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.

The Pre-textual Stop

Article 1, Section 7 of the Washington Constitution states that "[N]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."

Because the language of this constitutional provision is different from the Fourth Amendment of the United State's Constitution, it is more protective of an individual's privacy interests.

A pre-textual stop occurs where a traffic stop is made, not to enforce the traffic code, but to conduct a criminal investigation. Normally the level of suspicion required to made a traffic stop is a reasonable and articulable suspicion that a traffic infraction occurred. Thus, it is relatively easy to conduct a traffic stop. The problem occurs where the police suspect another crime, but are using a traffic infraction as a reason to stop the person and conduct a criminal investigation.

In State v. Ladson, 138 Wn.2d 343, (1999), the Washington Supreme Court wrote that allowing pretext stops to continue would be a "triumph of form over substance." It would be a "triumph of expediency at the expense of reason." It ruled that pre-textual stops were illegal in Washington.

In a subsequent decision in 2012, State v. Arreola, 176 Wn.2d 284 (2012), the Washington Supreme Court re-addressed the issue of pre-text stops where an officer got a report of a DUI, located the vehicle suspected of DUI, followed it, noticed it had a muffler violation, and pulled it over for the muffler violation. The officer testified that he was primarily motivated in stopping the vehicle because of the DUI call but also that the muffler violation was an "actual reason for the stop." Well, that sure sounded like a pre-text. At least that is what the Court of Appeals thought.

Astoundingly, six Justices found that this was not a pre-textual stop, but was actually a "mixed-motive stop." One justice concurred in the result only. Two Justices dissented.

The most interesting part was that Arreola did not overrule Ladson. In fact, the Court expressly held that Ladson was still the law and the pre-textual stops were illegal. The Court devoted a significant potion of its decision to point out that the traffic code is extensive and complicated, and “virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter" citing Ladson and an article that Ladson quoted by Peter Shakow. The Arreola court also noted that "there are concerns that some officers will simply misrepresent their reasons and motives for conducting traffic stops" citing Samuel Walker's "Taming the System".

Despite all this, the Court held that if a legitimate reason for a traffic stop was secondary and the officer was primarily motivated by a hunch or illegitimate reason to conduct a stop, that the stop was now a "mixed-motive" stop and was justified.   

Only two Justices pointed out the obvious that the reasoning applied by the majority "is for all practical purposes indistinguishable from the reasoning [the] court rejected in Ladson."

Better financially for police to kill suspects rather than wound them?

Recently, a Kern County Sheriff was recorded as saying that it makes more sense financially to kill someone than to wound them. The recording can be viewed on Facebook.

While most police would not engage in a shoot first, ask questions later policy, there have been an alarming number of incidents where police have shot suspects. Many of these shootings are completely unnecessary.

A collection of shootings from 2015 can be viewed here (WARNING: these are graphic videos).

Many police forces began equipping their officers with non-lethal options such as tasers. However, no one seems to know if implementing these tools have reduced shootings. Training and emphasis still seems to be on the use of firearms. How many officers are spending their weekends at the taser range versus the gun range?

Keeping the number of shootings down is important not just from a life saving standpoint, but sometimes these shootings lead to riots. And it should be pretty obvious that riots are not good for the economy.

It is a questionable premise to think the society can police away crime. Generally, most people do not commit crimes because they want to. Many are addicts who are stealing to fuel their habits. Some were raised in households that engaged in domestic violence and are not mimicking what they see as adults. Some crimes occur in the heat of the moment (sometimes with alcohol involved). Some are homeless and some of their actions are criminalized. Many that get involved in the criminal justice system are mentally ill. The crimes that are actually carefully planned out are pretty few and far between.

These problems are better dealt with education, treatment, and a limited amount of assistance to get a roof over their head and food. Obviously, it is expensive and difficult to supple these resources to the many who need them. But providing these resources makes more sense financially and from a societal standpoint than killing someone, as they might if the Kern County Sheriff has any say in the matter.