License Plate Tags for Drunk Drivers: A Wrong Turn?

Below is a story published on February 25, 2011, in the Wall Street Journal. For more information about this article, please visit: http://online.wsj.com/article/SB10001424052748704520504576162402821321860.html?mod=googlenews_wsj#articleTabs%3Darticle

Washington has become the latest state to see a push for a so-called whiskey-plate law to combat drunk driving, a move defense lawyers and civil libertarians say can unfairly stigmatize offenders, and sometimes their families as well.

The law would require first-time drunk drivers to replace their license plates with easy-to-spot tags that end with the uppercase letter "Z," a signal to police to pay close attention to the car. Minnesota, an early adopter of such a law, uses the letter "W"—hence the term "whiskey plate"—on a plain white background.

Offenders in Washington would be required to display the special plates for three years after their driving privileges are restored. Republican Rep. Norma Smith of Clinton, Wash., who introduced the bill earlier this month, said it would give police another tool to crack down on a dangerous practice.

"The recidivist rate on drunk-driving is extremely high," she said. "Too many people continue to die these needless deaths."

The bill won't come to a vote for several months, but opponents are already making their voices heard.

Vanita Gupta, deputy legal director of the American Civil Liberties Union, said whiskey plates were part of a "trend of overcriminalization" in the U.S. "These sorts of laws just create obstacles to offenders getting fresh starts and moving forward with their lives," she said.

Mothers Against Drunk Driving Chief Executive Kimberly Earle said the organization supports whiskey-plate laws as a "useful tool" for police, but that MADD is more focused on measures it believes have a better track record for preventing drunk driving, such as requiring offenders to pass a car-mounted breathalizer to enable their engine to start.

A handful of other states have adopted similar laws. In Minnesota, certain drunk-driving offenders are required to attach special plates to their car for a year after their driving privileges are restored. An earlier version of the Minnesota law was enacted in 1988. Drunk-driving-related fatalities have fallen steadily since.

Jean Ryan, Minnesota's impaired-driving program coordinator, said that a host of factors were likely involved in that drop, including strengthened enforcement efforts.

Matt Langer, a captain with the Minnesota State Patrol, said that while he had arrested drivers whose cars had whiskey plates on new drunken-driving charges, it was also routine to drive past them, with "nothing to be concerned about."

David Risk, a criminal lawyer in Minneapolis, said the law could have unwelcome ramifications. He said he had a client whose wife ran a day-care center that owned several vans, all of which were co-registered in his client's name. After his client's blood-alcohol test came back with a reading over the legal limit, Mr. Risk said, the Department of Public Safety told the day-care center it had to get whiskey plates for all its vans.

"You can imagine that didn't do wonders for business," he said.

I Got a DUI for Christmas

Long lines at the mall and Grandma’s fruitcake are no longer the only things to worry about during the holiday season. With the Drive Hammered, Get Nailed campaign in place, holiday drivers ran an increased chance of being stopped and arrested for a DUI in the State of Washington.

The winter Drive Hammered, Get Nailed campaign began on November 25, 2010 (Thanksgiving Day), and ran through January 2, 2011. During this time, state and local law enforcement conducted extra DUI patrols throughout King County in attempts to keep impaired drivers off the roads during the holiday season.

This campaign was a joint effort, funded by both the King County Target Zero Task Forces and a grant from the Washington Traffic Safety Commission. Within King County, the following Police Departments participated in extra DUI patrols over the holidays: Algona, Auburn, Bellevue, Black Diamond, Burien, Covington, Clyde Hill, Des Moines, Federal Way, Issaquah, Kent, Kirkland, Maple Valley, Mercer Island, Newcastle, Normandy Park, North Bend, Pacific, Redmond, Renton, Sammamish, Seatac, Seattle, Snoqualmie, and Tukwila. In addition to the local Police Departments, the Washington State Patrol also participated in extra DUI emphasis patrols.

The winter campaign resulted in a total of 3,577 statewide DUI arrest. In King County alone, 876 drivers were stopped and arrested for a DUI within this roughly 38 day period.

This wasn’t the first time the Washington Safety Traffic Commission organized a DUI enforcement campaign. This past summer, from August 12 through September 6, 2010, the Drive Hammered, Get Nailed campaign was implemented as the largest ever summer DUI enforcement campaign. Over 178 police agencies participated in the campaign statewide.

Given the number of arrests made during the winter campaign and the existence of a previous summer Drive Hammered, Get Nailed campaign, it would not be surprising to find that state and local law enforcement may decide implement the campaign again during the summer months. Remember, these campaigns mean that even the casual, non-impaired drivers could be caught up in a DUI task force event when there is more pressure than usual to make DUI related arrests.

Who, Me? How Diabetes and Diet Restrictions Can Lead to a Wrongful DUI Accusation

In reality, police officers have very little training in detecting accurate levels of intoxication; there is no “inherent skill” to detect when someone is intoxicated. In fact, police officers are predisposed in a drunk driving investigation to "see" what they expect to see, disregarding any alternative explanations. Because of this, police officers have been known to mistakenly assume a driver is intoxicated, when in fact they suffer from diabetes or hypoglycemia.

How can diabetes and hypoglycemia affect field sobriety tests?

Diabetics experience hypoglycemia when their blood sugar levels are low. The symptoms of this condition include inability to balance, staggering, slurred speech, drowsiness, flushed face, disorientation, and impaired motor control. These symptoms are easy to confuse with that of a drunk driver. Since these symptoms are so similar to intoxication, a person experiencing them will most likely fail his/her field sobriety tests. This leads to diabetics experiencing hypoglycemia to be wrongfully arrested for drunk driving on countless occasions.

If an individual suffering from diabetes or hypoglycemia enters a state of ketoacidosis he/she may also exhibit what appear to be signs of intoxication. Ketoacidosis occurs when too many ketones are produced in the body. Similar to diabetes and hypoglycemia, the symptoms of ketoacidosis can appear similar to signs of alcohol or drug impairment. The symptoms include a flushed face, drowsiness, loss of energy, poor coordination, and stale breath which can be mistaken for the odor of an alcoholic beverage.

How can diabetes and hypoglycemia affect my BAC?

Breath tests are designed to measure Blood Alcohol Concentration (BAC) to show the amount of alcohol present in a person’s bloodstream. The BAC device uses infrared beams of light that are absorbed by chemical compounds in the breath. These tests look specifically for ethyl alcohol, which is found in alcoholic beverages.

Since these tests measure chemical compounds in the breath (and not actual alcohol) the machines are programmed to assume that chemical compounds similar to ethyl alcohol are probably the result of consuming alcohol. There are actually thousands of compounds that can register as the type of alcohol consumed from drinking an alcoholic beverage.

Isopropyl alcohol commonly registers as ethyl alcohol on a breath test. Ketones cause the body to create isopropyl alcohol. A diabetic who has developed ketoacidosis or has ketones on his/her breath may give a high BAC reading even if they have not been drinking. This is because the breath testing device mistakes the isopropyl alcohol produced by the ketones for the type of alcohol found in alcoholic beverages.

How can my low-carb diet affect my BAC?

There are also self-imposed diets, such as high-protien/low-carbohydrate diets, that can adversely affect a breath test. When people significantly reduce their carbohydrate intake, their bodies will look to stored fat for energy. This causes the body to produce ketones for energy.

Like diabetics, individuals on low-carb diets will have ketones on their breath. When ketones are in the breath, the isopropyl alcohol detected by a breath test shows up the same as ethyl alcohol (what is actually found in alcoholic beverages).

Further, if an individual on a low-carb diet were to actually consume even a small amount of alcohol, then the BAC would be falsely elevated even more simply because of the keteones that are naturally produced by the body.

What does this mean for my DUI defense?

Until police become more aware of how medical conditions and diet restrictions can mimic intoxication and driving impairment, innocent people will likely face wrongful DUI charges. Judges have ruled that low blood sugar may not be a defense against negligent driving. However, it is still imperative to tell a DUI defense attorney if any of these situations may explain your unjust drunk driving charges, as it could help grant a dismissal of a DUI charge.

References:
Lawrence Taylor "Drunk Driving Defense" 3d Edition.
"Hypoglycemia: Driving Under the Influence" in 8(1) Medical and Toxicological Information Review Sept. 2003.
Brick, "Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study", 9(1) Alcohol, Drugs and Driving (1993).