On Friday, Alaska’s Supreme Court upheld the right of defendants to present scientific evidence at trial in cases involving driving under the influence of alcohol (DUI). In 2004, the state legislature sought to muzzle defense attorneys who cited medical evidence on alcohol absorption rates in a way that would have undermined conviction rates. The case in question . . .
Douglas Valentine had challenged his own June 18, 2005 DUI arrest. Fairbanks Police Sergeant Dan Welborn initially pulled Valentine over that night for speeding but upon noticing his bloodshot eyes and a “moderate” odor of alcohol, Valentine was given a field sobriety test and brought in to the station for a breathalyzer reading. At 9:20pm, he blew a 0.099 on the machine. Twenty-five minutes later, the reading increased by 0.020 to 0.119.
Valentine argued that he had two beers before getting behind the wheel and that neither the field sobriety test nor his driving that night showed any evidence of impairment. Alaska Statute 28.35.030(s) prohibited Valentine from making the medical argument that at the time he was behind the wheel, the alcohol had not been absorbed into his bloodstream and his blood alcohol content (BAC) was under the legal limit of 0.08. The high court summarized the scientific evidence.
“Typically within an hour after a person has stopped drinking, the person’s body has absorbed much of the alcohol consumed and is eliminating alcohol from the bloodstream faster than it is absorbing it — that is, the point of ‘peak’ blood alcohol level has passed,” Chief Justice Dana Fabe wrote for the court. “But in some people this ‘peak’ point may not be reached for up to four hours after drinking because the rate at which the body absorbs alcohol depends on a variety of factors, including consumption of food, having an upset stomach, and the type of alcohol consumed. Therefore, it is possible that a person’s blood alcohol at the time of driving was lower than at the time the person took a post-arrest chemical test.”
The legislature specifically outlawed the delayed absorption defense in response to a 2002 court of appeals opinion, Conrad v. Alaska, where the argument had been successful. The high court on Friday found that this law undermined the constitutional right of a driver accused of DUI to defend himself.
“Under the United States and Alaska Constitutions, a defendant has the right to present relevant exculpatory evidence in a criminal trial,” Fabe wrote. “A defendant’s due process rights are denied when a legislative enactment substantially limits the right to present a defense.”
The Alaska Supreme Court, however, did approve another 2004 legislative change that has the effect of allowing automatic DUI convictions in nearly all cases. A separate provision of law allows anyone accused of having a blood alcohol level of 0.08 up to four hours after driving to be automatically convicted of DUI, regardless of whether he was sober while behind the wheel. This redefinition of the crime creates what California DUI Attorney Lawrence Taylor calls the “DUI exception to the Constitution.” In such cases, using science to prove sobriety can be excluded on grounds of irrelevance.
Because the lower court in Valentine’s case did not explicitly cite this exception, the supreme court overturned the conviction and ordered Valentine to stand for retrial.
A copy of the supreme court ruling is available in a 160k PDF file a the source link below.
Source: Valentine v. Alaska (Supreme Court of Alaska, 8/28/2009)
Maybe the solution is not to drink a handful of beers and drive home? I’ve attended parties where I had 3 or 4 mixed drinks. I quit drinking about 2 hours before I leave and switch to coca cola without the rum. 2 hours later I feel fine and clear headed enough to drive. So I really don’t buy this defense that the motorist was a hair under .08 and should be allowed to go home. If anything, the tests showed him getting drunker as he drove.
But by all means use science as much as possible. If a judge thinks it has merit you can walk. It is not fair to summarily dismiss scientific evidence for defense, but when you are attacking a major revenue stream for the government they tend to get a bit cranky.
The best way to keep money out of the courthouse is to not drink and drive in the first place.
You know what? He blew 0.09. The limit is 0.08. Most people are measurably impaired at 0.08. That he summarily blew 0.1+ is telling
Unlike speeding, for which you can argue a “social” speed limit for a road above the posted (and sometimes irrational) limit, DUI is easy to avoid: don’t drink. It kind of makes the following point moot:
Therefore, it is possible that a person’s blood alcohol at the time of driving was lower than at the time the person took a post-arrest chemical test.”
To which the reply is “So what”? If BAC can vary upwards over four hours, then don’t drive for four hours after you have two beers. If anything, this would compel legislators to rewrite the law to cover the maximum reasonable time, per medicine, that it would take a 0.08 BAC to be processed.
There’s really very few situations where you need to drive with a questionable BAC. If you have an emergency (rush to the hospital, which makes some sense in rural Alaska, etc) that requires you to drive with a questionable BAC, call the police and let them know you need an escort. Other than that, the only thing preventing you from not drinking and driving is laziness.
Maybe I’m just stupid, but last I checked, in the United States of America, when you’re accused of a crime, you have the right to a trial, and you have the right to present witnesses in your defense.
And what’s this “automatic conviction” crap?
Or does the Constitution not count in Palin-land?
First of all, I do not condone driving while imparied in any manner, be in alcohol, drugs or other distraction such as text messaging, etc. That said, organizations like MADD have gone from having a once lofty goal to plain unadulterated hatred of alcohol. Case in point their lobbying for the asinine 0.08 limit tied to Federal Highway Funding. Quite frankly I don’t think there should be any blood alcohol limit and impariment should be defined by field sobriety tests, that’s it. 0.08 for a heavy drinker is nothing, but for a non-drinker quite different. Like speeding I think DUI arrests have become money grabs, even admitted to me by some friends that wear a badge. Of course there are drunks that simply should not be on the road, but all too often these days the guy that had two beers on the way home from work is getting nailed. Meanwhile the 17 yr/old texting while driving is a much much much bigger threat on the road. Our priorities are way out of wack.
And what’s this “automatic conviction” crap?
Or does the Constitution not count in Palin-land?
The Constitution doesn’t count anywhere in DUI-land. Virtually every state’s DUI laws violate the Fourth and Fifth Amendments, yet have been given a pass by the legislatures and courts with weaselly kowtowing to MADD. “200k-min” is correct in that our priorities are WAY out of whack. SAFETY is not, and never has been a guaranteed right (except safety from the Government intruding on our lives.)
But we’ll happily trade our guaranteed rights for an illusion of safety.
–chuck
When I drink and drive, I’m considerate and safe.
I should not be subjected to the .08 limit.
0.08 for a heavy drinker is nothing, but for a non-drinker quite different
That’s what heavy drinkers always say, and it isn’t true. What is true is that they’re used to being drunk. They’re still drunk, and they’re still driving with impaired reflexes and judgment.
The 0.08 BAC was arrived at after actual science. Forgive me if I don’t trust the word of habitual drinkers and libertarians over actual biochemists.
Of course there are drunks that simply should not be on the road, but all too often these days the guy that had two beers on the way home from work is getting nailed.
Don’t have two beers on your way home from work. Actual studies have proven functional impairment at that level for most people. Yes, texting causes the same level of impairment. It’s also illegal to drive while distracted. Saying “Well, look at what they’re doing” is not a valid reason to keep doing the wrong thing yourself.
You cannot have a social contract that works on the “Person A can handle condition X, but Person Y cannot”. By and large, that kind of conditional enforcement never works because people cannot understand what the rules actually are and many will push the boundaries. Toddlers do this all the time. So do teenagers. So do many adults. It’s the reason why the “blitz” form of traffic enforcement is useless: people do not know what the rules actually are.
Yes, MADD occasionally goes overboard. They almost have to be because people, on average, aren’t good with this kind of thing unless you hit them over the head with consequences.
When I smoke pot, I concentrate better on the road.
My above comments are unfortunately things I’ve been told be numerous occaisions by several people. Each one said it with a straight face.
In Ontario we have spot checks everywhere,all the time. The spot in itself is a violation of my rights IMHO. The roadside cops have a hand held breathalizer. Over 08 your licence is gone for 3 months and your car is impounded effective instantly. Innocent till proven guilty? Not in this case. If your convicted,first offence,a $1000 fine,one year suspension,and if you want your licence back you have to get an ignition interlock for year #2. You pay for the installation,and the monitoring. You have to take a anti drunk driving course,and you pay for that. Kiss another couple of grand good bye. Hey were not done, try 125% jump for insurance.
Second offence. Double all of the above,and bring your toothbrush. You ain’t gonn’a sleep in your own bed for awhile.
So your a responsible guy and you quit drinking and switch to Diet coke for the last couple of hours. Right….now you blow 05, Well your walking for three days and your car gets impounded. A conviction gets registered,if you do it again it can get really ugly.
In our country we let child molesters serve thier time with house arrest. Kiddie porn dealers can use the “its art” defense. Violent crime will get you probation. Rape and murder? If your under 18,you might get 3 years in a country club. Bernie Madoff would have got off with a fine,and a stern “talking to”
But god forbid you should have a couple of beers and attempt to drive home.
A violation of the freedoms my father and grandfather went to war for. Dam right!
Do I drink and drive? Not a F—KEN chance
DUI laws are like all other BAD laws. They punish you for what you COULD do and not for what you DID do.
You COULD cause an accident and COULD hurt/kill someone. Not that you actually DID hurt or kill anyone.
So much for FREEDOM.
psarhjinian,
Yes, MADD occasionally goes overboard. They almost have to be because people, on average, aren’t good with this kind of thing unless you hit them over the head with consequences.
The nanny state mentality in a nutshell. I’m so glad you can’t vote here.
MADD has diverged so far from their original agenda, keeping teens from drinking and driving, and pursued such a prohibitionist agenda that even their own founder has renounced the organization.
MADD is a classic example of mission creep (just like those greyhound rescue groups who are animal rights nazis now “rescue” so-called “lurchers”, greyhound/coondog crosses used in underground racing, because the legal dog racing industry now adopts out the majority of retired race dogs). Nannies will never relinquish power voluntarily.
Driving tired is more dangerous than driving high on pot.
To all u folks resides in the south side of 49th parallel, coming North to Republic of Canuckstan is Zero Tolerance!
Atleast thats was 5-6 yrs ago, now may even be more stringent they may want your Blue tec ( Urea ) tested too.
So whenever u try coming Norte u get rid of all your Heaters, Guns, Long, short arms, .45 specials, Ammos, drugs even legals ones as well, get a hair cut if it looks too long. Kojak looks are Kosher/ Halal.
We were not an Appy country. Especially the Border guards, they are just about all comprised of Eunuchs. Talking about Penil* envy.
You COULD cause an accident and COULD hurt/kill someone. Not that you actually DID hurt or kill anyone.
I’d like to see your take on that topic the next time someone’s caught with a few hundred kilos of either cocaine or explosive.
Technically, they hadn’t done anything with it.
Do you really want to wait until a drunk driver kills someone to take their right to drive away? I’d also like to put you in a room with people who lost a loved one to a drunk driver and see you explain this line of logic. I’m sure it’ll go over just swell.
MADD has diverged so far from their original agenda, keeping teens from drinking and driving, and pursued such a prohibitionist agenda that even their own founder has renounced the organization.
MADD does not endorse prohibition, except behind the wheel. And yes, their scope has crept up, just as the NRA sees fit to wade into ACLU territory. It’s a matter of principle.
The nanny state mentality in a nutshell. I’m so glad you can’t vote here.
Hey, on some occasions the feeling is mutual.
It hurts libertarians to hear this just as much as it hurts communists, but it’s important: people are not perfect little Marxist or Randian ideals who behave the way we want them to behave. People, considered either individually or in groups, don’t behave in ways that suit people who like ideological purity. This is why we have laws about things like DUI, and also why we have a democratic process by which these laws can be continually refined. That’s reality, not “nanny-statism”.
Sometimes, you have to restrict freedoms and be consistent and proactive in your enforcement for the sake of the common good, nor can you plan for every possible outcome and assume people will react the way you want them to.
Saying that laws that restrict freedom are automatically bad because they restrict freedom is simplistic, just as much as saying that the existence of a law and the possibility of enforcement automatically ensures order
Let’s be clear – enforcing drunk driving laws is NOT restricting freedom. Driving drunk is irresponsible and dangerous, and you should NOT be free to do so.
Far as I’m concerned, I’d rather see cops pulling over suspected drunks than nailing people for five over the limit simply to raise money. It’s not nannyism – it’s saving lives.
Frankly, if you drive drunk, you are bringing hurt on yourself. No sympathy here.
But what concerns me about this article is the apparent disregard for rights in Alaska. What’s this “automatic conviction” crap? What’s this “you can’t present evidence at trial” crap?
Ronnie Schreiber :
September 1st, 2009 at 2:16 pm
Driving tired is more dangerous than driving high on pot.
And you can be cited for it.
200k-min :
September 1st, 2009 at 10:30 am
Quite frankly I don’t think there should be any blood alcohol limit and impariment should be defined by field sobriety tests, that’s it. 0.08 for a heavy drinker is nothing, but for a non-drinker quite different.
Heavy drinkers are just as impaired as occasional drinkers. They’ve just learned to integrate it into their lives better.
@psarhjinian,
Personally, I have no problem with someone have a “few hundred kilos of either cocaine or explosive”. It’s what they do with it that worries me. However, I hold to my ideals of freedom, even at personal risk.
You can own a gun where you are, right? It is against the law to kill someone where you are right? Should you be imprisioned or fined because you can kill someone with it?
@FreedMike:
I disagree with 2 of your last 3 posts. First, its the very definition of nannyism (if there is such a word). The police are not there to make sure I do right or wrong. they are there to document my wrong doings for the courts who are to decide if I am at fault and what my debt to society is.
And second, you said “Heavy drinkers are just as impaired as occasional drinkers. They’ve just learned to integrate it into their lives better”. That’s the POINT. Some people have LEARNED to be safe WITHIN their impairment. Flight crews often have to perform on limited rest. They are trained to recongnise the symptoms and learn ways to overcome the impairment. Regular drinkers do the same. Are they impaired? Yes. The question is are they more of a danger than anyone else. You can’t prove that for the individual.
I agree that field sobriety tests should be the determining factor in impaired cases. Whether drunk, stoned, tired or stupid.
@Kurt:
If you REALLY believe that cops pulling over drunks is nannyism, then you live in some kind of utopian fantasyland.
Second, someone with .8 blood alcohol is DRUNK, whether he’s a heavy drinker or a light drinker.