DUI PROCESS AND LAW

TABLE OF CONTENTS

INTRODUCTION
PERSONAL ACCOUNT
PROBLEMS WITH BREATHALYZER MACHINES
ILLINOIS DUI LAW
APPROXIMATE COST OF A DUI
BAC CALCULATOR
CONCLUSIONS

First and foremost, I would like it to be known that Deputy Huseman behaved in a very courteous and professional manner, as did I, and that the following statements are in no way a challenge to his credibility or competence. These statements are largely hearsay on my part and subjective in analysis, but accurate and true to the best of my recollection and suitable for reference material in determining how this case can best be resolved. Also, I would like it to be known that this is my first offense and that I have had a spotless driving record for over 30 years.

At approximately 11pm I was pulled over by Deputy Huseman and he asked me if I was having problems because I was weaving from time to time. I told him I was having trouble seeing due to a faulty heater core that was spewing steam and antifreeze from the defroster vents, which was clearly evident from the oily moisture formed on all the windows, and that I was continually wiping the windshield with a rag in an attempt to get home.

Officer Huseman made no comment as to the condition of my vehicle and asked if I had been drinking. I answered honestly and admitted that I did in fact have a few beers at a friend's house and that I was headed home to rest up for work the following day. At this point I thought he would issue me a ticket for insufficient visibility on my rear window. After verifying my license and insurance he then asked me to get out of the car to perform a FST.

The "horizontal gaze" test was not a problem, however the "walk a straight line through moving surface lights" test is one that I would not be comfortable with at any time. Besides having a history of back problems that make it difficult to walk normally, I am also Acrophobic. Flashing lights do not affect me, but moving ground lights trigger vertigo, the sensation of falling and a subsequent panic attack. I am unable to walk across a dance floor that uses a lighted mirrored ball without feeling that I am falling in the direction of the moving lights. If I can grab onto something I know to be stationary the effect leaves almost immediately, or if the luminance of the background is significantly dominant over the projected movements, then the sensation goes away also. In my desire to be well rested for what was supposed to be a very busy day, my prime concern at that time was to simply get done with it as quickly as possible so I could be on my way. Had I known I had a choice on the FST, I could have declined or at least requested a headlights only test. This was a huge mistake on my part and cannot be undone now, nor can it be taken into account. It does raise concerns about how these tests are administered when dealing with subjects prone to seizures, motion sickness or inner ear conditions.

Upon completion of the FST I was handcuffed and taken to the Adams County Courthouse arriving at around 11:40. We continued to engage in small talk until 12:15 or so when I blew into the breath testing device. Officer Huseman informed me that it resulted in a .17 BAC, read my rights and officially issued an arrest. I was then fingerprinted and released on bond.

Again, this was a huge mistake on my part for being ignorant as to what this number meant and not knowing that I could have requested a blood test that would have presumably yielded a much different result. I assumed that the legal limits these days were at that "near-zero" tolerance level and also assumed that the device itself had a 5 to 10% margin of error. When I compared this result later with the standard weight vs. number of drinks BAC chart I found this margin to be more in the 80% range. Also, in theory a person is able to process and expend (1) 12oz beer per hour, in which case the device should not have registered at all. I believe this theory to be more of an exception manifested in rare individuals who have a much faster than average metabolism. I believe the more realistic version of the BAC chart is the Miller/ Munoz chart, which is prorated to adjust for simultaneous absorption and expulsion of ethanol over time, factoring in a probable progressive increase in expulsion time assuming that the subject is not urinating frequently or consuming equal amounts of water. In my case, I rarely drink water and urinate only a few times a day. The five bottles of Michelob Light consumed from 4:45pm to 10:25pm formulates as follows:

After 5 Hours of Drinking

Body Weight

This is one of the more unforgiving charts of this kind but still is nowhere near the .17 returned by the device used by Officer Huseman. The idea that this level elevated during the hour I was detained before the test due to "saturation" I believe does not apply. Had I consumed all 5 beers in the hour before leaving for home this would be a factor since, being 7 minutes from home, I would have been sleeping peacefully for quite some time before reaching peak BAC. In my case, this number should have been on the decrease as my first drink would have surely been out of my system after 7 hours.

So, assuming that the device was properly calibrated and compliant with any required manufacturer re-certifications, the only remaining possibility is the presence of an interfering compound in the lungs or bloodstream that could affect the test result without triggering the interference circuitry. As mentioned, a faulty heater core was the reason for the original stop which resulted in my arrest. It has been leaking steam and fumes for quite some time and I am at fault for not having it replaced. I found significant data on ethanol exposure from a number of sources, the worst being toluene and methanol, but very little data regarding prolonged exposure to concentrated ethanol fumes from heated antifreeze that might affect breathalyzer test results. I will be doing more research in the next week or so, but if this research does not yield any supporting evidence regarding possible contamination of the breathe sample I will enter a guilty plea and concede that the anomalous reading is fair and accurate, and move on to what options, if any, I have available to best minimize the damage from this incident.

James A. Weyand Feb. 22, 2005

As a follow up, this excerpt is from Illinois Secretary of State Jesse White :

'To reach .08, a 170-pound male would have to consume four or more drinks in a one-hour period on an empty stomach. A 137-pound female would have to consume three drinks in one hour to reach .08. A drink is considered a 12-ounce beer, a 5-ounce glass of wine or a cocktail containing 1.5 ounces of 80-proof liquor.'

With that said, the following information concerns probable cause criteria and what is regrettably the ONLY piece of evidence used to determine if a law has been broken, the breathalyzer. Keep in mind that the basic fact of the matter that everyone ignores is that drinking and driving is NOT against the law. Driving while too intoxicated to safely operate a motor vehicle IS against the law, but the guidelines for that law are based entirely on the five minute complete background check and complete physical, mental and behavioral evaluation of a total stranger who is most likely scared to death. Whether you are actually intoxicated or not is determined by a breathe testing device that uses an infrared emitting diode to estimate ethanol concentrations. This estimation is affected by an almost infinite number of variables, and even though the same test given to the same subject over and over will likely be consistent within 5%, the same test given to 10 different subjects of equal body weight and equal ethanol exposure would most likely return 10 completely different results. Further damaging the reliability of these devices, aside from the physiological variables of the individual subjects, is their inability to determine the source of these compounds and their limitations on identifying interfering substances that affect the end result.

Much of the following pages is far beyond my technical understanding or patience, but does raise concerns about the accuracy of this critical testing procedure. This information would probably be more useful printed out for later reference :

• EXCERPT FROM DRUNK DRIVING DEFENSE, 5TH EDITION BY LAWRENCE TAYLOR
  
  
  
  

The above research is extensive to the point where any bottom line conclusions seem buried in technical redundancies. Again however, it is NOT against the law to drink and drive, it is against the law to fail a breathalyzer machine. The penalties for this failure are devastating and these devices need to be scrutinized as in depth as possible since they are the sole basis for determining if a person's driving abilities are impaired. Ironically, many people are probably safer drivers after a few drinks because of a heightened sense of awareness of how important it is to follow all the rules and watch out for the other guy, as opposed to how one might drive in the morning when they are running late for work. Of course, excessive intoxication makes it impossible to safely operate a vehicle as vision, perception, coordination, reaction time and alertness diminish. Other forms of impairment that are generally not regarded as criminal include inexperience, poor eyesight or other sensory deterioration due to aging, fatigue/ exhaustion, stress, medication, distractions such as cellphones or kids, or any number of physical and/ or mental limitations. Driving under impairment can be considered irresponsible or even reckless, but driving under presumed impairment from alcohol is regarded as an act of malicious endangerment. The following info addresses the severe consequences of being convicted for failing a breathalyzer :

• ILLINOIS DUI LAW
  
  These penalties, although more expensive now, are not much different than they were 20 years ago. The casual subjectivity that determines when these penalties are applicable has however become much more generalized and more easily administered. What used to be a DWI (Driving While Intoxicated) is now universally referred to as a DUI (Driving Under the Influence). Impairment from intoxication is no longer implied by reference, only that the subject has consumed more alcohol over a period of time than the legal limit, this limit determined primarily by the seemingly unreliable breathe testing device. The best thing to do is not drink and drive, period. Not even one drink. If you fail a breathalyzer anyway, a requested blood test will debunk it's results. Keep in mind that a blood test will also detect other drugs that have been in your system for the last 24 to 48 hours, and can detect marijuana use from several weeks prior. It will most likely be assumed that you were under the influence at the time of arrest regardless of how much time has actually passed. At least with a blood sample you have the opportunity to retest the evidence, whereas with the breathalyzer the evidence is destroyed immediately making any challenge to it's validity impossible. Your attorney can best advise you on whether a trial would be to your advantage.
  
  The problem is, for most of us anyway, is that the cost of taking a case to trial exceeds the cost of what the fines, classes and court costs would be for a guilty plea. There are also no guarantees whatsoever that the outcome of the case will be any different than if you pleaded guilty, for which the financial devastation to yourself and your family will be felt for years to come. Regardless of the plea, it's best to hire an attorney anyway. It will be the least expensive piece in this process and will be a great help in having everything prepared by your court date. The cost of fines, fees, classes, meetings and attorneys varies not only state to state but varies depending on where you live in the state. In the Chicago area these totals may be $10,000 or more, whereas downstate it will probably be in the $4000 range. The following page was copied from the Illinois Secretary of State website :
  
  
• AVERAGE COST OF A DUI IN ILLINOIS
  
  The following program, although representitive of all other BAC charts and calculators, has little value in pre-determining what a breathalyzer will read :

• BEST DEAL ON ALCOMATE CA2000
  
  
  Conclusion: 4/12/05:    This ordeal has been a hard learning experience, and sadly most of what I've learned has been less about my own responsibilities as a driver and more about what DUI law enforcement has become. Although most law officers truly wish to make the roads safer and would like to believe they are making a difference in the community they serve, they are also feeding a much larger machine just like the rest of us. What started out with the best of intentions has become an industry comprised of numerous services and administrative functions created solely for this area of law. The increasing revenues required to support this industry have financially devastated otherwise honest, hard working tax paying families who are consequently regarded as 'collateral damage' in some higher mandate to protect us from ourselves at any cost. While this 'higher mandate' may be quite noble and essentially correct, the methods and technology used in it's implementation are inadequate beyond measure, and the administration of the processes attached to this implementation have become bloated to complacency, losing much of it's credibility by the indifference that results from the ever increasing number of cases to be processed. Put simply, it's become a business that, save for a few officers and counselors who actually do care, is just another paycheck for the countless people involved in this processing. Making these laws more effective will take more than simply arresting more people and increasing fines. The aforementioned methods and technology must be made reliable, accurate and universally consistent in order for us to even understand whether or not the law has been violated. The so-called 'Field Sobriety Test' needs to be done away with, and legislation needs to be passed forcing breathalyzer manufacturers to come up with a device that actually works on everyone regardless of physiology and is capable of analyzing the source or sources of it's analysis. Only then can there ever be a BAC chart that is practical. Currently BAC is as difficult to personally estimate as it would be to obey the posted speed limits if cars had no speedometers. If necessary, make drinking and driving illegal, period. But even zero tolerance across the board for everyone requires precise measurability, in fact more so because of the smaller trace amounts to be measured. So it would seem that in our zeal to address drunk driving issues we may have gotten ahead of ourselves a bit. The experienced subjective judgement that law enforcement officers used years ago to determine when to send someone home or arrest them has been removed without an adequate procedure to replace it in an attempt to remove human error. The resulting void is one full of vague assumptions that rarely and randomly stop someone who is a real danger, and more often pull average decent people into a nightmare of consequences that affect their families for years. My hope is that through common sense legislation we can somehow simplify this system to where is does what it was meant to do. Save lives.
  
  
  Know the law.
  Know your rights.
  Be responsible.
  
  jw.