The Leyritz DUI manslaughter trial has convinced me that Florida law enforcement doesn’t have a clue about how to prevent drunk driving.
Sidebar: MADD (Mothers Against Drunk Driving) has done infinitely more to prevent drunk driving deaths than any cop or prosecutor in the world. Please visit the website and support their efforts.
Another Jury in the Dark
Over the past couple of weeks, a jury in Ft. Lauderdale, FL (famous for Easter Break binging), has heard only half the story of how a young woman died in a collision at an intersection in what the lawyers are euphemistically calling the “Entertainment District.” Apparently the only entertainment in Ft. Lauderdale is drinking.
The full story is that two drivers who had been drinking for several hours happened to reach the center of an intersection at exactly the same time. One of them obviously had a red light and the other obviously had a yellow light when they entered the intersection. Both drivers were over the speed limit at least slightly at the instant they collided. The driver wearing his seatbelt survived with a mild concussion. The driver without her seatbelt was thrown from her vehicle and died a grotesque, bloody death.
The survivor was arrested and held for several hours before the cops took a blood sample from him. Then an hour later they took a second blood sample from him, for reasons that have not been discussed before the courtroom cameras. He was then charged with DUI manslaughter. The victim’s blood was tested at the time of the autopsy. The blood-alcohol content levels (BAC) of both drivers were well over the legal limit of 0.08: the survivor’s BAC was discovered to be 0.14 and then 0.13 an hour later; the victim’s was 0.18 at the time she died.
What the Jury Heard
Through errors on the prosecution’s part, the fact that the victim of the crash as well as the survivor had been drinking came out in court. The jury also heard that the victim’s BAC was definitely 0.18 when she died (and that’s over twice the legal limit). The jury also heard that the defendant-survivor’s blood was drawn once three hours after the crash and that it tested at 0.14.
I believe any juror would assume that BAC levels go down and therefore the defendant’s BAC at the time of the crash had to be much, much higher than 0.14.
But It’s Less then Half the Story
But I now know that this is not true: BAC levels go up dramatically for a period of time after drinking. And both parties in the accident had taken drinks only a few minutes before the accident. And apparently the law that sets the legal BAC limit in FL at 0.08 applies only to the exact moment when the accident occurred.
So, any juror who assumes that a BAC sample drawn after an accident reveals the relevant BAC level (that is, the degree of inebriation) is mistaken. Experts in alcohol toxicity for both sides in the Leyritz case testified that the BAC level rises dramatically minute by minute and then falls slowly.
Not only that, but the cops in the Leyritz case completely bungled the DUI tests at every stage in the investigation:
- At the scene an “expert” in the Field Sobriety Test administered it to Leyritz without taking into consideration that he might have a concussion from the collision. He concluded that Leyritz was over the legal limit as a result.
- When Leyritz told the officer his lawyer had instructed him not to take the breathalyzer test, the officer then compelled him to submit to a blood test. But—duh—the paramedics at the scene were too busy trying to save the victim’s life to draw blood from Leyritz (this was at least 15 minutes after the collision—already too long after it to get an accurate reading, according to the experts).
- So, the officer took Leyritz to a police station (I believe it was) where he asked an EMT to draw the blood. The EMT apparently tried several times, but couldn’t “get a stick” in his arm. (Since I’ve had this happen to me, too, I know it’s very painful. Not a BAC test, though!) During this process, the EMT rubbed alcohol on Leyritz’ arm several times. (Yes, I know alcohol evaporates rapidly in the air, but a small amount enters the arm at the puncture point, and small amounts is what the test is all about.)
- Next, three hours after the collision, the officer took Leyritz to a hospital emergency room. According to the officer this was because he needed a nurse to draw the blood. According to the defense, it was because Leyritz was complaining of whiplash. After again wiping his arm with alcohol, the nurse was successful in drawing his blood using the cop’s supplied BAC test kit. She apparently “inverted” the test tube an inadequate number of times to mix the preservatives in the tube with the blood. This was the 0.14 BAC level.
- For some unspecified reason, the officer ordered a second blood test an hour later (during which the nurse again wiped his arm with alcohol). This was illegal, but he did it anyway. The judge threw it out of court. The jury never heard about it or they would have learned that four hours after the collision, his BAC was going down (0.13).
- However, the blood samples weren’t delivered to the toxicology lab for several more hours, and when they finally were dropped off, they were left in an unrefrigerated bin for several more hours before they were finally tested.
- Since the samples were taken using a kit that wasn’t approved for BAC testing (it had insufficient preservatives), there was a good chance that the blood began to deteriorate in the intervening hours. This deterioration process was literally a fermentation process in which microbes (not bacteria, although the prosecutor didn’t know there was a difference) break the blood down and produce ethanol alcohol as a byproduct. In other words, by delaying the tests the cops probably increased the BAC.
- The prosecution didn’t understand that the second blood sample was illegally obtained, because they had an expert witness extrapolate the defendant’s BAC at the time of the collision based on the decrease in the levels from the first to the second test. He calculated that the defendant’s BAC would have been 0.18.
- After the judge excluded the second sample, the expert recalculated the BAC using some sort of standard model (I believe I heard someone say it was developed in the 1930s!). This time he concluded the defendant’s BAC would have been 0.196. And this is what the jury heard.
- The defense expert, however, ran several models, all based on the first test’s result of 0.14. He took into account a wide range of factors that the prosecution expert completely ignored, including the defendant’s stomach contents, Body Mass Index, possible traumatic brain injury, etc. From his models he found that the defendant’s BAC at the time of the accident could have been as low as 0.04, was likely 0.07, but could have been 0.08 or slightly higher—but under no circumstances was it at all possible that the BAC was 0.196. And he explained why very clearly: the prosecution’s model assumed that all the drinks were consumed at one time, just minutes before the accident, producing an immediate spike in BAC and then that the BAC steadily declined for the next three hours.
Since it’s impossible for all these conclusions to be correct, what this trial tells me is that the state of the art of detecting blood-alcohol levels in accused drunk drivers is co
mpletely inadequate for justice to be administered based on blood tests. It wouldn’t matter if the cops had handled Leyritz’s blood tests properly: the experts would still disagree about the proper model for analysis.