The Austin, Texas police chief, echoing the desires of Mothers Against Drunk Driving and other advocacy groups, has endorsed a brand new category of drunk driving offense based on an even lower level of blood alcohol content (BAC).  This new category of proposed offense in Texas would be called “Operating While Ability Impaired,” and would be intended to address cases in which a driver has a BAC between .05 and .07.  The Austin chief argues that “the new offense would give prosecutors and judges and juries another tool to use” against drivers who drink.  Their argument claims that sometimes it can be hard to get convictions for DWI, so prosecutors may be forced to plea bargain cases in order to get convictions.

Of course, nobody who drives wants to share the road with drunk drivers but local politicians should not be tempted to bring the new law under consideration in Texas to New Hampshire.  Under New Hampshire law, a driver can already be convicted if his ability to drive is impaired to any degree. We all have different internal chemical make ups.  Some of us are not impaired at .05 or even at .08.  Others of us should not be driving after having anything to drink, even if out BAC is .03.  The DWI-law-enforcement-industrial-complex makes no effort whatsoever to distinguish between these different kinds of people.  Under our law, when it comes to breath testing, at .08, everyone is guilty by definition.  For New Hampshire to adopt a law such as the one proposed in Texas would only make this situation worse.

A person does not have to be actually driving a car to be convicted of driving while intoxicated in New Hampshire.  There have been numerous cases in which the police have prosecuted drivers who have either pulled over and fallen asleep and not even left the parking lot.

Under New Hampshire law, a person can be charged with DWI if he or she is in “actual physical control” of a vehicle.  “Actual physical control” does not require the driver to be in motion.  People are routinely arrested for being in a car and in possession of the keys while intoxicated.

It sometimes happens that a person does not realize that he or she has had too much to drink until they have begun driving.  From a public safety perspective, the rational thing for the government to encourage a person to do is to pull over and call for help or to sleep it off.  Unfortunately, a car pulled over to the side of the road is likely to attract the attention of the authorities.  If a person is found in a car, in a public place, in possession of the keys, then a DWI arrest and prosecution is likely to follow.

The most highly publicized of these not-driving-while-intoxicated cases involved the former police chief on the Town of Stratham, New Hampshire. According to newspaper reports, the police chief was arrested while sitting in a car parked at the beach.  He allegedly later explained that his wife had recently passed away, and while grieving he drove to one of her favorite places and had a few drinks.  He said he had no intention to drive in his condition.  The prosecution accepted this explanation and ended up dropping the charges.  This was a good decision by the prosecution, but we are left to wonder whether the same degree of understanding would have been given to an ordinary person who was not in the law enforcement field.

The law that allows the police to charge a person for being in “actual physical control” of a vehicle creates a very real problem for the driver who does not realize that he or she is impaired after driving part way to their destination.  The best advice is to call a friend or a cab before getting in the car in the first place.

Recent revelations in Washington D.C. show just how fallible the breath test machines used by police to prosecute DWI cases can be. A consultant hired by the District found that every single one of the 10 breath machines used by the District were incorrectly calibrated. These inaccuracies caused the machines to show blood-alcohol content to be 20% higher than it actually was. “Nearly 400 people were convicted of driving while intoxicated in Washington D.C. since the fall of 2008 based on inaccurate results from breath test machines, and half of them went to jail….”

The Washington Post, June 10, 2010 http://www.washingtonpost.com/wp-dyn/content/article/2010/06/09/AR2010060906257_pf.html

The errors arose out of an error made by a single police department employee, who made a mistake when replacing one of the motor pumps inside the notoriously complicated machines. A District probe has found no malicious intent on the part of the employee. The lack of malicious intent affords scant solace to those wrongfully convicted by the mis-calibrated machines, however. Those people lost their licenses, their jobs, and sometimes their freedom, based on incorrect breath machine readings.

Fortunately, the New Hampshire Supreme Court recently rejected an attempt by state authorities to eliminate one of the few protections available to New Hampshire drivers against this kind of error. In the most recent legislative session, state officials tried to remove the requirement that New Hampshire drivers be given a sample tube of their own breath that they can have tested at an independent lab. The Supreme Court found that the second sample tube provided to drivers was required in order to ensure fairness. That decision can be found here:

http://www.courts.state.nh.us/supreme/opinions/2010/2010037opini.pdf

These developments in Washington, D.C. show how important it is for drivers who believe that their breath results are too high to contact an experienced lawyer to examine all possible defenses.

Government officials have adopted a “zero-tolerance” approach to DWI enforcement in New Hampshire. However, recent studies suggest that, as dangerous as driving while intoxicated is, texting-while-driving may be far worse.

Car and Driver magazine conducted an experiment in which drivers tested their reaction times while texting, while reading, and while impaired by alcohol. The drivers were told to hit the brakes and come to a controlled stop when they saw a windshield-mounted LED light up. First, a baseline reaction time was established. Then each driver made several stops while reading and while texting. After completing that, each driver drank enough alcohol to get their BAC up to the legal limit of .08, and then took the test again. In case you are wondering, Car and Driver rented an airport runway to conduct these tests, they did not use an open road!

The experiment found that the all three distracted driving scenarios increased the driver’s reaction time and thus reduced safety. Surprisingly, of the three distractions, reading and texting-while-driving tended to increase the reaction time more than impaired driving did. Make no mistake about it: alcohol definitely increases reaction time, creates a risk of injury or death, and carries significant legal penalties. Texting-while-driving and reading, however, can create far greater distractions that increase reaction time – and decrease driving safety – even more than DWI.

On January 1, 2010, a new law banning texting-while-driving went into effect. Despite the fact that the risks involved in texting-while-driving may be far greater than those involved with DWI, the penalties imposed are far lower. A driver convicted of first offense DWI can expect a minimum of $600 in fines and penalties and a minimum three month loss of license. The fine for under the new law for texting-while-driving is only $100.

The Car and Driver article can be viewed here:

http://www.caranddriver.com/features/09q2/texting_while_driving_how_dangerous_is_it_-feature

It looks like the New Hampshire Department of Safety is once again going to try to prevent DWI suspects from double-checking its work.  This morning the Concord Monitor reported that the Department will, once again, try to convince legislators to remove one more protection against false evidence.  If they succeed, people charged with DWI will lose an opportunity not only to cast doubt on the evidence against them, but also to establish their innocence.

New Hampshire uses a machine called the Intoxilyzer 5000 to test breath samples of people arrested for DWI.  The machine is far from perfect, but one of its better features is that it provides a suspect with a tube containing a sample of his or her breath.  This sample can then be taken to an independent laboratory for testing by an independent device, one not controlled and operated by the same government that will be responsible for any criminal prosecution that follows.  In other words, the Intoxilyzer 5000 permits a DWI suspect to double-check the state’s work.  Unfortunately, the Intoxilyzer 5000 is the only breath testing machine on the market that provides a suspect with a sample.

In what I consider to be a jaw-dropping statement, the director of the State Police lab that maintains all of the Intoxilyzer 5000 machines in New Hampshire, is reported to have said that the motive for changing the law is “bad science.”  Bad science?  Bad science!  For twenty years the State Police have been telling suspects, lawyers, judges and the public that the Intoxilyzer 5000 was accurate and that its results were practically beyond reproach.  I have long argued that this was not the case.  Now the government agrees.  We have long known that approximately 15% of people have their breath tested independently, and approximately 5% show an inconsistency that casts doubt on the government’s result.  A 5% error rate is simply too high.  If Tiger Woods missed 5% of his shots, he would be picking up stray golf balls at some driving range in Omaha.

The government’s position seems to be this:  Trust us, and this time we will try really, really hard to get it right.  Sorry, but no thank you.  The government has been telling us for years that it is already getting it right.  Now they tell us that the old way is no longer good enough.  Which is it? And what about all those cases in which you testified that the Intoxilyzer 5000 results were beyond reproach?

Drunk driving is a serious problem and a very real danger.  But so is the risk of wrongful prosecution and conviction.  Our streets will not be made the slightest bit safer by removing one of the few opportunities a DWI suspect has to challenge the questionable science behind breath testing.  The New Hampshire legislature should not short-change its citizens by removing this protection against wrongful DWI prosecution.

The Intoxylizer 5000 breath machine that the police use may be prone to user error.  For a variety of complicated medical reasons, the machine assumes that you have the “average” physiology.  You don’t.  We are all different and we all digest and burn off alcohol differently.  By the time the police ask you to take a breath test, you are no longer in the same condition that you were while driving.  Depending on when and how much you had to drink, your BAC may be higher or lower than it was when you were actually driving.  At best, the Intoxilyzer 5000 provides a rough estimate of your BAC.

It is important to know what equipment was used during a breath test.  Your DUI/DWI lawyer will obtain this information during the course of the case.