DUI PROCESS AND LAW





TABLE OF CONTENTS

INTRODUCTION
PERSONAL ACCOUNT
PROBLEMS WITH BREATHALYZER MACHINES
ILLINOIS DUI LAW
APPROXIMATE COST OF A DUI
BAC CALCULATOR
CONCLUSIONS






On February 11th, 2005 I was arrested for driving under the influence while on my home at 10:30 just a few miles from my driveway. I felt as though I was driving in a safe and responsible manner, however the arresting officer felt otherwise. This is an account of my personal experience, followed by a compilation of information gathered from a number of sources, as well as my own observations, concerning the enormous inconsistencies and contradictions in regard to DUI law enforcement and legal procedures. Even if you do not drink, you are vulnerable to these processes. Ignorance of the law is no excuse. Ignorance of your rights means you waive those rights. I respect law enforcement, but the system is seriously flawed, and I do not envy the officers who have the burden of subjective responsibility when dealing with these flaws.                     jw.

Personal Account / Feb 11th, 2005 (Attorney Cover Letter) :

First and foremost, I would like it to be known that Deputy Huseman behaved in a very courteous and professional manner, as did I, and that the following statements are in no way a challenge to his credibility or competence. These statements are largely hearsay on my part and subjective in analysis, but accurate and true to the best of my recollection and suitable for reference material in determining how this case can best be resolved. Also, I would like it to be known that this is my first offense and that I have had a spotless driving record for over 30 years.

At approximately 11pm I was pulled over by Deputy Huseman and he asked me if I was having problems because I was weaving from time to time. I told him I was having trouble seeing due to a faulty heater core that was spewing steam and antifreeze from the defroster vents, which was clearly evident from the oily moisture formed on all the windows, and that I was continually wiping the windshield with a rag in an attempt to get home.

Officer Huseman made no comment as to the condition of my vehicle and asked if I had been drinking. I answered honestly and admitted that I did in fact have a few beers at a friend's house and that I was headed home to rest up for work the following day. At this point I thought he would issue me a ticket for insufficient visibility on my rear window. After verifying my license and insurance he then asked me to get out of the car to perform a FST.

The "horizontal gaze" test was not a problem, however the "walk a straight line through moving surface lights" test is one that I would not be comfortable with at any time. Besides having a history of back problems that make it difficult to walk normally, I am also Acrophobic. Flashing lights do not affect me, but moving ground lights trigger vertigo, the sensation of falling and a subsequent panic attack. I am unable to walk across a dance floor that uses a lighted mirrored ball without feeling that I am falling in the direction of the moving lights. If I can grab onto something I know to be stationary the effect leaves almost immediately, or if the luminance of the background is significantly dominant over the projected movements, then the sensation goes away also. In my desire to be well rested for what was supposed to be a very busy day, my prime concern at that time was to simply get done with it as quickly as possible so I could be on my way. Had I known I had a choice on the FST, I could have declined or at least requested a headlights only test. This was a huge mistake on my part and cannot be undone now, nor can it be taken into account. It does raise concerns about how these tests are administered when dealing with subjects prone to seizures, motion sickness or inner ear conditions.

Upon completion of the FST I was handcuffed and taken to the Adams County Courthouse arriving at around 11:40. We continued to engage in small talk until 12:15 or so when I blew into the breath testing device. Officer Huseman informed me that it resulted in a .17 BAC, read my rights and officially issued an arrest. I was then fingerprinted and released on bond.

Again, this was a huge mistake on my part for being ignorant as to what this number meant and not knowing that I could have requested a blood test that would have presumably yielded a much different result. I assumed that the legal limits these days were at that "near-zero" tolerance level and also assumed that the device itself had a 5 to 10% margin of error. When I compared this result later with the standard weight vs. number of drinks BAC chart I found this margin to be more in the 80% range. Also, in theory a person is able to process and expend (1) 12oz beer per hour, in which case the device should not have registered at all. I believe this theory to be more of an exception manifested in rare individuals who have a much faster than average metabolism. I believe the more realistic version of the BAC chart is the Miller/ Munoz chart, which is prorated to adjust for simultaneous absorption and expulsion of ethanol over time, factoring in a probable progressive increase in expulsion time assuming that the subject is not urinating frequently or consuming equal amounts of water. In my case, I rarely drink water and urinate only a few times a day. The five bottles of Michelob Light consumed from 4:45pm to 10:25pm formulates as follows:

 

After 5 Hours of Drinking

Body Weight

Body Weight

Number of Drinks

100

120

140

160

180

200

220

240

2

000

000

000

000

000

000

000

000

3

031

013

000

000

000

000

000

000

4

068

044

024

012

000

000

000

000

5

105

075

050

035

020

010

005

000

6

142

106

076

058

040

028

022

010

7

179

137

102

081

060

046

039

025

8

216

168

128

104

080

064

056

040

9

253

199

154

127

100

082

073

055

10

290

230

180

150

120

100

090

070

11

327

261

206

173

140

118

107

085

12

364

292

232

196

160

136

124

100

13

401

323

258

219

180

154

141

115

14

438

354

284

242

200

172

158

130

15

385

310

265

220

190

175

145

16

416

336

288

240

208

192

160



William R. Miller and Richard F. Munoz, University of New Mexico

NOTE: My actual body weight is 132 lbs. which puts the calculated BAC at .047

This is one of the more unforgiving charts of this kind but still is nowhere near the .17 returned by the device used by Officer Huseman. The idea that this level elevated during the hour I was detained before the test due to "saturation" I believe does not apply. Had I consumed all 5 beers in the hour before leaving for home this would be a factor since, being 7 minutes from home, I would have been sleeping peacefully for quite some time before reaching peak BAC. In my case, this number should have been on the decrease as my first drink would have surely been out of my system after 7 hours.

So, assuming that the device was properly calibrated and compliant with any required manufacturer re-certifications, the only remaining possibility is the presence of an interfering compound in the lungs or bloodstream that could affect the test result without triggering the interference circuitry. As mentioned, a faulty heater core was the reason for the original stop which resulted in my arrest. It has been leaking steam and fumes for quite some time and I am at fault for not having it replaced. I found significant data on ethanol exposure from a number of sources, the worst being toluene and methanol, but very little data regarding prolonged exposure to concentrated ethanol fumes from heated antifreeze that might affect breathalyzer test results. I will be doing more research in the next week or so, but if this research does not yield any supporting evidence regarding possible contamination of the breathe sample I will enter a guilty plea and concede that the anomalous reading is fair and accurate, and move on to what options, if any, I have available to best minimize the damage from this incident.

James A. Weyand Feb. 22, 2005




March 14, 2005 :

As a follow up, this excerpt is from Illinois Secretary of State Jesse White :

'To reach .08, a 170-pound male would have to consume four or more drinks in a one-hour period on an empty stomach. A 137-pound female would have to consume three drinks in one hour to reach .08. A drink is considered a 12-ounce beer, a 5-ounce glass of wine or a cocktail containing 1.5 ounces of 80-proof liquor.'

With that said, the following information concerns probable cause criteria and what is regrettably the ONLY piece of evidence used to determine if a law has been broken, the breathalyzer. Keep in mind that the basic fact of the matter that everyone ignores is that drinking and driving is NOT against the law. Driving while too intoxicated to safely operate a motor vehicle IS against the law, but the guidelines for that law are based entirely on the five minute complete background check and complete physical, mental and behavioral evaluation of a total stranger who is most likely scared to death. Whether you are actually intoxicated or not is determined by a breathe testing device that uses an infrared emitting diode to estimate ethanol concentrations. This estimation is affected by an almost infinite number of variables, and even though the same test given to the same subject over and over will likely be consistent within 5%, the same test given to 10 different subjects of equal body weight and equal ethanol exposure would most likely return 10 completely different results. Further damaging the reliability of these devices, aside from the physiological variables of the individual subjects, is their inability to determine the source of these compounds and their limitations on identifying interfering substances that affect the end result.

Much of the following pages is far beyond my technical understanding or patience, but does raise concerns about the accuracy of this critical testing procedure. This information would probably be more useful printed out for later reference :




March 18, 2005 :

The above research is extensive to the point where any bottom line conclusions seem buried in technical redundancies. Again however, it is NOT against the law to drink and drive, it is against the law to fail a breathalyzer machine. The penalties for this failure are devastating and these devices need to be scrutinized as in depth as possible since they are the sole basis for determining if a person's driving abilities are impaired. Ironically, many people are probably safer drivers after a few drinks because of a heightened sense of awareness of how important it is to follow all the rules and watch out for the other guy, as opposed to how one might drive in the morning when they are running late for work. Of course, excessive intoxication makes it impossible to safely operate a vehicle as vision, perception, coordination, reaction time and alertness diminish. Other forms of impairment that are generally not regarded as criminal include inexperience, poor eyesight or other sensory deterioration due to aging, fatigue/ exhaustion, stress, medication, distractions such as cellphones or kids, or any number of physical and/ or mental limitations. Driving under impairment can be considered irresponsible or even reckless, but driving under presumed impairment from alcohol is regarded as an act of malicious endangerment. The following info addresses the severe consequences of being convicted for failing a breathalyzer :



I have had over a period of hour(s)

I am Male Female

and I weigh Pounds Kilograms

and I live in (so that the result is displayed in the appropriate units).


Despite the inconsistencies of breathalyzers, a personal breathe tester can give an accurate estimation of what the police breathe tester would read. As with the official devices, the results of these hand held units vary greatly from person to person. They are however a good indicator of what to expect if you are required to take a similar test. This is the best affordable unit I've seen and this is the best price I've seen for this unit :