The DUI Exception to the Constitution
Lawrence Taylor (retired)

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Well, that sounded pretty cool. And so legislators and prosecutors and MADD approached the American Medical Association and said, "We’ve got this great machine. Can you tell us at what level of alcohol concentration a person is impaired in their ability to drive a vehicle?" And the AMA said, "After extensive research it is .15 percent." This was about 30 years ago... .15 percent.

Well, that was okay for awhile, but a whole lot of people were not getting convicted. Part of the problem was there was only a presumption that you were under the influence. In other words, the jury could accept if you were over a .15 that you were under the influence, or they could reject it and say other evidence shows that he wasn’t under the influence. Second problem is that a lot of people were coming in at .13, .14, .12. Third problem is, you were .15 at the time of the test in the station, but what were you an hour earlier when you were driving?

So, those organizations went back to the AMA a few years later and said, "Are you sure about that .15. Couldn’t it be a little lower?" And the AMA said, "You know, you’re right. It’s a .10." Now, the human body, to my knowledge, had not changed in those 20 years, but certainly the American Medical Association’s research did. And replied to considerable political pressure. So, now jurors were told that they could presume guilt if there was a .10%.

Unfortunately, there were still defense lawyers out there and there were acquittals and the Mothers Against Drunk Driving, a very effective, very well financed organization, as some of you here know, was successful through a federal agency called National Highway Traffic Safety Administration in putting pressure on states to drop it further to .08%. And I indicated earlier, about a third of the states have done exactly that, the others are following suit.

Well, there’s no question, there are fewer acquittals now and the prosecutors were upping their, their conviction rate. But, there were still some acquittals. And so MADD and the other federal agencies decided to change the law further. More accurately, to come up with another law. This is called the per se law. If we can’t convince jurors that a person is under the influence over .08 we can make the crime being over .08. The crime is being over .08 per se. We don’t care if they’re intoxicated or impaired. If they have over .08% blood-alcohol, or .10% blood-alcohol perhaps, in your state; that is a crime. Not only that, let’s keep the original law. So, now we get the prosecutors two shots: If they can’t convince the jury he’s under the influence, well then maybe they can convince them he was over .08, even though he was not under the influence and visa versa.

Well, this once again certainly increased the conviction rate and the number of acquittals continued to drop. But there was a problem, again and we’re going to get into it, if I have time, a little bit about the technology involved in breath alcohol analysis. But, the machine, to put it simplistically, assumes that you are an average person. Okay? It is measuring the breath. It is measuring the alcohol in the vapor of the alveolar air in the deep lungs that you expel and is analyzed in the machine. The machine is telling you how much alcohol is in the blood. Not in the breath. There is what we call a partition ratio. To put it simplistically, the machine has a very primitive Z80 computer. There are different machines, but the computers will all say, "Well, if you’ve got this much in the breath, there must be 2100 times as much in the blood," and that’s what it prints out. .14% blood-alcohol.

But the computer is assuming that your partition ratio is 2100. Problem. Very few people have a partition ratio of 2100. It ranges anywhere from about 1100-to-one up to 3500-to-one. And there is no way of knowing at the time what your partition ratio was. You are going to be very different than you. You, your partition ratio tomorrow is going to be different than what it is right now. Well, what does that mean? It means if you blow, let's say, a .11 and you have a 1300-to-one partition ratio, .11 is really .07. You’re innocent. Your crime was not being average.

Well, a few defense attorneys were able to master the technology involved and attorneys usually go to law school because they fail physics, chemistry and so on in college. Where else can you go? In that sense, Mr. Murray is absolutely right. But, a few of these defense attorneys were actually learning how this machine worked. And they thought, "Whoa! There’s an assumption here, 2100-to-one," and they cross-examined the expert from the law enforcement’s crime lab and said, "Isn’t it a fact?" And the guy would hem and ha and so on and say, "Well, yeah." Acquittal. It’s still a problem in a lot of states. Not in California anymore. In California, our Supreme Court, which is slightly to the right of the U.S. Supreme Court, said, "No, not really because see what you’re doing is you’re measuring the alcohol on the breath. You’re not measuring the blood directly, you’re measuring on the breath and therefore we don’t have to have a partition ratio." Now, you probably don’t appreciate the complete idiocy of that statement, because the Supreme Court did not understand the technology involved. And it was an eight-to-one decision. The dissenting justice said, Joyce Kenner had said, "Do you realize that we just created a new crime called alcohol on the breath." And she was absolutely right. That’s what the Supreme Court of California did.

Result? If I now ask a law enforcement crime lab expert on the stand in front of a jury, "Isn’t it a fact that the partition ratio you used assumes an average of 2100-to-one?" I will be held in contempt of court and jailed by the judge. If I try to bring out the truth, I will be jailed as an attorney. I’m not exaggerating. And I’m telling you that, approximately, to my knowledge, in four other states. I have lectured in 36 states to lawyers' groups, bar associations and so on, so I’m somewhat familiar with the different states and their different approaches. All of which are becoming much more standardized as the Federal Government continues to step in.