How Dangerous is Drunk Driving?

Public perception is that drunk drivers cause carnage on the highways. Former US Supreme Court Chief Justice William Rehnquist approved sobriety checkpoints, allowing police to stop motorists without any reason whatsoever writing:

No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion. The anecdotal is confirmed by the statistical. ‘Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage.'”

Justice Harry Blackmun agreed, writing:

“I fully agree with the Court’s lamentations about the slaughter on our highways, and about the dangers posed to almost everyone by the driver who is under the influence of alcohol or other drug. I add this comment only to remind the Court that it has been almost 20 years since, in Perez v. Campbell, 402 U.S. 637, 657 (1971), in writing for three others (no longer on the Court) and myself, I noted that the ‘slaughter on the highways of this Nation exceeds the death toll of all our wars,’ and that I detected “little genuine public concern about what takes place in our very midst and on our daily travel routes.” See, also, Tate v. Short, 401 U.S. 395, 401 (1971)(concurring statement). And in the Appendix to my writing in Perez, 402 U.S., at 672, I set forth official figures to the effect that for the period from 1900 through 1969 motor-vehicle deaths in the United States exceeded the death toll of all our wars. I have little doubt that those figures, when supplemented for the two decades since 1969, would disclose an even more discouraging comparison.”

Geez… the “slaughter on the highways of this Nation exceeds the death toll of all our wars.”  That’s pretty scary.  Importantly, those statements, and those numbers, have been used to erode our Constitutional protections against police interference.  “Can I see your papers please, Komrad,” comes straight out of an old spy thriller in East Berlin.

And it’s a complete crock.  The numbers were lies.  All lies.  We gave up some of our liberties because the government lied to us.

Here are some of the leading causes of death.  You can judge for yourself:

ANNUAL CAUSES OF DEATH INCLUDING DRUNK DRIVING

Cause of Death # of Deaths
Heart disease: 616,067
Cancer: 562,875
Stroke: 135,952
Respiratory diseases: 127,924
Alzheimer’s disease: 74,632
Diabetes: 71,382
Influenza and Pneumonia: 52,717
Hospital Mistakes: 44,000 to 98,000
Nephritis: 46,448
Motor Vehicle Accidents: 43,354
Septicemia: 34,828
Firearms: 29,569
Liver Disease: 25,192
Falls: 13,322
Poisoning: 12,757*
Drunk driver and/or passenger: 10,792**
Workplace Accidents: 4,340
Drowning: 3,842
Smoke/Fire: 3,377
Pedestrian/Occupant of other vehicle killed by a drunk driver: 2,206**

 

*Reported elsewhere as 29,846 by CDC.

**”10,792 deaths were the drunk driver or his passenger.  2,206 were in other vehicles or pedestrians, implying that they were all blameless victims. 2,206 is 5% of all traffic fatalities. If any of the 2,206 were impaired is not recorded and who was at-fault is never discussed.” from www.getmadd.com, retrieved on March 23, 2011.

 

Busting the Mythbusters Myth

During the 2003 season of Mythbusters, hosts Adam Savage and Jamie Hyneman attempt to beat a breath test.  From a DUI lawyer’s perspective, this episode is funny because it reveals a number of flaws that an unsuspecting person might not detect.

Initially, it is important to understand that the Mythbusters were attempting to use various substances and objects to create a lower breath score.  The best example of this myth is placing a penny in the mouth before blowing.  Supposedly, the cooper in a penny will create a chemical reaction that will reduce the alcohol reading or create an unstable result due to a small electrical current generated by the cooper.  The trick doesn’t work at all, and Mythbusters explored this on the show.

Myth busted, right?  Right.

But there are several problems revealed during the course of the Mythbuster’s show.  First, Adam slams down 5 scotches and clearly admits that he feels intoxicated.  He proceeds to blow a .03, describing himself as a cheap date.  Later during the show, the announcer indicates that “breath tests work because alcohol is carried by the blood into the lungs and exhaled.  The amount of alcohol on the person’s breath is proportional to the amount in their bloodstream.” Unfortunately, Adam’s BAC (blood alcohol concentration) was likely not a .03.  Because Adam drank a number of drinks in rapid succession, he was feeling the alcohol, but it had not become fully metabolized.  Alcohol is absorbed through the stomach and small intestine, where it is then distributed to other areas of the body through the bloodstream.  Adam was feeling the alcohol in his brain, but only a small amount of alcohol had reached the stage where it is eliminated from the body.  His breath score was lower than his blood might have revealed.  If Adam had stopped drinking and tested again later after he was fully post-absorbive, he might have scored much higher.

The announcer’s declaration that “the amount of alcohol on the person’s breath is proportional to the amount in their bloodstream” is obviously misleading in Adam’s .03 score, but the misleading nature of this statement is problematic.  The proportional nature of breath-to-blood requires a conversion factor.  The conversion factor is set arbitrarily by law even though everyone has a different breath-to-blood proportion.  Approximately 20% of people blow higher than the amount in their blood.  In extreme cases, this conversion factor can make a .02 appear to be a .08, and .06 translates into a whopping .25.

During Adam’s next breath test, he scores .11, but this test is hardly a reliable result.  Viewers watch Adam place his scotch on top of the breath machine.  If Adam had a sip of that beverage within 15 or 20 minutes of blowing, the machine should have detected mouth alcohol or produced an extremely high score.  A single sip of regular beer will drive the numbers up into the .20 range.  The machine is supposed to detect this, however, and prosecutor frequently tell jurors to believe that the machine’s reading is reliable because of this programming.  It is known as the “slop detector” system.  The name is a little misleading because there is no physical device inside the machine.  The machine calculates the alcohol in rapid succession, approximately four times per second.  As it makes these calculations, an “alcohol curve” should appear that rapidly rises and plateaus.  The plateau is assumed to be the person’s BrAC (breath alcohol concentration).  If a negative value is detected during the assumed plateau, this indicates an unstable result or a spike in the alcohol reading.  A negative value should be rejected by the slope detector because it may indicate the presence of mouth alcohol.

The announcer then moves on to show how Adam and Jamie cannot pass field sobriety tests.  On the first test, the Walk and Turn (WAT) Test, the officer interrupts Adam during the test saying, “Ok now stop! I want you turn around just on the balls of your feet.”  If you’re stone cold sober, try this at home alone.  You will look like an idiot trying to perform this silly version of the test.  The oral instructions for the WAT are very detailed, and regarding the turn, an officer is trained to state, “When you turn, keep your front foot on the line, and turn by taking a series of small steps with the other foot, like this. (Demonstrate.) ”

The next two tests that the officer has Adam and Jamie perform are the finger to nose test and the Romberg evaluation (standing with eyes closed and head tilted).  Both of these tests were rejected by the National Highway Traffic Safety Administration because they were unreliable.  If either Adam or Jamie were drunk while performing these two tests, they didn’t appear to have problems passing those tests.

Mythbusters proceed back to the police station to perform more breath tests at this point.  The pair experiment with breath mints and an onion.  While these might mask the odor of an alcoholic beverage from the human sense of smell, these substances cannot reduce the amount of alcohol in a person’s breath from a breath machine.  Certain cough drops, however, can add menthol to a person’s breath, which might increase the apparent alcohol reading.  Menthol is part of the alcohol family.  In September 2005, German police warned motorists that “sucking a fisherman’s friend could get you into trouble.”  A German motorist was arrested but blood testing later revealed he was actually 0.00 BAC.  They found that eating just three of these cough drops could produce a BrAC of .24.

Another substance that Mythbusters experiment with are dentures with a denture adhesive.  Now, no one has ever argued that dentures reduce the BrAC, but they include this in the experiment because several people have indicated that it may increase the apparent BrAC.  Lo and behold, Adam produces a higher result than he did mere minutes prior!  This seems particularly troublesome, since these little deviations could be the difference between guilt and innocence.

Finally, Adam tries a mouth wash experiment.  Since mouth wash is mainly alcohol, it is another substance that does not appear to fit the parameters of their experiment.  If it is their desire to reduce the BrAC, why are they using mouthwash?  Nonetheless, Adam swigs a little mouthwash and blows into the machine, which produces a .43 alcohol reading.  If poor Adam were under arrest, the jury would be appalled to hear he was so drunk.  But again, the slope detector system ensured that it wasn’t mouth alcohol, right?  Not to worry, they explain, “to iron out glitches” the police “always test you twice.”  This is frankly not true.  A single test is enough for a prosecutor to get a conviction, and the accused is left to argue about the “glitches.”

Judge Mark Somers and the Michigan Medical Marihuana Act: Federal Preemption Analysis

Michigan Medical Marijuana ActChief Judge Mark Somers of the 19th District Court in Dearborn, Michigan, ruled on March 7, 2011, that the Michigan Medical Marihuana Act (MMMA) is unconstitutional because federal laws trump Michigan’s attempted decriminalization of marijuana for seriously ill patients. Federal preemption analysis of Michigan’s medical marijuana law raises interesting and complex issues, but the threat of “despotism of an oligarchy” becomes alarmingly clear when the case of People of the City of Dearborn vs. Robert Michael Brandon [click for a copy of the opinion] is examined. The judge’s analysis of the federal preemption doctrine is cursory and fatally flawed. Furthermore, the decision does not take into account the prevailing analysis of other courts from across the nation.

The Supremacy Clause of the United States Constitution contained in article VI, paragraph 2, establishes that the U.S. Constitution, Federal Statutes, and U.S. treaties are “the supreme law of the land.” It states that:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

This “assures that the Constitution and federal laws and treaties take precedence over state law and binds all judges to adhere to that principle in their courts.”

Marijuana is illegal under the federal Controlled Substances Act (CSA). However, 15 states currently have legalized some form of medical marijuana: Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and the District of Columbia.

Jumping into the preemption doctrine is an unwise and potentially treacherous journey down the rabbit hole. Professor Richard Epstein, one of the most influential legal thinkers of modern times, has referred to the preemption doctrine as an “arcane topic” that has recently “generated much public debate.” The “[o]nce-esoteric questions over the federal preemption of state law are now the subject of a prominent, politically charged debate.” These debates cover the historic police powers traditionally exercised by state governments to advanced regulatory schemes that include environmental protection, where “billions of dollars hang on regulatory nuances and complex points of law.” As Epstein explains, “preemption law often tests the patience of even the wonkiest lawyer.”

The Federal Controlled Substances Act, 21 USC § 801 et seq.,  sets forth a detailed schedule of various drugs and regulates these substances, enacting criminal provisions and penalties not unlike Michigan’s Public Health Code, particularly MCL § 333.7101 et seq. If these two laws disagree, does the Supremacy Clause overrule Michigan’s law?  And if it does, how far does preemption reach into striking Michigan’s laws?

In a case heavily relied upon by the Dearborn judge, a divided US Supreme Court addressed California’s medical marijuana laws. In Gonzales v Raich, 545 U.S. 1, 9 (U.S. 2005), the majority exercised judicial restraint, holding that the CSA was a valid exercise of Congressional power. The Court held:

The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. Under the Raich decision, there is little doubt that Congress could explicitly preempt state laws that permit the use and cultivation of medical marijuana. Importantly, however, the Court restricted its holding, ruling that the federal authorities could enforce federal laws if they chose to exercise those powers. As a result, California’s medical marijuana law was left largely untouched, but federal authorities were allowed to enforce federal prohibitions.

In an employment law case, a private employer took adverse action against an employee for off-work medical marijuana use. The employee brought suit, and the Supreme Court of Oregon held that the CSA preempted the state law. In accord with the doctrine of judicial restraint, the Court limited its ruling, holding that:

The only issue that employer’s preemption argument raises is whether federal law preempts [Oregon’s medical marijuana law] to the extent that it authorizes the use of medical marijuana. In holding that federal law does preempt that subsection, we do not hold that federal law preempts the other sections of the Oregon Medical Marijuana Act that exempt medical marijuana use from criminal liability. [Emphasis added.]

Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Ore. 159, 172 n 12 (Or. 2010).

In yet another recent employment law case, a Michigan federal district court refused to rule whether Michigan’s medical marijuana law violated the preemption doctrine, holding instead that the MMMA did not create a private cause of action against an employer. As the Court held, “the Court does not reach the issue of the MMMA’s preemption by federal statutes. See Qwest Corp. v City of Santa Fe, 380 F.3d 1258, 1267 n. 7 (10th Cir. 2004) (‘Because federal preemption of a state or local law is premised on the Supremacy Clause of the United States Constitution and because of the longstanding principle that federal courts should avoid reaching constitutional questions if there are other grounds upon which a case can be decided,’ the Court must determine whether the matter can be decided without turning to federal preemption.)” Casias v Wal-Mart Stores, Inc., 2011 U.S. Dist. LEXIS 15244, 16-17 (W.D. Mich. Feb. 11, 2011)

Several California cases have dealt with the preemption issue before the 19th District Court in Dearborn decided Brandon. These opinions go completely unaddressed by the Brandon Court, even though these decision provide persuasive guidance on the issue.

First, in City of Garden Grove v Superior Court, 157 Cal. App. 4th 355, 383 (Cal. App. 4th Dist. 2007), the Court addressed whether a municipal government must return marijuana to a patient after it was seized in contradiction of the state medical marijuana law. The city argued that the marijuana should not be returned because it constituted contraband under federal laws, and the CSA preempted the state law. The Court rejected the preemption argument, holding:

[The] assumption against preemption has particular force in this case. Preemption, it must be remembered, is fundamentally a question of congressional intent. And we are adjured to presume against preemption unless we find it to be the “ ‘ “clear and manifest purpose of Congress.” ’ ” But in enacting the CSA, Congress made it clear it did not intend to preempt the states on the issue of drug regulation. Indeed, “[t]he CSA explicitly contemplates a role for the States in regulating controlled substances … .” It provides:“No provision of [the CSA] shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision … and that State law so that the two cannot consistently stand together.” (21 U.S.C. § 903.) “This express statement by Congress that the federal drug law does not generally preempt state law gives the usual assumption against preemption additional force.” [Internal citations omitted.]

Garden Grove was appealed to the US Supreme Court, which declined to review the issue on December 1, 2008. This establishes tacit approval short of an endorsement by the high court.

In County of San Diego v San Diego NORML, 165 Cal. App. 4th 798 (Cal. App. 4th Dist. 2008), the California courts addressed whether “conflict preemption” or, alternatively, “obstacle preemption” barred state medical marijuana laws. Finding no positive conflict between the medical marijuana law and federal laws consistent with the CSA, the court rejected conflicted preemption. Furthermore, the court held that obstacle preemption was inapplicable because “not every state law posing some de minimus impediment will be preempted. To the contrary, ‘[d]isplacement will occur only where, as we have variously described, a ‘significant conflict’ exists between an identifiable ‘federal policy or interest and the [operation] of state law.’”

The United State Supreme Court refused to review San Diego on May 18, 2009. Thus, the California medical marijuana survived a second attack on preemption grounds before the high court.

Finally, in Qualified Patients Assn. v. City of Anaheim, 187 Cal. App. 4th 734, 758 (Cal. App. 4th Dist. 2010), a California court addressed the preemption doctrine once again. As the California court described:

[The California] Supreme Court has identified “four species of federal preemption: express, conflict, obstacle, and field. First, express preemption arises when Congress ‘define[s] explicitly the extent to which its enactments pre-empt state law. Pre-emption fundamentally is a question of congressional intent . . . and when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one.’ Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. Third, obstacle preemption arises when ‘ “under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” ’ Finally, field preemption, i.e., ‘Congress’ intent to pre-empt all state law in a particular area,’ applies ‘where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress “left no room” for supplementary state regulation.’”

The first and the last of the foregoing categories do not apply here, given language in the CSA “demonstrat[ing] Congress intended to reject express and field preemption of state laws concerning controlled substances.

[Internal citations omitted; emphasis added.]

In the Brandon decision, Judge Somers held, in cursory fashion, that the MMMA is preempted under all four doctrines, without further analysis. In less than 3 pages, the Dearborn decision presumes to render the MMMA unconstitutional without addressing the nuances presented by the California cases that have been repeatedly survived appeals to the US Supreme Court. In fact, the Dearborn decision nearly abandons any analysis of the CSA, while making sweeping declarations striking Michigan’s law.

The ramification of this reckless decision may be startling. While Judge Somers clearly holds that the MMMA is unconstitutional, he has also inadvertently ruled that Michigan’s Public Health Code is unconstitutional. By holding that “field preemption” bars the Michigan medical marijuana law, Michigan cannot decriminalize medical marijuana any more than it can promulate rules regarding various scheduled controlled substances. Michigan cannot enforce its laws against possession, delivery or manufacturing of cocaine, heroin or LSD because the federal government’s CSA is “sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.” All state drug laws, according to Somers’ legal reasoning, are preempted through field preemption.

While this ruling is clearly unsupported by prevailing authorities, Judge Somers has ruled that the 19th District Court is unable to enforce virtually any drug crime.  This is clearly an absurd result stemming from the judge’s eagerness to attack the MMMA.

For more on this subject, please review, “Judge Mark W. Somers and the Michigan Medical Marijuana Act: Reckless Judicial Activism.”