CBS Boston

Drunk Driving Technology Threatens Personal Liberty

January 27, 2011

As a Massachusetts criminal defense attorney specializing in drunk driving defense, I am well-aware of the need for strong enforcement of our OUI laws. Melanie’s Law was a monumental step in tightening the laws for repeat offenders, and I generally agree with most of what was passed within that legislation.

I recently read a Boston Globe article, and then watched a similar segment on “World News Tonight”, on new technology that will be able to detect alcohol on the operator’s breath, or even on his or her skin. The concept of this technology would be remarkable. It would, in effect, operate the same way as the interlock ignition device that repeat drunk driving offenders are now required to install in their vehicles, but it would avoid the blatant “breath test” that may cause inconvenience and embarrassment.

While the concept is well-intentioned, its implementation would be a nightmare.

Consider this: You are a bartender in the city. You just finished up an 8-hour shift. It’s 3:30 in the morning. All you can think about is getting in your car, driving home, and finally going to sleep. You unlock your car door, get in the driver’s seat, and put your keys in the ignition. The car will not start. The new “breath-sensing” technology detects the smell of alcohol, even though you have not consumed a single drink. The “touch sensor” detects the same coming from your skin. You are now stuck in your parked car, on the side of the road, at 3:30 am in the city. All of your friends are either sleeping or in no condition to come pick you up. There are no taxis driving by your car at this time. You are stranded.

A person who is asked to take a breathalyzer at the police station has already been arrested after an initial screening by a police officer. This officer already has some suspicion that the person has been operating under the influence of alcohol. In the example above, there is no screening. The device cannot make observations of your speech, movements, skin coloration, response to stimuli, or any of the other cues that an officer is trained to detect in making a totality-of-the-circumstances judgment on your sobriety. Above, the “analysis” of your sobriety is made by an automated device based on only one cue of impairment, without the benefit of a common-sense evaluation. If that single cue suggests “intoxication,” then you are stranded on the side of the road at 3:30 am, totally innocent of any wrongdoing.

The potential for erroneous readings, and the consequences of false-positive readings is too great. As a Massachusetts drunk driving defense attorney, and former drunk driving prosecutor, I am well-aware that our current breathalyzer machines, even when administered by certified, experienced police officers, very often produce false readings. If one variable is off, the whole test is compromised, which is why prosecutors have to jump through a series of hoops before a judge will admit the test results at trial. If the judge determines that the test was compromised in the slightest, he will exclude the results from evidence.

Fortunately, at an OUI trial, we have experienced lawyers and a judge to make sure that the breathalyzer test results are valid. We do not deprive a person of his liberty without “proof beyond a reasonable doubt.” This new device will, undoubtedly, deprive people of their civil liberties. First, it assumes that otherwise law-abiding people are intoxicated when they get into the driver’s seat, and they must prove their innocence before they can continue with their affairs. I am not about to indulge in the Constitutional violations associated with such a process- I will leave that to the civil rights attorneys. But when an innocent person registers a false-positive “intoxication” reading, he is unjustly deprived of his liberty and freedom of movement. While many activists may favor this new technology for its promise of being the most significant advance to date in the anti-drunk driving movement, I am confident that a full examination of its consequences on our everyday life will lead the public to oppose it.

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