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Breath-test Results Are Only Admissible If DWI Suspect Consents

In South Carolina, if a driver is pulled to the side of the road and suspected of DUI, the police may no longer administer a breathalyzer test without a warrant, or consent in the majority of cases.istock-arrest with open container

A recent Supreme Court ruling has decided that a man, who was given a blood test without his permission or a warrant, was not to be charged after evidence of the breath-test was offered. Two lower courts tossed out the evidence, which is why the case was brought before the Supreme Court. The SC upheld the lower court’s ruling that the dissipation of alcohol in someone’s blood stream was not sufficient to override the requirement that police get a warrant before subjecting that person to a blood test.

In this particular case, the driver was pulled to the side of the road after the officer observed the man speeding and swerving.

When the officer approached the car, he found that the man had been charged with two previous drunk driving incidents. The man also failed several field sobriety tests, and after he refused to submit to the breath-test, the officer drove him to the hospital to give the man an official blood test.

However, the man had never agreed to do so, and the officer had never obtained a warrant. While, in the State of South Carolina, officer testimony regarding a driver’s intoxication is permitted, the problem in this case is that the officer used the tainted breath-test evidence. All of the courts here found that the evidence was inadmissible.

If you or a loved one has been charged with a DUI in South Carolina, contact the law offices of Reeves, Aiken & Hightower, LLP for a confidential consultation toll-free at 877-374-5999.

What is a “BAC?”

The amount of alcohol in a person’s body is measured by the weight of the alcohol in a certain measure of blood; also known as the “blood alcohol concentration,” or “BAC.”

When alcohol is consumed by a person, it is absorbed directly through the walls of the stomach and the small intestine; it then travels into the blood stream throughout the body finally impacting the brain.  This is how one becomes “intoxicated.”  Alcohol is  absorbed rapidly and can be measured within 30 to 70 minutes after a person has had a drink.

There are a number of factors that play into how fast a person’s BAC rises.  First, the number of drinks one consumes is the most obvious; the more one drinks the higher the BAC.  Second, how quickly one imbibes alcohol can be an issue because the body breaks down alcohol at a rate of about one drink per hour; therefore, if a person consumes one drink per hour, it will break down at a more rapid pace than five drinks because of the filtration limitations of the human liver.  Third, gender can also contribute because women generally have less water and more body fat per pound than men, and alcohol does not go into fat cells as easily as other cells.  Thus, alcohol can remain in the blood of women for longer periods of time.  Fourth, one’s weight is another factor because the more a person weighs, the more water is present in the body.  This causes the dilution of the alcohol, and the lowering of the person’s BAC.  Finally, the last factor is how much food a person has in his or her stomach.  Absorption will be slowed down if you have had something to eat.

Due to these multiple factors, it is very hard for a person to assess his or her own impairment.  Though small amounts of alcohol can affect one’s ability to drive, people often swear they are “fine” after several drinks.  However, the failure to recognize impairment can often be one of the symptoms of impairment.

This lack of recognition causes a person to get behind the wheel of a car when they shouldn’t.  As a result bad things can happen; one may be arrested by the police, or even more serious they are more likely to be involved in an automobile accident as a result of their impairment.  This could injure or even kill the driver and also the people who were driving in the vehicle.  The charge of DUI could then be escalated to a more serious charge of Vehicular Manslaughter and Felony DUI.

If you or a loved one has made the decision to get behind the wheel of a car, boat, or any other motorized vehicle and been charged with a DUI or Felony DUI, call the Law Offices of Reeves, Aiken & Hightower to discuss your outcome. Contact us today for a free consultation at704-499-9000 or 877-374-5999 toll-free. 

Where DWI and Wrongful Death Cross – NC Felony DUI

Father, son die in motorcycle wreck; woman charged with DWI

MORGANTON, NC (WBTV) – Amie Jo Skeens has now been charged with murder in the wreck involving a father and son on a motorcycle two weeks ago.

Skeens, 37, was initially charged with DWI and felony hit and run after Stephen Moody and his son Kevin were killed October 25 on Airport-Rhodhiss Road. Skeens was charged with two counts of second degree murder on Wednesday morning.

District Attorney James C. Gaither told WBTV Skeens could face up to eighteen and a half years in prison for each count if convicted, in addition to the DWI charge and previous drug charges.  More charges are also expected to be filed in connection with the wreck.

The father and son were riding on a motorcycle with friends just ahead of them on another motorcycle when Skeens, according to Troopers, came around the corner into their lane.

The first motorcycle was sideswiped but the Moody’s motorcycle was hit head-on, throwing father and son into the windshield and onto the roadway.

Skeens, according to troopers, left the scene and pulled the vehicle into a wooded area about a mile down the road.

She was spotted by neighbors there and was arrested when authorities arrived on the scene. Brent and Kevin Moody were pronounced dead at the scene of the wreck.

Skeens, say troopers, made a statement to the effect that she was “high.” A breathalyzer showed her blood alcohol level at .10, above the legal limit.

Authorities also secured a warrant to take some blood for further tests. Investigators think it’s possible she was under the influence of drugs as well at the time of the crash.

Skeens has a history of drug convictions and served probation. In her vehicle were pamphlets for Narcotics Anonymous and a book on the twelve step program the organization uses for recovering addicts.

She was served warrants from a 1996 case involving the alleged possession and sale of crack cocaine. Those warrants, according to officials, were never served at the time. Her name on the warrants is listed as Amie Jo Skeens Thrift.

Skeens is being held under a $50,000 bond for each murder charge in addition to the already $60,000 bond she received for the DWI and hit and run charges.

A first court appearance has been scheduled for November 7.

At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the criminal, insurance defense, and medical aspects of complex cases. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com




Why Breathalyzer “Science” is Junk Science

Breath Tests for Blood Alcohol Determination: Partition Ratio

by Srikumaran K. Melethil, Ph.D, Professor of Pharmacology, University of Missouri at Kansas City

The author is a professor in the UMKC School of Pharmacology, and also a graduate of the UMKC School of Law. The following is a condensation of a paper written in fulfillment of a research and writing requirement in the course of Scientific Evidence and Opinion Testimony.  In relevant part:

I. SCIENTIFIC BASIS OF BREATH TESTS

1. Introduction:

In cases involving drunk driving, the prosecution has to prove that the defendants blood alcohol concentration (BAC) at the time of the offense is at or above a statutory concentration. In the majority of jurisdictions it is 0.10% [i.e., 0.1 gram of alcohol per 100 milliliters of blood]. In some jurisdictions, it is 0.08%, see People v. Ireland, 39 Cal. Rptr. 2d. 870 (Cal. Ct. App. 1995). In this connection, there is an ongoing national debate to reduce this value to 0.08% nationwide. In order to provide proof of BAC it is necessary to obtain a suitable biological sample (i.e., blood, urine, expired air) from the defendant at the time of arrest. Determination of BAC by use of a breath test, is by far the most popular scientific test for drunk driving. The breath test involves the measurement of alcohol in an appropriate sample of breath, expired alveolar air. (Alveolar air is that part of the expired air, which is in equilibrium with blood; usually this is taken as the terminal portion of expired air. One likely reason for the high variability observed in partition ratios is the difficulty in obtaining true alveolar, or deep lung air for analysis). This breath alcohol concentration is then multiplied by a factor called the partition ratio to convert the concentration measured in the breath to the corresponding alcohol concentration in the blood. In most jurisdictions, a value of 2100 is used for this ratio by statutory mandate. However, this partition ratio of 2100 can differ from individual to individual or differ in a given individual from time to time. Therefore, while it is quite simple to perform, the use of breath tests to determine BAC suffers from a major and fundamental weakness in that it is an indirect method.

For that reason, the conversion (extrapolation) of the directly measured concentration of alcohol in the expired air to obtain its concentration in the blood has been the subject of much litigation. Understandably, this conversion is fraught with problems of variability (uncertainties) introduced by the theoretical assumptions underlying the method. As was pointed out by one of the leading researchers in this area, The most trying forensic difficulties were consequent to what now appears to some to be an error in policy made by the pioneers in breath testing. This was in deciding to calculate the blood concentration from a quantity of alcohol found in the breath. Mason & Dubowski, Traffic & Chemical Testing in the United States: a Resume & Some Remaining Problems, 20 Clinical Chemistry 126, 128 (1974). The following section will present the scientific basis for the statutory decision to select a partition ratio of 2100 and the variability, both inter-subject and intra-subject, to be expected in this ratio.

2. Basic assumptions:

A direct correlation is assumed between the concentration of alcohol in the alveolar air and concentration of alcohol in the blood, more precisely, ethanol. This assumption is based on Henry’s Law which states that, at constant temperature, the concentration of gas dissolved in a liquid is proportional to its concentration in the air directly above the liquid. Brent and Stiller, Handling Drunk Driving Cases, ‘ 7 (Breath Tests) (1985). As applied to determination of BACs, this means that the concentration in the expired alveolar air is directly proportional to the concentration in the blood (i.e., the greater concentration of alcohol in the blood, the greater its concentration in the expired alveolar air). It is at the alveoli, commonly called air sacs (of which there are about 700 million in an average adult), where exchange of gases occur between blood and the expired alveolar air. Alcohol is a volatile liquid and assumed to freely diffuse (i.e., readily pass) across the membranes of the alveoli. Due to the latter assumption, it is also assumed that the exhaled alveolar air is in equilibrium with the blood. Equilibrium can be best explained as a condition where the ratio of concentrations of alcohol in blood and expired alveolar air has achieved a constant value. Therefore, in principle, its concentration in blood can be estimated by measuring its concentration in the expired alveolar air.

The commonly used partition-ratio of 2100 can be expressed as follows:

In principle, this ratio is determined by simultaneously (or as close to simultaneous as experimentally possible) measuring the concentration of alcohol in the blood and expired alveolar air of test subjects administered alcohol under controlled conditions. While values in the scientific literature for this ratio range from 1900 to 2400, an international panel chose, in 1972 Essentially by fiat, the currently accepted value of 2100. Brent, supra at 133.

3. Factors that affect the partition ratio.

Some factors that affect the partition-ratio, such as the effect of temperature, may be obvious, even to a non-scientist. There are others that are not so apparent. These factors can either increase or decrease the actual BAC.

a. Effect of Temperature: The widely used partition blood-to-air partition ratio of 2100 is based on a normal body temperature of 98.6 0F. A higher body temperature of the individual will overestimate the actual BAC because of the higher volatility (or vapor pressure) of liquids like alcohol at a higher temperature. An elevation in body temperature of 1 0C (1.8 0F) results in a 7% higher value in the result. Therefore, a person with a body temperature of 100.4 0F and with an actual blood alcohol of 0.0935 % will register a value of 0.10 % by the breath test. As can be seen from this hypothetical example, a small difference in body temperature can make the difference of guilt or innocence of drunk driving in defendants with a BAC close to the legal limit. This widely accepted ratio is also based on the assumption that the average temperature of exhaled air is 93.20 F.

b. Atmospheric Pressure: There is little evidence to support the belief that the partition ratio is affected by atmospheric (barometric) pressure. Breathalyzer tests conducted at altitudes of 5000 feet and 10000 feet essentially gave the same results. This is expected based on scientific principles of gases.

c. Cellular Composition of Blood: Blood contains suspended cells (e.g. red and white cells) and proteins, and is therefore only a partial liquid. The partition ratio of 2100 is based on a average hematocrit (the cell volume of blood) of 47%; hematocrit values range from 42 to 52 % in males and 37 to 47 % in females. Therefore, a person with a lower hematocrit will have falsely elevated blood alcohol based on a breath test; this variability has been estimated to be relatively small, ranging from – 2 to + 5 %.

Since alcohol freely diffuses into cells but not into cellular membranes, the subtle point to be aware of is the variability in volume of the cell debris (i.e. volume of cell membranes after cells are analyzed), and not the actual hematocrit that is responsible for the reported variability. Understandably, a higher hematocrit value represents a higher value of cell debris. The mean value from several studies show that debris can account for about 16% of the volume of blood. For example, 0. 119 mg % (in serum) is equivalent to 0.10% of BAC. Fitzgerald and Hume, Intoxication Test Evidence: Criminal and Civil, 4:26 at 152 (1987).

d. Physical Activity and hyperventilation: Exercise can underestimate blood alcohol values. In one study BACs of subjects before and after running up a flight of stairs decreased 11 to 14 % after one trip and 22-25 % after two such trips. In a another study, a 15% decrease in blood alcohol was reported in subjects following vigorous exercise or hyperventilation.

e. Changes in water content of expired air: Water, present in the form of vapor, in expired air will condense into the liquid form with a lowering of temperature. Air exhaled into the tubes of a breath test device, such as the Breathalyzer, is assumed to be saturated with water at about 93.2F . Decreases in this temperature can result in an underestimation of reported BAC due to condensation of water and the subsequent removal of alcohol from the expired air. One study showed that when the mouthpiece of the breath test instrument was kept at 23 0C, there was an average decrease in temperature of exhaled air by 1.6 0C.

f. Radio Frequency Interference (RFI): Andre Moenssens, et al., Scientific Evidence in Civil and Criminal Cases  3.09 at 204 (4th ed. 1995). This interference describes the effect of an electronic instrument on a radio wave or current that it is not designed to pick up. If a particular Breathalyzer as an electronic instrument were susceptible to RFI, then the measurement of light distance obtained when the operator balances the meter might not be an accurate indication of the amount of alcohol in the breath sample. Instead, the light distance might reflect, in part, a deflection in the meter needle caused by a stray current induced by radio waves in the surrounding environment.

At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com


SC DUI – Case Backlog – Justice Delayed But Not Denied

DUI Case Backlog Reduced After S.C. Supreme Court Issues Order

A large backlog of DUI cases has been sigmificantly reduced after South Carolina Chief Justice Jean Toal ordered magistrate and municipal courts to clear thousands of lingering alcohol related cases.

According to a report in the Charleston Post and Courier, Chief Justice Jean Toal issued an Order requiring all non-jury cases older than 60 days and jury cases older than 120 days to be closed by July 2011.

The order cleared 11,000 cases, but thousands of old cases remained. During the four-month period, new cases were constantly being added, so by the end of July, 14,000 cases still awaited hearings. Those cases are being processed under the framework of the original Order. Cases where no jury trial has been demanded are being scheduled for disposition within 60 days of the initial court date, while cases that are moved to the jury trial docket are being scheduled for trial within 120 days.

Various factors had contributed to the growth of the backlog. Chief Justice Toal pointed to one source as a shortage of judges statewide. The article mentioned that party-requested continuances have delayed cases, sometimes going back years.

The reality is that a number of factors contributed to the backlog. Many law enforcement agencies developed their own special DUI Task Force. Such task forces operate with a mission to make more arrests for DUI. The penalties for being convicted of DUI in South Carolina increased dramatically effective February 2009, prompting most arrestees to retain legal counsel to defend them, rather than simply plead guilty because it was less costly.

Old Cases Out First

It was reported that after the order, 42 percent of the cases that had been pending were dropped or dismissed; in the four months before the order, only 30 percent had been dropped.

These numbers are misleading in that they suggest that the Order caused prosecutors to simply drop cases with no regard to the merits. The 12 percent difference can also be explained by the approach some prosecutors have taken historically where they hold a weak case rather than dismiss it in order to use the pending charge as a type of individualized deterrent.

Another area of confusion stems from how one might interpret what actually happens when a charge is dismissed. There is no lesser included offense to DUI, therefore in cases where negotiations result in a plea to Reckless Driving, Leaving the Scene of an Accident or even Driving With An Unlawful Alcohol Concentration, the DUI charge must be dismissed when the new traffic ticket is issued to the defendant.

Not A Priority

Despite the fact that the Defense, the Prosecution and the Court approach the disposition of DUI cases with the same level of commitment as other types of criminal cases; many of the DUI and DUAC cases have languished because the municipal and magistrate courts are at the “the bottom of the food chain” in terms of forum priority. This means that lawyers are often required, by rule, to attend to cases in higher-level courts, leaving the DUI cases to be pushed back to a later date on the courts’ calendar.

Resources Also An Issue

In most of DUI 1st offense cases made by the South Carolina Highway Patrol, the state trooper represents the state as prosecutor of these DUI cases. If the trooper appears at the courthouse and the case is delayed or continued, they will have to return later, again taking them away from their patrol.

In a story by WPSA-TV, Chief Justice Toal commented that the troopers should not be required to prosecute the case. She called for “a lot more resources” to prosecute the cases, using attorneys for the state instead of the troopers, as they would be able to more accurately gauge the strength of the case.

David Ross, director of South Carolina’s Prosecution Commission agreed. He noted the increasing complexity of the DUI laws, and that even if the troopers had the time, an attorney should prosecute the case.

Prosecutors are generally more up to date on developments in the law, and understand legal procedure and the rules of evidence. Thus they are in a better position to assess the best course of action in a given case. Law enforcement officers serve a different function in the system and the people of South Carolina are best served when these roles are not combined.

This, of course, is problematic with ever-tighter state budgets, which offer little flexibility for increases in resources, and often require cuts in staffing. Part of the backlog is due to the ending of grants from the state to the counties. Several Circuit Solicitors around the state have obtained grant funds and have used the same to employ prosecutors for the purpose of prosecuting DUI cases in Magistrates Courts. But this solution may be temporary as it is unknown if these grants will be renewed.

Many municipalities have taken a different approach by hiring lawyers to serve as part-time prosecutors. This type approach is only as good as the commitment made by part-time prosecutor. In jurisdictions where the part-time lawyer accesses the case and manages the movement of the case on the docket; this approach is very effective. In situations where the part-time prosecutor simply parrots the position of an interested witness, this approach can be very inefficient.

Simpler Law?

Laura Hudson, the Public Policy Liaison for South Carolina Mothers Against Drunk Driving’s, spoke with WSPA-TV about the backlog, and was quoted as saying, “If you never get a conviction for that first one, and it’s dismissed, the second on[e] you get is treated as a first, the third one you get is treated as a [second], so you’re masking … that very dangerous driver,” Hudson said.

Her basic complaint was while it may have helped clear the backlog, it may have “let off” many drivers who received lower-level plea agreements, for charges like reckless driving. Hudson noted, “The only real solutions are more prosecutors, more courts or a less complicated law, like “per se” laws that many states have.” According to the story, some of these laws have been ruled unconstitutional in some states.

In states where 0.08 BAC is “per se” intoxicated, the accuracy of the test, the calibration of the equipment and the training of the operator can all be questioned and complicate the case.

Given the fallibilities and inexact nature of testing breath for accurate blood alcohol values, reliance on the number reported by a machine, as the only relevant evidence of impairment, is a major step backward, not forward. Such an approach nullifies each of the most fundamental protections afforded in America; trial by jury, presumption of innocence and the demand of proof beyond all reasonable doubt before a criminal conviction.

Notwithstanding Mrs. Hudson’s complaint, a review of the statute confirms that South Carolina has one of the most straight forward DUI laws in the country. Like everywhere else in the USA, an officer can conduct a traffic stop as long as he has articulable suspicion or probable cause of a violation of the law. The legal standard which defines DUI is “material and appreciable impairment.”

The complaints about the law being complex or complicated often arise due to the officer’s lack of compliance with the video recording law. Opinions on any subject often vary. The issue of whether a driver is impaired as defined by the law is a matter of opinion.

Fairness is ensured by the requirement that the investigation be video and audio recorded. Activating the recording equipment is not complicated; recording systems installed by DPS are set up so that the camera comes on automatically once the blue lights are activated.

Every law enforcement officer in the state has been given a card which lists Miranda rights and been taught when to read it. Everything else is a question of whether the citizen’s conduct as recorded on video is consistent with the officer’s conclusion and written report.

Rather than contributing to a backlog, the proper use of tools like video recording make it much easier to distinguish a bad case from a good one; thus eliminating the need or desire for many jury trials.

At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts.  We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are effective criminal trial attorneys.  We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charge to reckless driving.  Call us today for an attorney case review of your particular situation. We are here to help.

Article provided by the Carroll Law Firm of Charleston, South Carolina