If they were charged, they must have done something wrong, right?

Recently, it came out that a police department in Florida was looking for random black people to pin unsolved crimes on. Whistleblowers have outed the practice, but how much harm has already been done?

In another case, an officer from California was found to be taking bribes and obstructing justice.

Often, when examining potential jurors who may be selected to serve over a criminal case, several will answer that the defendant in the case must have done something wrong or he would not be there and be charged with a crime. They expect that there must be evidence against him, and even if it is not presented to them during the trial, some will believe that it was withheld due to lawyers (usually the defense) outside of their presence.

The examples from Florida and California here show that sometimes this is not the case. The sole reason for pinning these crimes on innocent people was to boost the department's stats. This was the justification for blaming people for crimes that they did not commit. These innocent people were being charged with serious offenses, which could have lasting impacts on their freedom, financial obligations, could require probation, could cost them certain rights (voting, firearms), and cause many other very harsh and very serious consequences.

In order for the justice system to work properly, not only must police and police investigations be held to some higher accountability and jurors must be more open-minded to the very real problems with the criminal justice system.

What are the field sobriety tests? Do I have to do them?

The field sobriety test is generally made up of 3 parts, the horizontal gaze nystagmus, the walk and turn, and the one leg stand. There is also a forth part of the field sobriety testing called the portable/preliminary breathalyzer test.

The tests are voluntary meaning that you do not have to do them. If you elect to do them, there is a good chance you will fail. However, your refusal to do them will be considered evidence that you refused them because you were guilty. You are damned if you do, damned if you don't. Often, the police have already decided to arrest you before even before asking you to take the test and they are just wanting to gather more evidence that will later be used to try and convict you.

The tests are somewhat controversial in that the National Highway Traffic Safety Administration (NHTSA) has touted these tests as being scientific and highly accurate in predicting levels of intoxication. This understanding has trickled down to law enforcement agencies and to the courts. The tests are now generally accepted by these groups as being generally accurate, reliable, and admissible. The basis for the scientific accuracy of these tests is mainly due to three validation studies contracted by NHTSA. The studies are well worth looking at, but are not the topic of this blog post.

The first test is the horizontal gaze nystagmus, or HGN. Nystagmus is can be described as a twitching or bouncing of the eye as is moves back and forth. The description often given by law enforcement is a windshield wiper on a dry windshield.

There are three portions of the tests, checking for smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to 45 degrees. The maximum score one can reach is a 6/6, meaning that all of these clues would be present in each eye. Even a 4/6 is a "failing" score. 

This is the one that is most heavily relied on. However, there are many causes of nystagmus and many have nothing to do with intoxication. In fact, everyone has naturally occurring nystagmus to some degree.

The next test is the walk and turn. You are asked to take nine heel-to-toe steps down an invisible line, shuffle around to face back down the line, and take nine heel-to-toe steps back to the starting point. There are eight "clues" that can be observed. A score of two is a failing score. The clues are stepping off of the invisible line, not stepping heel-to-toe, doing an incorrect number of steps, doing an improper turn, raising your arms more than six inches, being unable to maintain balance, and starting the test too soon.

The final test in the battery of tests is the one leg stand. You are to count out loud for thirty seconds while raising one leg about 6 inches off of the ground. There are four "clues" for this test. A score of 2 is a failing score. The clues are swaying, hopping, putting your foot down, and using your arms to balance.

The field sobriety test manuals used to say that the tests had to be done in a standardized manner, i.e., the same way every time. The language stating this has been watered down or altogether removed over time. 

Again, the tests are not solely tests of agility. If you get bored while the officer is giving you the instructions for the walk and turn test and move your feet out of the starting position, you already have one point. One more, and you have failed the test.

After the field sobriety tests are done, you will usually be asked to take a roadside breathalyzer. The results of the roadside breathalyzer are not admissible in court. The officer is supposed to tell you that. If you blow over the limit, you are almost guaranteed to be arrested. If you blow under, you may still be arrested. If you refuse the portable breath test, your refusal may be used against you later and you will probably still be arrested.

Since this roadside breath test is not admissible and will give you a general idea of what your BAC will be at the police station, you may want to do it and find out so that when you are provided the opportunity to call an attorney at the station, you can let them know what your BAC was and when your last drinks occurred. This can help the attorney to advise you as to whether or not to take the actual BAC test that can be used against you in court.

What is retrograde extrapolation and why should I be worried about it?

Imagine you are leaving the local Applebee's after having a cocktail or two. You wait a half hour and drink a water. You feel fine, so you start driving home. As you exit the parking lot and begin making a right turn on the street, the red and blue lights light up in your rear-view mirror.

The cop asks you to exit the vehicle because he can smell alcohol on you. Because you feel fine, you exit the vehicle and comply with his requests to do a number of test right there on the side of the road. Right after you finish, he tells you to turn around and put your hands behind your back.

He takes you down to the station, some more procedural things are done. An hour or so passes. Then he has you blow into the breath machine. The results come out .06. You think, "Great, I am well under the legal limit of .08." You are then placed into a jail cell where you get to spend the night. You do not make it into work the next morning, instead seeing the local magistrate to ask to be released from jail pending trial. You spend the next 3-5 months going taking days off of work to attend various court dates.

You get to trial and your defense is that you were under the legal limit of .08. The government then puts on a toxicologist who says, well the result at the time of the test was .06, but if we use retrograde extrapolation, your BAC level was higher an hour and a half ago before you were pulled over! In fact, you were over the legal limit, so you are guilty. A jury, trusting the government science and scientist, convicts you of DUI.

So, what is a retrograde extrapolation? Generally, in Washington the testimony will involve the application of Widmark's formula to a particular situation.

Widmark's formula has some variations, so the formula is not truly a set formula (which is a pretty big problem). One formulation of Widmark's is BAC = (o x 5.14 / w x r) - .015 x h. The variables would work out to "o" being ounces of alcohol consumed; "w" being weight of the person in pounds; "r" being a so-called gender constant (.73 for males and .66 for females), h would be hours since the drinking started. The .015 is the supposed average elimination rate for alcohol or the amount a perhaps BAC supposedly metabolizes per hour. To oversimplify Widmark's, they are basically adding .015 to your BAC per hour.

The first problem is that alcohol is absorbed in the body and then eliminated. For instance, if you took three shots of alcohol back to back. You would not feel the effects intoxication until the alcohol actually entered your blood stream, which would take a half hour or longer. This is the "absorption phase." After the alcohol enters the bloodstream, the body then begins to filter it out. This is the "elimination phase."

 
In order to even conceptually do a retrograde analysis, the person must be in the elimination phase. Otherwise, as you can see in the above graph, if a person was at hour 3, their BAC was actually lower in hour 1. However, the retrograde would instead make it higher. This is true anywhere in the absorption phase.

The second issue is Widmark's is based on averages. While averages work in some settings, when determining someone about an individual, averages are generally not a good metric. People process alcohol differently and eliminate it at different rates. The equation knows nothing about you.

The use of Widmark's formula and retrograde analysis has drawn criticism from scholars in the area of breath and blood alcohol analysis, yet it still used in courtrooms across the nation to attempt to convict people who are under the legal limit.

Is the Draeger Alcotest 9510 reliable?

In recent years, the Washington State Patrol has rolled out the Draeger Alcotest 9510 as its breath testing machine to replace the Datamaster, which it has used for decades.

The Draeger has been used in other states, like Massachusetts, where problems have arisen. Recently, attorneys in Washington have started to mount legal challenges to the Draeger. An article in ZDNet has a decent summary of the current state of things in Washington.

One of the key issues is that the Draeger company will not release the source code that runs the machine. Without having access to the code, it can only be tested from the outside. If the machine has any incorrect calculations or corrections that it makes while processing a breath test result, that would obviously affect the breath test.  The problem was that no one could review the code because Draeger had kept it proprietary.

Litigation in Snohomish County allowed the code to be reviewed by a select handful of individuals for errors. Protective orders were issued which prevented those experts from using their analysis of the code for other purposes. So, only a handful of people know what the issues with the source code are.

The article outlines some of the potential errors in the code.

The bidding process that was gone through was also somewhat suspect. In order for a private company, such as Draeger, to receive the government contract for breath machines, the State had to put it to a bid. Draeger was the sole bidder.

Draeger is also being sued by Rush UMC over allegations of faulty monitoring systems.

Legal Financial Obligation Relief Coming Down the Pipeline

Legal financial obligations (LFOs) come in many forms. After a conviction or sometimes a non-conviction resolution of a criminal case, fines, fees, costs, assessments, and restitution are imposed. The defendant is expected to pay all these LFOs off in a timely manner. Willful non-payment of these LFOs can result in incarceration or other problems with the courts. Many people would get caught in a cycle of being unable to pay and getting punished for it. Those debts made it hard to get and keep jobs, housing, and other basic necessities.

House Bill 1783 was recently signed into law. HB 1783 eliminated interest on non-restitution LFOs. It eliminated the imposition of "costs" on indigent defendants. Further, those who are not in default can request for a conversion of their unpaid costs to community service if payment would be a manifest hardship. Defendants may only be punished for a willful failure to pay their LFOs. Non-payment caused by homelessness and mental illness will not be considered willful. 

Thus, there are many good aspects to the bill that should make it easier to reduce LFOs on defendants. Hopefully additional reforms are employed in the future.