NHTSA Cooks Statistics: Smoke & Mirrors of Numbers Behind Standardized Field Sobriety Testing Validation Research & “Alcohol-Caused Deaths"

This thread is a background on the numbers behind NHTSA’s alleged “validation” of the “standardized” field sobriety tests in DWI arrests and those statistics they claim for alcohol-caused deaths. Click here to read more about the actual standardized field sobriety testing procedures in Missouri DWI cases.

Background of NHTSA’s Validation Studies

Years ago, the methods the police used to determine if someone was “intoxicated” while driving were only limited by their imagination. The tests utilized to determine if someone was DWI were wildly varied in jurisdictions across the United States, but the goals of all of these tests was obviously the same– to convict as many drunk drivers as possible.

The old-fashioned tests included: ABC’s, counting, drawing, picking up coins from the hood of the officer’s car, blowing up balloons, and anything else that could be conceived of.

Beginning in 1975, studies began which were sponsored by NHTSA to determine which of the field sobriety tests being utilized around the country were the most accurate. These studies were conducted by the Southern California Research Institute. The goal of the studies was not for SCRI to develop new field sobriety tests, but to determine which of the field sobriety tests in use by law enforcement at that time were the most accurate. SCRI was directed by Marcelline Burns, who created a technical and cost proposal and submitted it to be awarded NHTSA’s contract.

1977 Study

The first NHTSA study was reported in 1977. In first attempting to determine which tests then in use were the most accurate 15 to 16 tests were considered, and 238 drinking subjects and 10 police officers were utilized. The study first reduced down to the six most “reliable,” and then reduced down to three. The 1977 felt that the HGN, horizontal gaze nystagmus eye test, the walk-and-turn test, and the one-leg stand test were the most reliable. The finger-to-nose test, the finger-count test, and the tracing test were disregarded as unreliable, although this will, of course, not stop Missouri police officers from STILL utilizing them in making DWI arrests.

Of course, one of the biggest mistakes DWI attorneys make is not actually reading the original studies, and instead relying on the “summary” of the study where NHTSA gives the information that it wants the public to focus on when it publishes it training “manuals” for the police. When anyone bothers to read the actual underpinnings of NHTSA’s conclusions in their manuals about how accurate these tests are, it is an eye-opening experience.

There is much information in the original 1977 study, which you will, of course, not find in the NHTSA training manuals, which is astounding:

The error rate in the 1977 NHTSA study was an astounding 46.5%. The officers made the decision to “arrest” a total of 101 people. 47 of these 101 people had a BAC (blood alcohol content) below 0.10% (the legal limit at the time)! Even the study authors admitted that the results were “totally unacceptable.” They also were completely subjective in the subjects they chose for the 1977 study to get to the end result they were seeking: 80% of the subjects were in their twenties, and about 2/3 of them were male.

General principles of statistical analysis and good science were also largely ignored:

No neurologists or ophthalmologists were brought in for consultation for the eye testing; no true reliability testing was administered in the true scientific meaning of the word; Important testing variables such as swaying while performing the test, the person’s eyes or the person’s attitudes, or odor of alcohol were not given “controls” for the test; elderly or obese people were not subjects in the test at all, and females in general only made up about 1/3 of the subjects; there was no contact lens testing for the eye tests; and the prevailing scientific literature in the field was only generally referenced, therefore making the study largely exist in a vacuum outside of reality.

The 1981 Study

Despite the shortcomings of the 1977 study, and they were numerous, NHTSA gave SCRI a second attempt to retest and “standardize” field sobriety testing. In the 1981, only the new three-test battery the 1977 indicated was the most reliable was utilized– The HGN, horizontal-gaze-nystagmus eye test, the walk-and-turn test, and the one-leg-stand test.

The 1981 test utilized 296 subjects, and attempts were made to add “divided attention” aspects to the three tests, thereby making the administration portion of these three tests allegedly standardized. (example: the verbatim walk-and-turn instructions phase).

It is highly touted that the 1981 study bettered the unacceptable error rate of the 1977 study. Again, it is important to read the statistics in the actual 1981 study, as opposed to the canned summary of what NHTSA says about the 1981 study in the NHTSA manuals.

In the 1981 study:

32& of the 118 arrest decisions of the officers for DWI were WRONG!

18% of the subjects who had NO alcohol in their system whatsoever were misjudged by the officers to be impaired.

The officers in the 1981 study believed 31% of the people who were actually at a 0.05% blood alcohol content to be impaired above the legal limit (which was then 0.10%– meaning that they were guessing 31% of the people actually at 0.05% to BE TWICE THE LIMIT THEY ACTUALLY WERE)!

Marcelline Burns and SCRI’s “explanation” for these problems? She believed that the results were poor because the study was done “next to the drug capital of the world.”

Still, how did the 1981 study improve the error rate over the 1977 study? By skewing their numbers with improper dosing differential, of course. (You won’t find THAT in the NHTSA training manuals, but you can read it for yourself in the study).

In other words, they loaded the deck by making sure many of the test subjects were dosed at levels OTHER than the 0.10% level that they were trying to say these three tests were accurate in gauging people to be at.

In the 1981 Study:

33% of the subject’s actual BAC was 0.0%, no alcohol;

34% of the subject’s actual BAC was 0.05% , half the legal limit they were testing for (0.10%);

11% of the subject’s actual BAC was 0.15% of higher.

In other words, these subjects represent a disproportionately high number of “gimmie’s,” that my grade school daughter could accurately assess. It seems without question that the reduction in the “false arrest” rate from 46.5 percent in 1977 study down to 32 percent in 1981 study is due in large part to this “dosing differential.”

Further skewing the numbers of the 1981 study in favor of a new found “accuracy” is the fact that the number of subjects dosed in the mid-range of 0.05% BAC and 0.15% BAC (the most important group as it is the group that they are allegedly trying to find) went down from 27% of the total subjects in the 1977 study to 22% in the 1981 study.

Despite these nonsensical testing discrepancies (why weren’t the same number of subject’s used at the same BAC levels in each study for scientific accuracy and reliability accept to get to the result you are seeking?) NHTSA claimed an overall accuracy rate of 80% from the 1981 study when using the three-test battery of the HGN eye test, the walk and turn test, and the one leg stand test.

As an aside, it is also interesting to note that NHTSA did NOT EVER RELEASE the results of the subjects dosed between 0.05% and 0.15% BAC (those most important to determining whether or not these tests actually are accurate in finding impairment at the mean level of 0.10%, the legal limit at the time). I wonder why that is that they chose not to release the numbers for the most relevant subjects closest to the limit they are looking for? Assuredly, these individuals would undoubtedly have SIGNIFICANTLY lowered the accuracy rate.

The “reliability” portion of the 1981 study consisted of asking 100 of the subjects “back” for retesting two weeks after the original study. The “reliability” factor was 0.77. The inter-rater reliability coefficient dropped to 0.57.

Similar to the 1977 Study, the age and gender factors of the 1981 Study were also unfairly skewed:

80% of the subjects were between the ages of 21 and 34, and like the 1977 Study, about 2/3 of them were male.

Even assuming NHTSA’s 1981 study numbers are not completely cooked and self-serving, and that the three tests were administered, demonstrated, and scored correctly, you are still talking about 2 out of 10 people being wrongly accused by these tests.

There were other errors in the 1981 study similar to those in the 1977 study, in that general principles of statistical analysis and good science were largely ignored:

No neurologists or ophthalmologists were brought in for consultation for the eye testing; no true reliability testing was administered in the true scientific meaning of the word; Important testing variables such as swaying while performing the test, the person’s eyes or the person’s attitudes, or odor of alcohol were not given “controls” for the test; there was no contact lens testing for the eye tests; and the prevailing scientific literature in the field was only generally referenced, therefore making the study largely exist in a vacuum outside of reality.

The Good-Ausberger Study

One of the earliest non-NHTSA studies of SFSTs was published in in the American Journal of Optometry & Physiological Optics by two optometrists at Ohio State University, Gregory W. Good and Carol R. Augsberger in 1986.

In particular, this study focused on the HGN horizontal gaze nystagmus test. The study noted that 92% of subjects scoring four ”points” or higher on the HGN registered BAC’s above 0.10, and NHTSA, of course, seized on this research to claim to everyone that would listen that HGN is “92% accurate in identifying intoxicated people.”

While it may be factually accurate that 92% of the subjects in the study who scored four “points” on the HGN test were above 0.10%, this overlooked the study’s FALSE POSITIVES, where the study’s own charts indicate that 81.5% of those with blood alcohol content BELOW 0.10% ALSO SHOWED FOUR OR MORE CLUES.

NHTSA made a concerted effort to ignore the fact that the study’s data indicates the HGN test is 82% inaccurate as applied to INNOCENT PEOPLE, and screamed from the ramparts instead that the HGN was “92% accurate in identifying intoxicated people.”

From the 1981 Study and the Good-Ausberger Study, the NHTSA publicity machine swung into high gear, and everyone has been improperly convinced that these three tests are valid every since, based on bogus numbers.

NHTSA then proceeded on with three standardized field sobriety validation studies between 1995 and 1998: The Colorado Validation Study in 1995, The Florida Validation Study in 1997, and the San Diego Study in 1998.

In general all three of these studies are fairly consistent in terms of low false negative rates, and believe me, that is all you will hear NHTSA talk about in their SFST training manuals for the police– how wonderful and reliable everything is.

What you don’t get in the NHSTA student manual or the NHTSA instructor manual is the high numbers of false positives for these three field sobriety tests in all three of these studies– you won’t see that unless you read the hard data of the original NHTSA studies themselves.

The false positives rate is what is completely alarming– where the wrongly accused are being arrested because of flawed “science,” and the term is used loosely. NHTSA just glosses over the false positives and hopes no one will notice.

The reason why so many people over the limit of 0.08% BAC and 0.10% BAC show four or more clues on the HGN horizontal gaze nystagmus test, is because so many people ALSO HAVE FOUR OR MORE CLUES ON THE HGN TEST at BAC LEVELS OF 0.04%, 0.05%, and 0.06%, within the legal limit to drive!

NHTSA says that the Colorado study was the first field study that utilized police fully trained in the use of the three-test SFST battery. They also claim that the correct arrest decisions were made 93% of the time based on the officer’s implementation of the three-test battery in the Colorado study, which is obviously considerably better than the miserable results of the 1977 Study and the 1981 Study. I wonder how they got there in so short a time?

NHTSA claims the Florida validation study was to answer the question of whether or not the newly-developed three-test battery is valid and reliable as indices of the presence of alcohol when used under “present day” traffic and law enforcement conditions. In the Florida Study, NHTSA alleges that the arrest decisions of the officers were correct 95% of the time! Isn’t it amazing how much better they are allegedly getting?

NHTSA claims the San Diego study was undertaken because NHTSA wanted these three tests to be recognized as capable of discriminating between BACs above and below 0.08% BAC (remember the original studies were only “standardized,” if you can call it that, for the old legal limit of 0.10% BAC), as NHTSA and MADD had campaigned to reduce the per se limits to 0.08% BAC across the nation. Not surprisingly, NHTSA claims the San Diego study had the “correct arrest decision” was made 91% of the time at the 0.08% BAC level or above.

THE REST OF THE STORY AND THE COOKED NUMBERS OF THE FALSE POSITIVES IN THE COLORADO, FLORIDA AND SAN DIEGO STUDIES THAT NHTSA GLOSSES OVER AND DOESN’T WANT YOU TO KNOW ABOUT

Believe me, the attorneys for the State of Missouri in any DWI case, or the attorneys for the Missouri Director of Revenue will use the validation numbers from these three tests for the new 0.08% standard, as opposed to the ridiculously low numbers of the original NHTSA validation research in 1977 and 1981.

When you cut through the propaganda of the NHTSA training manuals and get to the raw data of these three actual studies, the numbers from the studies are shocking, and an affront to real science.

In the Florida validation study, 16% of all people below 0.08% BAC HAD SHOWED ALL 6 CLUES FOR THE HGN TEST!

The Florida validation study also suggests that OVER 50% OF THE SUBJECTS HAD AT LEAST 4 OF 6 CLUES FOR THE HGN TEST, but of course, it does not come out and say it……Instead, NHTSA attempts to conceal these numbers by saying that 1/2 of the correctly released drivers had 0 of 6 clues for the HGN test, or 2 of 6 clues for the HGN test, which suggests that HALF of the correctly released drivers (under 0.08% BAC) had MORE than 2 of 6 HGN clues.

The Colorado validation study found that 1 in 8 people UNDER 0.05% BAC SHOWED 4 OF 6 OR MORE HGN CLUES!

Of course, the police will never readily admit that 13% of people under 0.05% by NHTSA’s own touted numbers would be improperly deemed “impaired” by an HGN test with four or more clues………….

The Florida validation study also states that 67% OF ALL INCORRECT ARREST DECISIONS (meaning that they wrongly thought they were above 0.08% when they were actually below 0.08) IN THE FLORIDA STUDY HAD ALL 6 CLUES FOR THE HGN TEST!!!!

In the San Diego study, the one most frequently cited, and the one prosecutors will most frequently blindly regurgitate for the notion that “79% reliability for walk and turn! 83% reliability for the one leg stand! 88% reliability for the HGN!,” the AVERAGE BAC OF THOSE ARRESTED IN THE SAN DIEGO STUDY was 0.15%!!

This means the average was almost two times the legal limit of 0.08% BAC! How loaded can they make the deck? My grade-schooler can see with her own eyes if someone is at 0.15% BAC.

The major literature in the scientific community indicates that someone at 0.15% BAC is completely ripped…. Kurt Dubowski, (one of the world leaders in breath testing) indicates that at 0.13 — 0.15 BAC, a subject will show: “gross motor impairment and lack of physical control- Blurred vision and major loss of balance. Euphoria is reduced and dysphoria is beginning to appear. Judgment and perception are severely impaired. Dysphoria is an emotional state of anxiety, depression, or unease.” A subject at this level is not exactly who a real scientist would go looking for if they were attempting to get valid results for a test.

False positives in the San Diego study (those arrested which had BAC levels below 0.08%) were six times as common as false negatives (persons NOT arrested who actually had BAC levels of 0.08% or greater. For all people stopped and investigated 29% of those with a BAC under 0.08% were arrested!

In the 0.07-0.09% BAC range (the most scientifically relevant, of course for testing a 0.08% BAC standard) the accuracy was unbelievably low.

36% of those arrested were over the legal limit of 0.08% BAC, while 64% OF THE PEOPLE ARRESTED WERE UNDER THE 0.08% BAC LIMIT! Think about THAT when you have had two beers and get stopped driving home before you take these nonsensical tests…….

Perhaps most shockingly of all, in my humble opinion, is the fact that ALL of the police officers in the San Diego study were equipped with portable breath testing devices to skew their already pathetic and scientifically unreliable guesses in their favor!! What else could they possibly do to get the results they were looking for?

Most everyone tested in the Florida validation and the Colorado were RIPPED, as the average BAC of those arrested in the Florida study was 0.15% BAC, and in the Colorado study 0.152% BAC…… like shooting ducks in a bathtub… but that is what they are looking for to begin with…

In the Colorado and San Diego studies, we have no idea what instructions were given for the walk and turn and one leg stand test (even though the instructions are now deemed “critical” to “standardization”) because they did not bother to record it during testing. Further, the instructions for these two tests in the Florida study differ substantially from the NHTSA training manuals, and are therefore basically different tests!

The Colorado study reported that only 13 errors of administration occurred during testing and that 6 errors in instructions were observed in 305 administered field sobriety tests. What an amazingly high number… Funny how SCRI only bothered to actually observe the officers administer the tests 41% of the time in the study, despite getting immense amounts of money from the taxpayers through their NHTSA contract to get it right.

Even better, “no errors” were allegedly observed in the 313 field sobriety testing batteries given in the Florida study, even though 1/3 of the tests which were administered weren’t even monitored for accuracy!

The NHTSA “validation” numbers for standardized field sobriety testing accuracy are the biggest joke I can think of that has been foisted on the public as truth in my lifetime. In general, “garbage in and garbage out.” You can make numbers anything you want when such scientifically invalid methods are used, and that is exactly what NHTSA got to justify it’s DWI witch hunt of the last thirty years.

REAL STUDIES FROM THE SCIENTIFIC COMMUNITY ABOUT THE RELIABILITY OF “STANDARDIZED” FIELD SOBRIETY TESTING

There are, of course, actual scientific studies on the reliability of these tests, and I am sure you would be surprised to find that the numbers in the studies in the scientific community (peer-reviewed by others in the field with real statistical methods utilized) are nothing like the numbers NHTSA trots out.

In the study, “End Position Nystagmus as an Indicator of Ethanol Intoxication,” 40(2) Science and Justice 113 – 116 (2001), by Booker, the reliability of the HGN test is discussed at length, and specifically the comparison of the jerking of the eyes of the driver during the HGN test from alcohol impairment v. general fatigue in non-drinking drivers. The study found that there was a 55% false positive rate due to fatigue as opposed to alcohol consumption. Most significantly in that study, MORE THAN 50% OF THE SUBJECTS TESTED POSITIVE FOR EYE JERKING (NYSTAGMUS) WITH AN ACTUAL BAC LEVEL OF 0.0% (no alcohol) !!

In the study, “Field Sobriety Tests: Are they Designed for Failure?” 79 Perceptual and Motor Skills, 1994, by Cole and Nowaczyk, two groups of seven law enforcement officers each viewed videotapes of 21 sober individuals performing a variety of field sobriety tests or normal-abilities tests, e.g., reciting one’s address and phone number or walking in a normal manner. Officers judged a significantly larger number of the individuals as impaired when they performed the field sobriety tests than when they performed the normal-abilities tests.

The work of Dr. Spurgeon Cole (one of the authors) is also discussed at length in the case, United States v. Horn, 185 F. Supp. 2d 530 (D. Md. 2002). The Horn Court noted Dr. Cole’s critique of NHTSA’s original validation research not being peer-reviewed by the scientific community and it’s overall unreliability:

47% of the subjects tested in the 1977 NHTSA laboratory study who would have been arrested by the testing officers for driving while intoxicated (BAC of 0.10 or greater) actually had BACs below 0.10;

in the 1981 Final Report, 32% of the participants in the lab study were incorrectly judged by the testing officers as having BACs of 0.10 or greater; and

the accepted reliability coefficient for standardized clinical tests is .85 or higher, yet the reliability coefficients for the SFSTs, as reported in the NHTSA studies, ranged from .61 to .72 for the individual tests and .77 for individuals that were tested on two different occasions while dosed to the exact same BAC. More alarmingly, inter-rater reliability rates (where different officers score each subject) ranged from .34 to .60, with an over-all rate of .57.

Dr. Cole theorized that the SFSTs, particularly the walk and turn test and one leg stand test, required subjects to perform unfamiliar, unpracticed motions and noted that a very few miscues result in a conclusion that the subject failed and had a BAC in excess of 0.10.

His hypothesis was that individuals could be classified as intoxicated / impaired as a result of unfamiliarity with the test, rather than actual BAC.

He tested this hypothesis by videotaping twenty-one completely sober individuals performing either “normal-abilities tests” (such as reciting their addresses or phone numbers or walking in a normal manner) or the WAT and OLS tests. The results of the study were that 46% of the officers that viewed the videotape of the sober individuals performing the SFSTs rated the subjects as having had too much to drink, as compared to only 15% reaching this decision after seeing the videotape of the subjects performing the normal-abilities tests.

The study, “Statistical Evaluation of Standardized Field Sobriety Tests,” 50(3) J Forensic Sci (2005), by Hlastla, Polissar, Oberman, is a critique of NHTSA’s report on standardized field sobriety testing which alleges the SFSTs as being 91% accurate in predicting Blood Alcohol Concentration (BAC) as lying at or above 0.08%.

The study notes that NHTSA’s conclusions regarding accuracy are heavily weighted by the large number of subjects with very high BAC levels, and re-analyzes the original NHTSA data with a more complete statistical evaluation.

The study’s evaluation indicates that the accuracy of the SFSTs depends on the BAC level and is much poorer than that indicated by the NHTSA research using the same numbers. The study found that while the SFSTs may be usable for evaluating suspects for BAC, the means of evaluation must be significantly modified to represent the large degree of variability of BAC in relation to SFST test scores.

OTHER NUMBERS COOKED BY NHTSA IN RESULTS-BASED, BIASED STATISTICS REGARDING DWI ACCIDENTS

For at least the last twenty years NHSTA and MADD have justified the erosion of Constitutional rights and the move toward what is for all practical purposes prohibition by claiming there is ““carnage on our highways caused by drunk drivers.”

Year after year NHTSA claims that there are approximately 18,000 alcohol related deaths on our highways. “Alcohol caused” deaths are not the same as “alcohol related.” NHTSA’s sleight of hand is that if anyone has consumed alcohol, they deem it alcohol related.

When the General Accounting Office (GAO) reviewed these figures form the National Highway Traffic Safety Administration, the GAO reported that they “raised the methodological concerns calling their conclusions into question.” NHTSA’s numbers “fall short of providing conclusive evidence that 0.08% BAC laws were, by themselves, responsible for reductions in alcohol related fatalities”.

This means that the statistics were not valid when examining alcohol related deaths, much less alcohol caused deaths.

Some independent investigations have come up with numbers much different from those published by NHTSA.

The Los Angeles Times found that only about 5,000 deaths per year involved a drunk driver causing the death of a sober driver, passenger, or pedestrian. Responsibility in DUI Laws, Inc. put the number at closer to 3,000.

Not that any of these deaths is a good thing, I personally had a good friend from childhood recently killed in a DWI head-on collision, but you see the point. NHTSA cooks it’s numbers however is convenient to stand for whatever proposition it is attempting to jam down some State’s throat at that moment. Just you wait, the 0.05% per se limit, is on it’s way. If States won’t comply, they will lose their federal highway money just like when we dropped to 0.08%. Never mind the fact that all we are doing is increasing the net to arrest people who are not impaired because they have crossed a threshold that is scientifically unreliable, and are being persecuted for having a couple of drinks and driving home, despite it being allegedly legal, rather than focus on the true problem in drunk driving, which is repeat offenders who continually blow off of the chart and are actually impaired and a menace to everyone driving. If we as a society really want prohibition all over again, why all the smoke and mirrors?

NHTSA continues to mislead the public to justify the passage of increasingly punitive DWI laws throughout the country.

MADD Attends Missouri Checkpoints

A new national trend is for MADD representatives to attend sobriety checkpoints or roadblocks and “help” the police, despite thier lack of law enforcement training. Around the nation, the police have been attempting to hide the fact that many parties at checkpoints are not, in fact, actual officers, but MADD mothers. When pressed about the issue in recent articles, the police have often taken the position that MADD’s presence at sobriety checkpoints is “out of their control.” It has been reported in some cases that MADD is at the checkpoints serving the police coffee and doughnuts. In other cases, the MADD mothers are actually accosting drivers passing through with their own commentary and pictures of people killed in DWI incidents.

This national trend has recently hit Missouri, and the police in Missouri are less bashful about the possible impropriety of the MADD mothers at checkpoints. St. Louis new media recently reported that MADD is now joining police in sobriety checkpoints in the St. Louis area and are confronting all drivers that have been drinking whether at the checkpoint whether they are arrested for being above the legal limit or not.

The St. Louis news media indicated that MADD was “not sure what they would say,” but the police seemed pleased with the MADD presence at checkpoints, and that MADD’s “presence is enough.” Missouri is not even trying to hide MADD’s mothers at checkpoints as in other states. The MADD mothers are reported to be at the side of officers at stopped vehicles, showing drivers pictures of victims killed in drunk driving incidents whether the driver is above the legal limit or not.

It certainly appears legally improper to me that MADD mothers are present at DWI sobriety checkpoints in Missouri. There are very strict rules for sobriety checkpoints that the police must comply with, or else they are unconstitutional.

A vehicle checkpoint or stop is a seizure under the Fourth Amendment to the Constitution of the United States. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L. Ed. 2d 412 (1990). The “essential purpose” of the Fourth Amendment “is to impose a standard of ‘reasonableness’ upon the exercise of discretion” by law enforcement officials in order to protect the “privacy and security of individuals” from “arbitrary invasions”. Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979).

Generally, seizures that are not based upon a particularized suspicion of criminal activity are unreasonable. Terry v. Ohio, 392 U.S. 1, 21 n. 18, 88 S.Ct. 1868, 1879- 80 n. 18, 20 L.Ed.2d 889 (1968). However, stopping motorists on public highways may be reasonable even in the absence of particularized suspicion of crime as long as those stops are conducted under certain procedures. State v. Damask, 936 S.W.2d 565, n. 13 (Mo. En Banc. 1996) citing Sitz, 496 U.S. at 449-450, 110 S.Ct. at 2484-85. “This is NOT to say that a detention of the motorist and a subsequent search can be made without at least a reasonable suspicion. A differentiation between the initial stop and a subsequent detention and search is necessary to apply the Fourth Amendment’s ‘reasonable’ standard properly. Sitz, 496 U.S. at 450-51, 110 S.Ct. at 2485-86; Welch, 755 S.W.2d at 627).

The reasonableness of a seizure that is less intrusive than a traditional arrest depends on the balance between the public interest in preventing criminal activity and the individual’s right to be free from arbitrary interference by law officers. Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). The analysis involves a weighing of three factors: (1) the gravity of the State’s interest served by the checkpoint; (2) the checkpoint’s effectiveness in advancing the public interest; and (3) the degree to which the checkpoint interferes with or intrudes upon the traveling public. Id. at 50-51, 99 S.Ct. at 2640-41.

The central concern in balancing these elements is to ensure that a person’s “reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of” law enforcement officers. Id. at 51, 99 S.Ct. at 2640.

To satisfy the demands of the Fourth Amendment, seizures must be based either on specific, objective facts indicating the necessity of seizing a particular individual, or the seizure must be carried out in accordance with a plan that provides “explicit, neutral limitations” on the conduct of the law enforcement officers participating in the seizure. Brown at 51, 99 S.Ct. at 2640.

Vehicle checkpoints are not unconstitutional per se. However, they must be conducted in a manner the Court deems appropriate. In Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L. Ed. 2d 412 (1990), the United States Supreme Court held that a state’s use of a highway sobriety checkpoint does not per se violate the Fourth Amendment to the United States Constitution. Article I, Section 15 of the Missouri Constitution provides the same protection against unreasonable searches and seizures as the Fourth Amendment to the Constitution of the United States. State v. Sweeney, 701 S.W.2d 420, 425 (Mo. En banc. 1985). Thus, any analysis of search and seizure questions under the Fourth Amendment is identical to search and seizure questions arising under Missouri law. State v. Damask, 936 S.W.2d 565, 570 (Mo. En Banc 1996).

Properly operated checkpoints are constitutional under the Fourth Amendment. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); State v. Welch, 755 S.W.2d 624 (Mo.App.1988); State v. Vanacker, 759 S.W.2d 391 (Mo.App. S.D.1988); State v. Payne, 759 S.W.2d 252. (Mo.App. E.D.1988).

CHECKLIST FOR A CONSTITUTIONALLY VALID ROADBLOCK

In Missouri, Welch v. State, 755 S.W.2d 624, 626-27 (Mo. Ct. App. 1988) provides a checklist or criteria for determining whether or not a particular vehicular roadblock passes Constitutional muster. Since Welch, Appellate Courts have expressed extreme reluctance to sanction a checkpoint unless it is created and conducted with all the constitutional safeguards employed in the Welch checkpoint. See State v. Canton, 775 S.W.2d 352 (Mo.App.1989). See also State v. Payne, 759 S.W.2d 252 (Mo. App. 1988); and State v. Vanacker, 759 S.W.2d 391 (Mo. App. 1988).

While the Welch court held the sobriety checkpoint at issue therein constitutional, it emphasized there that the checkpoint had proceeded pursuant to the following criteria thus making it constitutional:

(1) the checkpoint was conducted pursuant to a designed plan based upon specific data concerning alcohol related accidents occurring in the area in the past;

(2) the procedures for the roadblock were in writing; the checkpoint was established by written order of a command officer; the operation of the checkpoint was supervised by high ranking officers, and that full instructions including a copy of the order, were given to field personnel; and,

(3) the checkpoint was established in a way to give maximum notice to the drivers of what was ahead and to provide for their safety; and finally, the delay to the drivers was minimal. Welch, 755 S.W.2d at 632-3.

In short, once upon a time there was a presumption of innocence in the United States, and citizens were presumed to be free from harassment and unreasonable searches without cause. Ordinary drivers, even those drinking a couple of drinks and driving home (which is of course not illegal), should not be subjected to this harassment. If the police want to take everyone at a checkpoint that is arrested for DWI and make them listen to the MADD mothers at that time, that is one thing.

However, I would note that Missouri drivers are already required in many instances to attend a MADD “VIP” “victim impact panel” (which makes MADD money, of course) when a driver pleads guilty to DWI. At the victim impact panel the driver is educated (properly in those instances) of loved ones killed by drunk drivers and the problems associated with DWI.

Further, I think it is legally obvious that the Welch Court did not envision MADD or similar non-law enforcement personnel or political groups at checkpoints, solely for the purpose of intimidating drivers passing through who are not arrested for DWI. These practices could arguably invalidate checkpoints according to the checklists discussed (although Court rulings never cease to amaze in the lengths they will go to say “harmless error”).

As discussed in other posts, the Kansas City Police routinely arrest drivers at checkpoints below the legal limit despite the law providing that these cases shall all be dismissed unless there is valid evidence of other observations of substantial observation. Imagine if citizens concerned with the Constitution being trampled also attended checkpoints handing out coffee and/or legal advice to these innocent drivers below the legal limit? Of course, these citizens would be treated slightly different than the MADD mothers.

MO Police Officers' Ability To Detect Impaired Motorists in DWI Cases

NHTSA, The National Highway Traffic Safety Administration, has spent immense amounts of money attempting to “standardize” the tests that drivers are asked to perform to determine whether or not they are above the legal limit. A more thorough discussion on standardized field sobriety tests can be found at: “Standardized Field Sobriety Testing and Cross Examination of The Arresting Officer.”

While police officers are certainly supposed to attempt to administer standardized field sobriety tests as part of their training in determining whether or not someone is driving impaired, the State of Missouri will, of course, attempt to show probable cause to arrest in DWI cases where no field sobriety tests are available, either because the officer did not instruct, demonstrate, administer or score these tests correctly or where the driver refused to take the field sobriety tests.

Our office is commonly asked about the ability of police officers to accurately detect whether or not drivers suspected of DWI are impaired or merely exhibiting signs of alcohol consumption absent the results of field sobriety testing.

There are several studies on this topic, and the results of these studies should be disturbing, although not exactly surprising, to the driver who has had a couple of drinks and is well below the legal limit, but has experienced facing a DWI investigation when pulled over due to presence of the “reliable” clues of alcohol consumption police rely on in making DWI arrests.

In a study entitled, “Psychology, Public Policy, and the Evidence for Alcohol Intoxication,” Am. Psychologist 1070 (Oct. 1983), which was conducted at Rutgers University’s Alcohol Behavior Research Laboratory, attempts were made to quantify the ability of police officers, bartenders, and social drinkers to detect the level of alcohol impairment in drinking individuals. Each of these three groups were broken down into specific categories.

The study began with lay witnesses, or “social drinkers” ability to determine alcohol impairment in other drinking subjects. The subjects, who themselves were social drinkers were exposed to four individuals, both men and women, who they were told were drinking various amounts of alcohol. Some had consumed various amounts of alcohol, and others had not consumed at all. All of the four subjects were brought into a room with the “social drinkers,” allowed to be interviewed at length, and then each of the four left the room to allow the social drinkers to attempt to determine the level of alcohol impairment in each of the four individuals.

The study determined: “The assumption that social drinkers would prove to be accurate judges of the BAC of other persons was not confirmed. On only 4 of 16 occasions did a significant number of subjects correctly classify a target on a three-stage categorical index of intoxication level. If determining whether a man is sober of intoxicated is a matter of common observation, then our subjects apparently lacked this capacity.” Am. Psychologist at 1072.

The study then proceeded to the second category, bartenders, who would presumably have more ability to determine whether or not someone was alcohol impaired, as they are obviously exposed to drinking subjects in a constant fashion. The setting for this part of the study was conducted in a bar, using similar testing standards.

The study determined for the bartenders: “The bartenders correctly rated a target in only one of four instances. Contrary to expectation, no relationship between years of experience as a bartender and BAC estimation accuracy was found. These data suggest strongly that these bartenders did not possess and had not acquired special knowledge or skill in identifying intoxicated persons.” Am. Psychologist at 1074.

Finally, the third group of police officers was tested using 30 police officers from New Jersey. 15 of the police officers were tested in circumstances similar to the first test, and 15 of the police officers were tested in situations like they might find while conducting a DWI investigation after a routine traffic stop.

The results: “When police observers in the laboratory condition were compared to social drinkers who had experienced an identical procedure, no difference in rating accuracy was found. Officers in the arrest analogue condition were somewhat more accurate than their colleagues in the laboratory condition but not significantly so.” Am. Psychologist at 1076.

The study concluded: “the results of the three experiments described here are not reassuring. All three of the subject groups studied– social drinkers, bartenders, and police officers– correctly judged targets’ levels of intoxication only 25 percent of the time.” Am. Psychologist at 1076.

ODOR OF ALCOHOL

One of the most common clues cited as a basis for believing someone is alcohol impaired in a DWI arrest is the presence of the odor of alcohol. Rarely is there a case where the odor of alcohol is not alleged.

In 1999, the same researchers who conducted NHTSA’s validation research for field sobriety testing also conducted a study on the ability of police officers to accurately detect alcohol impairment from the odor of alcohol. See Herbert Moskowitz, Marcelline Burns & Susan Ferguson, Police Officers’ Detection of Breath Odors From Alcohol Ingestion, 31 Accident Analysis and Prevention 175 (May 1999).

Similar to the Rutger’s University study previously discussed, this study found that the police officers’ determinations that subjects were below, at, or above certain blood alcohol levels were random guesses, and that blood alcohol level cannot be accurately determined from the odor of alcohol.

FLUSHED FACE OR RED OR GLASSY EYES

Despite the fact that the police almost always have some combination of “flushed face,” or “bloodshot,” “red,” or “glassy eyes” listed as indicia of their belief that the arrested driver is impaired by alcohol, another study, also conducted by NHTSA, Jack Stuster, U.S. Department of Transportation, NHTSA Final Report, The Detection of DWI at BAC's Below 0.10, DOT HS­808-654 (Sept. 1997), p. E-10, specifically discounted these clues in attempting to make the study more accurate.

This study found: “Finally, some cues were eliminated because they might be indicators more of social class than of alcohol impairment. For example, officers informed us that a flushed or red face might be an indication of a high BAC in some people. However, the cue also is characteristic of agricultural, oil field, and other outside work. Similarly, bloodshot eyes, while associated with alcohol consumption, also is a trait of many shift workers and people who must work more than one job, as well as those afflicted by allergies. A disheveled appearance similarly is open to subjective interpretation. We attempted to limit the recommendation to clear and objective post-stop behaviors.”

The Detection of DWI at BAC's Below 0.10, DOT HS­808-654 (Sept. 1997), p. E-10.

MADD's Hypocrisy Over DWI Arrests

Recently, in Ocean City, Maryland, Delaware State Representative John C. Atkins was stopped for DUI, but not arrested when the police figured out who he was when he flashed his State Rep. ID. This was despite swerving in his vehicle and blowing a 0.14 in a portable breath test in the field. He also allegedly had the strong odor of alcohol, several empty beer bottles on the floor, glassy and bloodshot eyes, and admissions of drinking that evening.

Now don’t get me wrong, I am a defense attorney, I support letting a driver go who is merely drinking without showing signs of impairment, because having some drinks and driving home is not illegal if you are not impaired. However, I do have a problem applying different sets of rules to different classes of people.

Does anyone think a normal person exhibiting these signs would not be at least arrested and taken to the station to blow into the real breath machine or take a blood test? Of course not…

These same clues that the driver showed in that case, with nothing more, are always used as the basis for the alleged probable cause the police use to make DWI arrests in Missouri. I cannot think of one Missouri police officer I have encountered who would not arrest a member of the general public for DWI who exhibited these same clues, with or without field sobriety testing.

Lawyers for the Missouri Director of Revenue routinely argue at hearing that it does not matter how poorly officers administer field sobriety tests, or conduct their investigation, or do anything for that matter- their position is that any sign of possible intoxication that any lay person can observe in a driver, no matter how slight, can be the basis of probable cause to arrest for DWI no matter how many mistakes the police make during the arrest. (Not that I agree with them of course).

Inexplicably, MADD, issued a press release in the case supporting the non-arrest decision of the officer who made the stop of the state representative like a bunch of hypocrites, because the officer had made hundreds of DUI arrests in the past (but apparently not politicians just the general public).

If he was actually sober, I wonder why the police sent an officer down to drive the man and his wife home? If he had killed someone, you would be hearing these same hypocrites wanting him executed and would make him the poster boy for why we need to drop the legal limit even lower to 0.05.

With the salaries of some of the MADD folks being shown to be in the range of $400,000 a year for constantly pushing an agenda that keeps them useful, if you want to know what is at the bottom or heart of an issue they are taking a stand on, all you need to do is follow the money. Of course they support the non-arrest decision of a politician who blow 0.14 on a PBT, when they simultaneously want members of the general public convicted at 0.08 (and would like it lowered to 0.05) because in this case, they do not want to bite the hand that feeds in state legislatures. . . .

Similarly, MADD had another recent miraculous lack of their usual righteous indignation in a DUI case. Nicholas Causey, the son of a former Executive Director of MADD, was recently convicted of DUI in Broward County, Florida, but the Judge in the case ultimately granted a motion for new trial, partly due to jury misconduct, but also partly due to misconduct of the former Executive Director herself!

Mr. Causey, refused the breath test, and the arresting officer accused him of urinating on the floor of the holding area at the jail, and his attorney argued that he had thrown a cup of water into the corner after receiving it from the officer. When the judge got up at one point to use the restroom, Mr. Causey’s ex-Executive Director of MADD mother (who was not a party to the case, mind you) said in front of the jury, “maybe I’ll go right here in front on the floor.”

In another recent case, MADD also backpeddled from the rhetoric and psychobabble reserved for the general masses. Gisela Zetsche, the wife of the president and CEO of the Chrysler Group (Chrysler Group is a “platinum sponsor investor in MADD) has a case pending against her in Michigan for throwing an after-prom party for her children and classmates with alcohol and little supervision.

MADD, of course, is “reserving judgment” on a platinum sponsor’s wife’s actions, where they had just flamed out in the Washington post on how heavy incarceration is warranted for parents who have parties with alcohol for their highschool-age kids. They were even applauding at that time an eight-year prison term for one Richmond couple convicted of the same thing they were “reserving judgment” on regarding their platinum donor.

Once again, all you need to do is follow the money.

MADD is also not above being vindictive even to their own when it comes to money. John Bates, the founder of MADD in Canada, was recently stripped of his power in the organization by being removed from the two key monetary committees, the finance and policy committees, for speaking out against the group’s handling of money.

Bates allegedly was asking too many questions about the way MADD’s head office was spending donor money in that most of the millions raised is used to raise more cash through paid telemarketers, and direct mail companies.

While MADD has previously claimed that 83.6 % of donated funds go to charity programs, recent investigation supports his allegations, which show that approximately 81% of the donor money is actually spent on fundraising and administration. Ironically, MADD’s top award, the John Bates Volunteer of the Year award – is awarded in his name. I guess that was before he asked questions about MADD’s squandering of donor money.

MADD is Canada’s largest anti-drunk driving charity, with revenues of about $12 million annually.

NJ State vs. Chun, Draegar Alcotest 7110 MKIII-C Breath Testing Machine

There is mention in other posts of the source code litigation which is pending for breath testing machines around the country. Evan Levow and several other attorneys have been pursuing the source code litigation in New Jersey for more than two years. Defense Counsel was successful in obtaining the source code for the Draegar Alcotest 7110 MKIII-C breath testing machine in a case called State v. Chun.

Draegar, the manufacturer of the breath testing machine, had to comply with the New Jersey Supreme Court Order when it made itself a party to the litigation. Once the source code was ordered to be produced, the New Jersey lawyers hired a software analysis house, Base One, to analyze the source code of the breath machine for potential errors.

Both defense and the State are presenting summaries of finding from an independent software company and from the manufacturer, Draeger. The New Jersey Supreme Court will rule on the reliability of the breath machine sometime this month. If the machine is deemed “unreliable” it will be interesting to see what happens, to put it mildly, if the State of New Jersey attempts to recover from the manufacturer the near $7 million dollars that it has spent on these machines in the last four years.

The summary of the software house findings for the source code that the NJ Supreme Court will be considering is alarming.

The defense company’s summary first notes, that despite Draeger’s protestations that the code was proprietary, Base One found that the code consists mostly of general algorithms arranged in a manner to implement the breath testing sequence. “That is, the code is not really unique or proprietary. ”

In a report released August 28, 2007, Base One determined:

As a matter of public safety, the Alcotest should be suspended from use until the software has been reviewed against an acceptable set of software development standards, and recoded and tested if necessary. An incorrect breath test could lead to accidents and possible loss of life, because the device might not detect a person who is under the influence, and that person would be allowed to drive. The possibility also exists that a person not under the influence could be wrongly accused and/or convicted.

Draeger reviewed the code, as well, through its software house, SysTest Labs, which agreed with Base One, that the patchwork code that makes up the 7110 is not written well, nor is it written to any defined coding standard. SysTest said, “The Alcotest NJ3.11 source code appears to have evolved over numerous transitions and versioning, which is responsible for cyclomatic complexity.”

The best thing SysTest said about the machine was, “The translation from German to English of the comments within the major components shows the logical intent of the programmers to produce reliable and valid test results. SysTest was unable to find any evidence of any intention to mis-direct or re-direct the test results or report anything other than valid results.”

SysTest only looked for “mal-ware”, not for functioning of the code. Base One, however, did an extensive evaluation, finding 19,400 potential errors in the code.

Among its findings are:

1. The Alcotest Software Would Not Pass U.S. Industry Standards for Software Development and Testing:

The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style.

The software development life-cycle concept is governed by one of the nationally and internationally recognized development standards to prevent defects from entering the software during the design process, and to find and eliminate more defects as the software is coded, tested, and released to the field. This concept of software development using standards requires extensive and meticulous supporting data, and notations in source files, and a configuration management system. None of this methodology is evident in the Alcotest code. Further, the decision method of how to allocate the architecture and assignment of tasks does not match any of the software standards. This further substantiates that software development standards were not used to verify or test the software, including the ISO 9000 family of standards.

It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Federal Drug Administration (FDA), as well as commercial standards used in devices for public safety. This means the Alcotest would not be considered for military applications such as analyzing breath alcohol for fighter pilots. If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards.

2. Readings are Not Averaged Correctly:

When the software takes a series of readings, it first averages the first two readings. Then, it averages the third reading with the average just computed. Then the fourth reading is averaged with the new average, and so on. There is no comment or note detailing a reason for this calculation, which would cause the first reading to have more weight than successive readings. Nonetheless, the comments say that the values should be averaged, and they are not.

3. Results Limited to Small, Discrete Values:

The A/D converters measuring the IR readings and the fuel cell readings can produce values between 0 and 4095. However, the software divides the final average(s) by 256, meaning the final result can only have 16 values to represent the five-volt range (or less), or, represent the range of alcohol readings possible. This is a loss of precision in the data; of a possible twelve bits of information, only four bits are used. Further, because of an attribute in the IR calculations, the result value is further divided in half. This means that only 8 values are possible for the IR detection, and this is compared against the 16 values of the fuel cell.

4. Catastrophic Error Detection Is Disabled:

An interrupt that detects that the microprocessor is trying to execute an illegal instruction is disabled, meaning that the Alcotest software could appear to run correctly while executing wild branches or invalid code for a period of time. Other interrupts ignored are the Computer Operating Property (a watchdog timer), and the Software Interrupt.

5. Implemented Design Lacks Positive Feedback:

The software controls electrical lines, which switch devices on and off, such as an air pump, infrared source, etc. The design does not provide a monitoring sensory line (loop back) for the software to detect that the device state actually changed. This means that the software assumes the change in state is always correct, but it cannot verify the action.

6. Diagnostics Adjust/Substitute Data Readings:

The diagnostic routines for the Analog to Digital (A/D) Converters will substitute arbitrary, favorable readings for the measured device if the measurement is out of range, either too high or too low. The values will be forced to a high or low limit, respectively. This error condition is suppressed unless it occurs frequently enough.

7. Flow Measurements Adjusted/Substituted:

The software takes an airflow measurement at power-up, and presumes this value is the “zero line” or baseline measurement for subsequent calculations. No quality check or reasonableness test is done on this measurement. Subsequent calculations are compared against this baseline measurement, and the difference is the change in airflow. If the airflow is slower than the baseline, this would result in a negative flow measurement, so the software simply adjusts the negative reading to a positive value.

If the measurement of a later baseline is taken, and the measurement is declared in error by the software, the software simply uses the last “good” baseline, and continues to read flow values from a declared erroneous measurement device.

8. Range Limits Are Substituted for Incorrect Average Measurements:

In a manner similar to the diagnostics, voltage values are read and averaged into a value. If the resulting average is a value out of range, the averaged value is changed to the low or high limit value. If the value is out of range after averaging, this should indicate a serious problem, such as a failed A/D converter.

9. Code Does Not Detect Data Variations

10. Error Detection Logic:

The software design detects measurement errors, but ignores these errors unless they occur a consecutive total number of times. For example, in the airflow measuring logic, if a flow measurement is above the prescribed maximum value, it is called an error, but this error must occur 32 consecutive times for the error to be handled and displayed. This means that the error could occur 31 times, then appear within range once, then appear 31 times, etc., and never be reported. The software uses different criteria values (e.g. 10 instead of 32) for the measurements of the various Alcotest components, but the error detection logic is the same as described.

11. Timing Problems:

The design of the code is to run in timed units of 8.192 milliseconds, by means of an interrupt signal to a handler, which then signals the main program control that it can continue to the next segment. The interrupt goes off every 8.192 ms, not 8.192 ms from my latest request for a time delay. The more often the code calls a single 8.192 ms interrupt, the more inaccurate the software timing can be, because the requests from the mainline software instructions are out of phase with the continuously operating timer interrupt routine.

12. Defects In Three Out Of Five Lines Of Code:

A universal tool in the open-source community, called Lint, was used to analyze the source code written in C. This program uncovers a range of problems from minor to serious problems that can halt or cripple the program operation. This Lint program has been used for many years. It uncovered that there are 3 error lines for every 5 lines of source code in C.

One item of particular interest is that while Draeger’s counsel claims that the “The Alcotest [7110] is the single best microprocessor- driven evidential breath tester on the market”, Draeger has already replaced the antiquated 7110 with a newer Windows® based version, the 9510. The computer code in the 7110 is written on an Atari®-styled chip, utilizing fifteen to twenty year old technology in 1970s coding style.

It will be interesting to see how the situation unfolds. More to come- Here’s a big good luck to our New Jersey brethren.

Driver’s Right to An Independent Chemical Test in Missouri DWI Cases

The Driver’s Right to An Independent Chemical Test in Missouri DWI Cases

A little known but important fact that most drivers are not aware of in Missouri DWI cases is that they have a right to an independent chemical test at their own expense (separate from the police test at the station—usually the police breath test) in certain instances. This is an important right, but a limited one. You have to know the rules, or you are not going to get your independent test.

Pursuant to RSMo. 577.020, a driver has a statutory right to have “a physician, or a qualified technician, chemist, registered nurse, or other qualified person, at the choosing and expense of the person to be tested, administer a test in addition to any administered at the direction of a law enforcement officer.”

It is a commonly known biological fact that the amount of alcohol in your bloodstream, which is determinant of intoxication and hence of your guilt or innocence on any Missouri DWI charge, is soon dissipated by your body’s natural processes.

Thus, an objective test of sobriety, to be probative, must be administered as quickly as possible after the initial arrest. 

The first thing that I would point out to Missouri drivers is you must immediately be aware of the fact that you do not get a choice on which chemical test to take if you are arrested for DWI in Missouri.

If the police initially request a breath test, you must take the breath test. If they initially request a blood test, you must take a blood test. The police also have the right to request any two chemical tests they choose, and you do not have the right to refuse either test if two are requested, or you will be deemed to have refused, and face having your driver’s license suspended, even if you took one of the two requested chemical tests. This is not to say in certain cases that you should not refuse any chemical test. Know your rights!

If you have been arrested for DWI, and the officer asks you to take a breath test after reading you a proper implied consent warning and you refuse this test by asking for a blood test instead, you will lose your right to the independent test, and you will also be deemed to have “refused” a chemical test by refusing the breath test. Kiso v. King, 691 S.W.2d 374 (Mo. App. W.D. 1985); State v. Brown, 804 S.W.2d 396 (Mo. App. 1991) (If the officer requests one type of test and the subject refuses, but volunteers to take another type of test, the subject’s conduct still constitutes a refusal).

In short, to preserve your right to an independent chemical test in a Missouri DWI case, you must first submit to the chemical test requested by the officer, and then ask for your independent test (preferably a blood test).

You need to realize that the Implied Consent warning that is read to you by the police when you are arrested for DWI which advises you of your rights to take or refuse a chemical test does not provide any information about the right to an independent chemical test.

If you do not know your rights, and do not know to ask for an independent blood test after you have blown for the police they do not have to advise you of your rights or give you the blood test! Know your rights!

You should also be aware that there is hardly any caselaw interpreting this independent chemical test provision in the Missouri statute regarding requirements the police have to follow when you request an independent test. The statute also further states that: “The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.”

The only Missouri case on point at the time of this writing is Pierce v. Director of Revenue, 51 S.W.3d 888 (Mo. App. W.D. 2001).

In that case, the driver wanted to have a blood test instead of the breath test that the police requested after he was arrested for DWI. He went ahead and took the breath test requested by the police and tested above the legal limit, but then continued to request a separate blood test. The police did not provide him his requested independent test, but they did released him 45 minutes later. The court in the Pierce case held that releasing him in a timely fashion did not deny him an independent chemical test, nor did it deny him getting a independent chemical test on his own.

POLICE DEPARTMENT POLICIES REGARDING “MANDATORY HOLDS” IN MISSOURI DWI CASES

While the Pierce case seems to indicate that if the police release you in a timely manner, you have to go get an independent test yourself or you waive the right, many police departments in Missouri DWI cases have a policy of a “mandatory hold” in all DWI cases.

This usually means that if someone is arrested for DWI, the person will be held for a set number of hours if there is a mandatory hold policy in place by that police department.

The imposition by the police of a mandatory hold policy on you when you have requested an independent blood test after submitting to the requested police breath test clearly imposes a material obstacle in the path of your ability to obtain an additional test of your blood or breath, thereby denying your statutory right under RSMo. 577.020 to an additional test.

The admissibility of breath tests in Missouri is conditioned upon the requirement that the tests “shall” be performed in compliance with section 577.020 to 577.041. Reed v. Director of Revenue, 184 S.W.3d 564 (Mo. 2006). A failure to comply with the provisions of sections 577.020 to 577.041 means that the chemical analysis of the police test you consented to is not admissible in civil proceedings to suspend or revoke a driver’s license. Reed, supra.

In addition, you have a constitutionally protected property interest in your driver’s license and its deprivation or suspension by the government implicates the Due Process Clause. As the Missouri Supreme Court recognized in Dabin v. Director of Revenue, 9 S.W.3d 610 (Mo. 2000):

“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976).

Due process applies to the suspension or revocation of a driver’s license by the state. “Licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Dixon v. Love, 431 U.S. 105, 112, 52 L. Ed. 2d 172, 97 S. Ct. 1723 (1971). Id. at 614.

Your right of due process under Article I, Section 10 of the Missouri Constitution, and under the 14th Amendment to the United States Constitution, is denied if you are placed in a mandatory hold after properly invoking the right to an independent blood test after submitting to a police chemical test when arrested for DWI. 

The purpose of due process is to prevent fundamental unfairness, and one of its essential elements is the opportunity to defend. Due process of law applies to actions by the government to suspend your drivers license. Dabin, supra.

While there are no published decisions in Missouri on this issue besides Pierce, if you are placed in a mandatory hold after complying with the requirements of the statute in requesting an independent blood test, you should still be allowed at least the use of a phone to attempt to arrange for someone to come administer the independent test while you are in custody. This means a meaningful opportunity to get the test, and not less, to comply with due process.

Despite Missouri not yet having cases on point for this issue, there is respectable authority in other states for the proposition that you are deprived of due process of law when you are denied a reasonable opportunity, under such circumstances, to obtain an additional blood or breath test at his own expense. See People v. Burton, 163 N.W.2d 823 (Michigan 1968); State v. Munsey, 127 A. 2d 79 (Maine 1956); In re Newbern, 175 Cal App 2d 862 (Cal. 1959); and In re Koehne, 356 P.2d 179 ( Cal. 1960).

To the same effect, see In re Martin, 374 P2d 801, 803 (Cal. 1962), in which the court declared:

“But in no event can duly constituted authority hamper or interfere with efforts on the part of an accused to obtain a sampling of his blood, without denying to him due process of law. We are persuaded to such conclusion in any instance where the conduct of the authorities, whether through affirmative action or by the imposition of their rules and regulations, imposes any material obstacle in the path of the accused. It is sufficient if, in seeking to establish the fact of the alcoholic content of his blood, the authorities, by their actions or regulations, frustrate his reasonable efforts designed to produce probative evidence.” Id. Accord, see State v. Snipes, 478 S.W.2d 299 (Mo. 1972).

Under such circumstances, a qualified Missouri DWI attorney should object to the admission of the police chemical test into evidence on the grounds that the actions of the police, combined with the policies of the police department or the local judge in imposing a mandatory hold policy that denies the statutory right to an independent chemical test when properly requested, serves to deny your right of due process under Article I, Section 10 of the Missouri Constitution, and under the 14th Amendment to the United States Constitution.

Missouri DWI Breath Test Problems

One of the first objectives of the new Missouri Society for Criminal Justice, was to draft a position statement regarding breath testing issues in Missouri.

MISSOURI’S LEADING DWI DEFENSE ATTORNEYS CHARGE MISSOURI DEPARTMENT OF HEALTH WITH GROSS INCOMPETENCE AND CONCEALMENT OF CRITICAL PROBLEMS WITH MISSOURI’S BREATH ALCOHOL TESTING MACHINES! CALL FOR IMMEDIATE INVESTIGATION BY ATTORNEY GENERAL.

On October 31, 2006, the Missouri Supreme Court accepted transfer of the case of Vanderpool v. Director of Revenue, 2006 Mo. App. LEXIS 1042 from the Western District Court of Appeals.

Vanderpool deals with the nature and applicability of the Missouri Department of Health’s regulation which requires the police to “observe” a driver for a period of 15 minutes immediately prior to a breath test for alcohol. The decision of the Supreme Court will have major consequences to Missouri motorists who are arrested and accused of driving while intoxicated.

To better explain the significance of the issues before the Court, it is necessary to first examine the already “pathetic” nature of Missouri’s breath testing program.

Due to the scientific and technical nature of blood and breath testing issues, the Missouri legislature has deferred to the “expertise” of the Missouri Department of Health to establish “satisfactory techniques, devices, equipment, or methods” to conduct blood and breath tests. 577.020 and 577.026. In State v. Peters, 729 S.W.2d 243, 244-245 (Mo. Ct. App. 1987), the Missouri Court of Appeals recognized that:

“The above legislative enactments (Sections 577.020 and 577.026) are a substitute for the common law foundation for the introduction of evidence of analyses for blood alcohol, and are mandatory… If the State has failed to comply with these statutes the blood analysis is inadmissible and prejudicial.” Id. (Citations omitted).

Pursuant to that legislative authority, The Missouri Department of Health adopted rules pertaining to the admission of chemical tests of a driver’s blood or breath for alcohol. One of the requirements is that the test subject be “observed’ for at least 15 minutes immediately preceding the breath test.

The regulations do not specify exactly what the breath test officer must “observe” the driver for, but do indicate that no smoking or oral intake is allowed during this time. The breath testing regulations then require that if vomiting occurs, the breath test operator must start over with the 15 minute observation period. The intended purpose of the 15 minute rule is to insure that nothing occurs during the observation period which may contaminate the breath sample, and affect the reliability of the driver’s breath test. Supposedly, we don’t want innocent people going to jail. So what’s the big deal?

THE MISSOURI DEPARTMENT OF HEALTH HAS NOT APPROVED SATISFACTORY “DEVICES” AND “EQUIPMENT” FOR USE IN BREATH TESTING!

The Missouri Department of Health is directly responsible for selecting the evidentiary breath testing devices that will be used to tests citizens arrested and accused of drunk driving.
Early on, The Missouri Department of Health adopted “Specifications for Evidential Breath Testing Instrumentation” setting forth the minimum performance requirements of the devices used during the evidential breath testing process.

These specifications are usually adopted in connection with the DOH’s testing and evaluation of various breath test machines submitted by the respective manufacturers. Among other things, those specifications require that breath testing instruments abort the test in every case where mouth alcohol is present on the breath.

Back in the early 1990’s, The Missouri Department of Health conducted its evaluation of the Intoxilyzer 5000, manufactured by CMI, Inc. At that time, the mouth alcohol detection capabilities of the 5000 was tested.

In order to evaluate the mouth alcohol detection capabilities of the device, three test subjects blew into the 5000 after rinsing their mouths with an ethanol/water solution. Breath tests were then administered every two minutes until the instrument gave zero readings on all three test subjects. None of the test subjects had actually consumed any alcoholic beverages and their blood alcohol levels were all “zero” at the start of the experiment.

According to the Missouri Department of Health’s specifications, whenever mouth alcohol was present, the instrument should have produced an “INVALID SAMPLE” reading and aborted the testing process. It didn’t!

Only during the initial test run on each of the three test subjects did the machine perform properly and abort each subject’s test by indicating an INVALID SAMPLE. During the second breath test conducted on one of the test subjects, the 5000 falsely reported the individual’s BAC was .147%. During the forth test run on another subject, the 5000 falsely reported that the subject’s BAC was .061%. During the sixth test on the remaining subject, the 5000 falsely reported that the individual’s BAC was .124%. All of the falsely reported tests were followed by successive erroneous readings until the readings were down to zero between 10-20 minutes later.

This suggests to the writers that the 15 minute observation period is not sufficient to allow for the dissipation of mouth alcohol. At least 20 minutes should be required!
In none of those cases, did the Intoxilyzer 5000 abort the test and report an INVALID SAMPLE.

In short, the mouth alcohol detection system of the Intoxilyzer 5000 was found to be defective by The Missouri Department of Health’s own tests. Nevertheless, the machine was “approved” by The Missouri Department of Health for use in the State of Missouri. Go figure! The expression: “Good enough for government work” comes to mind.

As an aside, The Missouri Department of Health also evaluated the 5000 to determine if the instrument could detect the presence of other interfering chemical substances which might be present in a person’s breath. During this part of the evaluation, small amounts of various chemical substances were introduced into a 0.100 simulator solution. The mix was poured into a simulator which was connected to the Intoxilyzer 5000 and multiple tests were done to see what effect, if any, the presence of these chemical substances would have on the test results.

Under The Missouri Department of Health specifications, the instrument was required to be able to detect the presence of these various chemicals and abort the test, indicating an error message: “INTERFERENCE.” The instrument failed to detect Methanol, Butanol, and Acetone.

Acetone may be a substantial problem, as it is present in the breath of persons who are fasting or who suffer from diabetes. The testing results indicated that the Intoxilyzer 5000 could not distinguish between acetone and ethanol, and added to the .100 expected value.
In one instance, the 5000 produced a result of .111 instead of a .100, and did not abort the test. The same thing occurred when checking for Butanol, which produced an erroneous test result of .182%, and Methanol, which produced a reading of .126. Only six chemical substances were used to evaluate the instrument. Nevertheless, the machine was “approved” by the Department of Health for use in the State of Missouri. Go figure!

The Missouri Department of Health also claims that records of their initial evaluation of the BAC Datamaster no longer exist. One might ask how The Missouri Department of Health could possibly lose the paperwork relating to their evaluation and approval of the most widely used breath testing instrument in the State of Missouri.

A reliable source claims that the documents were intentionally destroyed in 1998, at or around the time of the deposition testimony of a member the breath testing program. The writers are calling upon the Attorney General to immediately launch an investigation into the mysterious disappearance of these and other documents which were not produced in response to formal court discovery requests.

In any event, several of the writers all own BAC Datamaster breath testing devices and all will attest to the fact (and demonstrate publically) that the Datamaster, like the Intoxilyzer 5000, does not reliably detect mouth alcohol.

The results of an “informal” study conducted by The Missouri Department of Health and The Missouri State Highway Patrol in 2000 also confirm the failings of the Datamaster in this regard.
Similarly, the BAC Datamaster used in Missouri was disapproved for use in England, Australia and New Zealand, in part because of its inability to distinguish other non-alcohol chemical substances on the breath.

THE MISSOURI DEPARTMENT OF HEALTH HAS FAILED IN ITS RESPONSIBILITY BY NOT APPROVING SATISFACTORY “TECHNIQUES” AND “METHODS” FOR BREATH TESTING!

Failure to Address Operational Problems

Even in light of the inability of both the Intoxilyzer 5000 and the BAC Datamaster to reliably detect the presence of mouth alcohol, The Missouri Department of Health continues to fail to address problems with the operational procedures being followed by breath test operators across the State.

In particular, The Missouri Department of Health has failed to properly train their breath test operators in the procedures that should be followed when certain error codes or messages appear during the testing process.

The writers have cross-examined dozens of breath test operators, and many maintenance supervisors, most of whom were not even familiar with the various error codes. Of particular concern is the fact that many, if not most operators, do not even know that the error code for mouth alcohol is “INVALID SAMPLE.”

When this error code appears, proper scientific protocol requires that the operator assume that there is mouth alcohol present, and wait an additional 15 minutes before giving a second test. The Missouri Department of Health, unlike the regulatory agencies in many other states, has failed to adopt any regulations on the subject.

In September of 2004, the Missouri State Highway Patrol issued its own policy and mandated that all troopers wait 15 minutes before administering a second test following an INVALID SAMPLE reading. They also mandated that the mouthpieces be changed, a new checklist be completed with the second test, and that the INVALID SAMPLE breath test ticket be retained as evidence. The writers of this article appreciate the fact that at least one State agency recognizes the problem and has decided to address an issue The Missouri Department of Health refuses to even acknowledge publically.

The Missouri Department of Health training slides obtained by the writers indicate that after obtaining an INVALID SAMPLE reading, the breath test operator should wait 15 minutes before administering a second test. The Missouri Department of Health has been very careful not to write this down in any training materials provided to the breath test operators and maintenance supervisors. In most cases, breath test operators are not even furnished with a list of the various error codes for the instruments for fear that defense attorneys will obtain them from the officer and use them in court.

Another operational problem is the frequent use of the no volume (“NV”) or sample control override key to override the sample controls on the BAC Datamaster. Publically, The Missouri Department of Health explains that the NV or sample control override button on the Datamaster is intended to allow an alcohol analysis in a breath sample on a subject who cannot meet the minimum requirements for an automated breath test.

According to National Patent Analytical Systems, Inc., the maker of the BAC Datamaster, this was never the intended purpose of the key. Rather, it was placed there for the convenience and use by maintenance technicians when conducting maintenance procedures on the work bench.
Secretly, The Missouri Department of Health has recognized that by utilizing the NV or sample control override key, in addition to overriding the Datamaster’s breath sampling criteria, when the NV key is depressed, the instrument no longer monitors the breath sample for a mouth alcohol occurrence.

The Datamaster’s breath sampling critieria is the minimum breath flow rate into the instrument; a leveling off of the BrAC slope; the minimum amount of breath delivered of 1.5 liters; and a reduction in the breath flow rate into the machine. These are essential to insure that a sample of alveolar or “deep lung” air is obtained. Under The Missouri Department of Health regulations, this is the only type of air that a breath test operator is allowed to test for alcohol content.
Use of the NV or sample control override key on the BAC Datamaster also adds an unauthorized step to the approved checklist to be followed by breath test operators. The Missouri Department of Health had gone so far as to draft a proposed change in the checklist to allow the use of the NV or sample control override key, but apparently decided against it.

A reliable source informed the writers that the documents relating to the proposed change were ordered destroyed by Missouri Department of Health personnel. Unfortunately for The Department of Health, at least one copy survived.

In any event, The Missouri Department of Health’s specifications for evidential breath testing instruments require that all buttons and keys which influence the subject test must be enclosed within the instrument, accessed only by the use of a code, or locked behind a locked access panel.
The NV or sample control override key is not so restricted, even though its use clearly influences the subject sample. Again, the Missouri State Highway Patrol stepped forward in September of 2004, and banned the use of the NV key by its troopers, despite The Missouri Department of Health not bothering to mandate such precautions. All states but one have banned the use of the NV key by regulation and/or have deactivated the override function.

Improper Repairs Being Made to Breath Test Machines

Another problem not known to the public has to do with who should be making major repairs to both the Intoxilyzer 5000 and the BAC Datamaster. As far as instruments maintained by agencies other than The Missouri State Highway Patrol, it appears that The Missouri Department of Health has delegated a large part of this responsibility to the CMSU Safety Center in Warrensburg.

Written Missouri Department of Health documentation obtained by the writers indicate that there has been a great deal of controversy between the manufacturers and the Safety Center regarding the propriety of the Safety Center making repairs which the manufacturers believe must be done at their factories in order to maintain the reliability of the machines.

In July of 2001, a former employee of The Missouri Department of Health breath test program wrote a letter directly to Bill Whitmar, then in charge of the breath alcohol testing program, and warned that CMI (the manufacturer of the Intoxilyzer 5000) had cautioned against certain repairs being made without a subsequent factory calibration, and advised that the machines would not hold up in court.

A list of 25 machines from 25 different departments that had received unauthorized repairs was attached to the letter. Apparently, the warning was disregarded, as the Safety Center continues to conduct such repairs instead of the machines being sent back to the factory for repairs and factory calibration.

Similarly, the makers of Datamaster have notified The Missouri Department of Health about problems related to repairs made to their equipment at the Missouri Safety Center.
In a July 2004 letter written by the President of NPAS, Inc., to The Missouri Department of Health, the manufacturer warned the Department of Health that:

“Incorrect or careless maintenance techniques, along with the use of parts that
we specifically do not recommend, will unfairly reflect on the maintenance
history of the instrument and could present serious issues if brought to the
attention of the courts.”

In another letter issued the same month, NPAS, Inc. warned that unsanctioned repairs had apparently been made to one of the Fort Leonard Wood Datamasters.
In a letter to the Missouri Safety Center in November of 2004, the President of NPAS, Inc. warned that “activities regarding maintenance performed by your staff may be deficient in several areas. Among these are:

1. A possible lack of competency on the part of technicians owing to the use of parts and procedures not sanctioned by us.
2. A possible lack of competency on the part of technicians owing to the quality of work as seen in the incorrectly installed sample chamber assemblies.
3. A failure to maintain complete and accurate records regarding the maintenance performed on these instruments.”

Because of these matters, the manufacturer indicated that it would not issue the Missouri Safety Center a “Service Center Certificate.”

Other repairs are being made by police officers in the field who have received a “Type II” permit from The Missouri Department of Health. A Type II permit “technically” authorizes such officers to make repairs to their police department’s breath test machine.

Pursuant to a subpoena served upon the manufacturer, a copy of an email sent to the President of NPAS, Inc. by Bob Welch at the Missouri Safety Center was recently obtained. In that e-mail, Welch stated that he agreed with the manufacturer of the Datamaster, and stated he also felt “it is unwise to train our Type 2 Supervisors to repair instruments in the field.”

Welch continued that he had “opposed this from the beginning, however it has also been drilled into us that we must keep instruments up and running and have fewer than 10% down statewide at any given time. So given this situation we must train our “field guys” at least in the basics of adjusting a voltage from time to time.”

The writers note that proper voltage settings are critical to the reliability of any breath test conducted on either the Intoxilyzer 5000 or the Datamaster. The writers also suggest that keeping the machines “running” is not a justification for delegating the responsibility for proper instrument repair in the field to those who are not capable of making the needed repairs.
Missouri Does Not Require Duplicate Breath Testing

In Missouri, under DOH regulations, a police officer is only required to administer one breath test following his or her arrest for Driving While Intoxicated. Currently, 28 states require that a motorist be given a second test to confirm the reliability of the first test.

The states are Alabama, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Idaho, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, Texas, Vermont, Virginia, Washington, Wisconsin and Wyoming.

Good scientific principles require it. As early as 1986, the National Safety Council Committee on Alcohol and Other Drugs recommended that at least two separate breath samples collected and analyzed individually. The Committee further recommended that the breath samples be collected at intervals of at least two, and not more than ten, minutes apart. The results must agree within .02%. The Chairman of that Committee was Kurt Dubowski, the father of breath alcohol testing in the United States, if not the world.

Think about it. When you balance your check book, do you run the numbers once? No. You check them twice to make sure that you, or the calculator, didn’t make a mistake. Mandatory dual testing would help eliminate the possibility of both operator and machine error.
Assume, for example, that an individual belches or regurgitates a small amount of alcohol up from the stomach into the mouth as he or she is blowing into the 5000 or Datamaster, causing an erroneously high reading of say, .147%. The mouth alcohol detection system does not work, and the instrument does not indicate that the sample is INVALID.

In Missouri, the test result will then be used as prima facie evidence of the driver’s intoxication, and the driver will be subjected to criminal penalties and the loss of his or her driver’s license.
In a duplicate testing state, however, after a short waiting period, during which time the mouth alcohol is presumably dissipating, the driver will be instructed to furnish a second breath sample.

This time, the machine reports that the driver’s BAC is .070%, which may or may not be representative of the driver’s true BAC. Since the results do not agree within .02%, an additional waiting period must occur, and a third test must be The third test must then agree with the second.

In short, in duplicate testing states, there is a built in protection against breath samples being contaminated with mouth alcohol. Eventually, if the Department of Health and the legislature don’t have the will or courage to change things, it will be up to our Courts to intervene. Incompetence can only be tolerated so long.

Until Missouri requires duplicate testing, however, it is absolutely essential that police officers are required to “carefully watch” the driver during the critical 15 minute observation period. That brings us to the Vanderpool case.

In Vanderpool v. Director of Revenue, 2006 Mo. App. LEXIS 1042, Vanderpool was arrested and charged with DWI. The arrest occurred in a remote part of Benton County at about 2:00 in the morning. The State Trooper who made the arrest then transported Vanderpool and Vanderpool’s passenger (who was not handcuffed or searched) to the Sheriff’s office in Warsaw, Missouri.

On the way to the Sheriff’s Office, in addition driving the vehicle over dark country roads and on a major interstate highway, the trooper carried on conversations with both Vanderpool and his passenger. Once they arrived at the station, Vanderpool was escorted inside, and was given a breath test less than 10 minutes later.

During the trial, Vanderpool objected to the admission of the breath test on the grounds that he had not been properly observed for a full 15 minutes preceding his breath test. The trial court agreed, and the breath test was not admitted into evidence.

The Director of Revenue appealed. In affirming the trial court’s decision, the Western District Court of Appeals noted that “(c)ommon sense tells us that a member of the Missouri Highway Patrol, who is trained to be a careful and safe driver at all times, operating his patrol vehicle on a rural highway in the middle of the night, would be “observing” the road and not his passenger.” Citing their previous decision in Carr v. Dir. of Revenue, 95 S.W.3d 121, 129 (Mo. App. 2002), the Court reiterated that:

“It is our belief that the ‘observation requirement’ is critical to determining whether in fact an individual has driven while illegally intoxicated. The results of a breathalyzer test are given much weight, as they should be, in our judicial system. However, in order to insure the veracity and precision of this testing device does not become undermined, it is imperative for the police to follow minimum administrative guidelines in observing the driver before the test is given.” Id.

In Carr, the Western District previously emphasized that:

“Drinking and driving experts are resolute that this fifteen minute waiting period plays a critical role to insure that the breathalyzer test achieves an accurate result. See 3 DONALD H. NICHOLS & FLEM K. WHITED III, DRINKING/DRIVING LITIGATION CRIMINAL AND CIVIL § 19:9 (2d ed. 1998) (”The arresting officer or Breathalyzer operator must continuously observe the subject during the fifteen to twenty minutes prior to the test. This waiting period is necessary to reduce interference from alcohol or other substance that may have been present in the mouth… The presence of such compounds in the mouth at the time of breath collection will produce an extremely high breath alcohol value that is far from indicative of alveolar breath alcohol concentration.”); 4 DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE, § 33-2.3.2(c) (2002) (”Some foreign objects in the mouth, such as chewing tobacco, may trap alcohol and affect the breath test . . . If the above are ruled out by observation, and the 15 minute waiting period is observed and documented, any interference with a valid test should not have occurred.”); HARVEY M. COHEN & JOSEPH B. GREEN, APPREHENDING AND PROSECUTING THE DRUNK DRIVER § 7.04(11)(e) (2002) (”The defendant should be observed for 15 to 20 minutes prior to blowing into the breath-alcohol analyzer to ensure that he or she ingests nothing and brings nothing up from the stomach (by burp, belch, regurgitation, etc.), since these can affect the accuracy of the test.”).” Id. at 129.

The reason that the Supreme Court’s decision in Vanderpool will have a major impact upon the reliability of breath testing in Missouri(and the rights of all motorists) is because the Supreme Court is being asked by the Director of Revenue to ignore The Missouri Department of Health regulations and to shift the burden to drivers to prove that something occurred during the 15 minute observation period that affected the reliability of the breath test.

Incredibly, the Director of Revenue is arguing that even though The Missouri Department of Health regulations require that a driver be “observed” for 15 minutes prior to the breath test, such observation is not necessary, even when the driver isn’t in the same room or the same vehicle with the officer during all or part of that time.

What that means is that any motorist who is stopped at a checkpoint 5 minutes after finishing a drink at a local bar or restaurant can be immediately marched over to the breath test machine, told to blow, and then be forced to convince a judge or jury that he or she finished drinking a beer 10 minutes before, and that the (contaminated) test result of .147 is unreliable.
In Vanderpool, Justice Smith, writing for the majority, warned that:

“Other than Carr, the history of the Section 302.505 suspension and revocation
cases reflects a slow erosion of requiring compliance with the fifteen-minute
observation period. This is unfortunate. The “requirement imposes a relatively
insignificant administrative burden on the police, and . . . its benefits in
instilling confidence in the testing results far outweigh any inconvenience.”
Carr, 95 S.W.3d at 129.

On balance, given the purpose of the observation period and the slight inconvenience to law enforcement to effectuate that purpose, we can see no reason for allowing the observation period to be treated as just another administrative hurdle that can be ignored, in whole or part, in order to achieve a desired result.” Id.

The writers submit that shifting the burden to the driver in these cases is not only wrong, but that it is completely in opposite to the American system of justice. A learned judge one said: “Carnage on the highways, and all other crimes, are subservient to the carnage at Valley Forge, Yorktown, and Gettysburg, where the civil liberties now hanging in the balance were carefully shaped and hammered into rights so clean and pure that they stand the test of time and resist encroachment.” McDonnell v. Com’r of Public Safety, 460 N.W.2d 363 (Minn. App. 1991). The rights of all Missourians are hanging in the balance!

Carl M. Ward, Bernard Edelman, Jeffrey Eastman, J. Matthew Guilfoil, Michael Selby, Travis Noble, Michael McIntosh, Robert S. Adler, Branson Wood, Robert Murray, Joseph Passanisse, Robert Childress, Daniel Moore, Lawrence Wines, John Newsham, Kimberly J. Benjamin, Timothy R. Cisar, Daniel Dodson, H. Marvin Gilmore, Kerry Rowden.