Copyright (c) 2008 Robert Keefer
Many people are not concerned about DUI laws as they say they will never drink and drive. Such people assume their actual innocence immunizes them from arrest. Unfortunately, actual guilt is not a predicate for DUI arrest --- all it takes is an officer who says you are drinking.
Police officers are not very good at discerning between people who are .08 and people who are .00. Indeed, few people are very good at determining who is "legally drunk" at .08 and who have no alcohol at all. The reason the police do not detect impairment in subjects with .08 is that there is usually no impairment to see. The .08 standard is an arbitrary standard -- most people are not impaired at .08 despite what MADD, the media and the government tells you. For that reason, in today's America, the police arrest anyone they believe smells of an alcohol beverage.
If this hypothesis is true, that smell by itself merits arrest, then there should be a lot of .00 people who are wrongfully arrested. People who smell of alcohol or the police believe smell of alcohol but actually have no alcohol in their system. Thomas Workman, an electrical engineer with many years of work experience who is also a patent attorney, has done a detailed analysis of Florida's breath alcohol testing program results. Mr. Workman found that one out of every twenty Florida citizen tested for alcohol had two zero (0.000) samples. No alcohol was found. From April 1 2006 to November 30 2007 there are more than 3,900 citizens who provided two samples of 0.000, for DUI tests.
From April 1 2006 to November 30 2007 there are about 58,000 citizen tests with results above 0.000
This works out to 6.7% for Florida as a whole. But do some police officers arrest more innocent people than others?
When you look at the data and identify the arresting officer, some disturbing patterns emerge. The same officers are making these "double 0.000" tests, over and over. While Florida Dept of Law Enforcement claims to be monitoring the tests, they do not look for these kinds of patterns, or if they are, they ignore what they see. This is not the whole story according to Mr. Workman.
For citizens who supply a first sample that satisfies all of the requirements set by Florida, and who then are charged with a refusal, because a second adequate sample is not supplied, it is shocking to look at what the first sample was measured to be.
Of all citizens who do supply a first sample, and then fail to supply a second sample, over 90% of these first samples measure to be 0.000. This means that a citizen is punished for a refusal, which includes the possibility of a jail sentence, when the officer knows that the citizen has no impairment. Why would a citizen with no alcohol in their system refuse to give a second sample?
These citizens, who represent 1% of all tests of citizens, are treated far worse, because they do not have the benefit of the 0.000 result, and they likely are prosecuted, and many convicted. They can also be convicted of the crime of failing to provide a sample, even though it is likely that the second sample was prevented by the officer (again, why would a sober person refuse to provide a second sample?)
Then there are the citizens who are tested with machines that are defective. Mr. Workman will be presenting his findings of these, who represent more than 10% of all tests (that is more than 1 out of ten tested is being tested on broken machines) at the annual NACDL conference in Las Vegas.
We are all indebted to Mr. Workman for his time consuming analysis which indicates that thousands of innocent people are being convicted of DUI with 0.000 blood alcohol. This result supports the hypothesis that since .08 is usually not physically distinguishable from 0.000, people with no alcohol in their systems are subject to arrest, prosecution and conviction for DUI.
If you get arrested despite being innocent and the officer decides that you refused the breath test, you can get convicted despite your innocence. Even the innocent need to be afraid of DUI laws.