.  YOU DON”T HAVE TO DO THESE SFSTS NOW EITHER.  My new client is very confused in the morning when we discuss his case as to what he must do and what he must not.  He doesn’t have to do the SFST then he has to give the breath test and then he doesn’t have to do the SFST again and later, he has to provide another breath sample for the Intoxilyzer 5000.  Little wonder the new client is confused because the process is confusing and the star witness is trained not to voluntarily educate you or tell you what you don’t have to do.  He will only tell you what you have to do.

You will blow into a tube in the Intoxilyzer 5000 until a tone sounds and you have to keep blowing for quite a while.  The machine is trying to sample the last bit of the air in your lungs, because that deep lung air is the most reliable sample to assess what your blood alcohol content is.  It uses a complicated formula to estimate your blood level from air.  Same algorithm for everyone... young, old, big, small, male or female.  Blood samples are more accurate but that would require a medical doctor or nurse and that costs too much money.  Nurses don’t work nights.  The air sample you give will again dissipate into thin air and won’t be available for your lawyer to challenge or test later.  Nor will there be a second Intoxilyzer test taken.  No double blind.  No verification.  That is inconsistent with the main rule of prosecution.  Don’t do anything that will allow your evidence to be challenged later.  It will be virtually impossible to challenge the machine later and if you want to the expert that can, will live far away and charge $5,000 to attend your trial and testify on your behalf.

If there were a second test, it is most likely that the results would be different than the first.  One reason the second test is not done is that it will reveal that these machine is not as accurate and precise as the hundredths of a percentile readout would initially lead one to believe.  These machines are accurate but more like a shotgun than a rifle.  If the second readout is within 20% of the first, that is within the acceptable range.  The officer will never tell you that the number that comes out of the machine might be up to 20 percent off.  That would upset the conviction applecart.

Just so you know, the client still doesn’t have the right to a lawyer.  The law says that by accepting the privilege to drive, you have waived certain rights even though you probably didn’t and wont realize it unless you read this.  The first time you will have to talk to a lawyer is after you have given all this evidence against yourself and have been charged with DUI.  In simplest terms, the first time you will have someone educated about the process on your side, it will be too late.

If it hasn’t been made clear so far, let me rush to the conclusion and moral of this story.  You don’t have a chance.  The decked is too severely stacked against you.  The odds of your defending yourself in a trial later are small.  But there is a reason for this.  My new client drank too much under the law.  He or she should have known better.  That’s why I wrote this article... so those persons who read this will realize what is coming and hopefully stay out of the paper.  Honestly, I hope I take my own advice.

My main point however is this.  The State of Montana is responsible for allowing alcohol to be sold until 2 AM seven days a week in bars who can only be accessed by car and knows that many if not most of the persons drinking into the wee hours will be over the legal limit and a danger.  My opinion and the informal opinion of my law enforcement friends are that cutting back drinking hours would severely reduce this risk.  Quit drinking by 10 and the chances you will be under the influence monumentally decrease.  Drink water, coke or whatever but stop drinking alcohol after 10 and your chances of being my client are minimal.   I would challenge the State to enforce such a law.  Leave the Bars open all night but stop the alcohol sales by no later than 12 pm but preferably 10 PM.  To allow a situation to exist that one knows is a statistical danger and then to claim to be hard line against impaired driving is hypocritical.  Its intellectually dishonest.  The drug seller promotes a situation where it can sell more drugs and then arrest and jail its own customers who it knows are likely to make mistakes because of the very nature of the drug being sold.

Next, and this is my real pet peeve is that if the State of Montana is going to assert a scientific BAC percentage as being relevant, then it needs to do something affirmatively to make it relevant and available and most importantly a part of the package available to the drinking public.  I see lots of bars and ads for beer, wine or hard liquor but I don’t see any information ads on how you can test your buddies on the SFST or how you can buy and maintain your own PBT.  I don’t see the bar owners being required to have a machine or trained personnel on the floor during selling hours so that patrons can honestly assess their behavior by the same standard they will be prosecuted.  My objection to the officer sitting outside the bar waiting for the next victim isn’t that it is poor police work... its that the officer sitting outside the bar is the best evidence that the State knows it has created a monster and done nothing about it.  It has created a virtual DUI speedtrap.  If the State knows that a problem exists, then its dishonest to pay lip service to that problem and leave bars open til the problem is excessive and its intellectually dishonest to not provide BAC testing in the same places where you can buy alcohol and its intellectually dishonest to say SFST are important testing evidence and then to withhold training to the public. SFST administration doesn’t require expensive equipment.  Its not terribly difficult to administer. The more people who know how to administer the tests will enhance a lower number of persons deciding erroneously that they are okay to drive and that will save lives.  

What would a Perfect Defendant do?  He would roll down his window about one inch.  You can’t smell the strong odor of an alcoholic beverage through a crack.  He would exercise his constitutional right to remain silent, since you can’t slur your words if you don’t talk much.  You would not walk

Until then my advice to my new client...call a taxi , buy and learn to use your own PBT or don’t drink at all.  If you can’t do that, then stop drinking alcohol by 10 and preferably head home before 12.  The officer won’t be likely to be parked at the bar until midnight.

Paul Neal Cooley
Attorney at Law