Researchers at the Military University of Technology in Poland are claiming that a laser device can measure alcohol vapor levels in a moving vehicle
. They are proposing a system where they can deploy the device along a highway and, if alcohol is detected from within the vehicle, a message will be sent to a police car stationed some distance ahead. The police would then pull the vehicle over and investigate the driver on suspicion of DUI regardless of whether there was any actual evidence of a crime being committed.
There are all kinds of problems with this plan. First, the researchers admit that driving with either the air conditioner on OR the windows down will affect the reliability of the data. I’m not aware of many people who don’t do one or the other. Second, even if alcohol is correctly detected in the vehicle, there is no mechanism to discern which occupant of the vehicle MIGHT have consumed some alcohol much less be under the influence of alcohol. Organizations from Mothers Against Drunk Driving to the Colorado State Patrol to the Colorado Department of Transportation all recommend a designated sober driver to prevent being charged with DUI. Finally, from a legal perspective, this technology must overcome a great deal of legal scrutiny before it could ever be admissible in a DUI trial.
Where “scientific” evidence is concerned, courts must perform a gatekeeper function to ensure that before evidence is presented to a jury, the court must first assess (1) the reliability of the scientific principles at issue; (2) the qualifications of the witness; and (3) the usefulness of the testimony to the jury. The Colorado Supreme Court further imposed a requirement on trial courts to conduct an analysis under CRE 403 to determine whether the probative value of the expert testimony is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or the risk of misleading the jury. People v. Shreck, 22 P.3d 68 (Colo. 2001), and Colorado Rules of Evidence 702 and 403
, the Court decided not to specify which exact factors a trial court must use in determining the admissibility of proffered scientific evidence. The Court did identify several potential factors for analysis concerning the science or technique in question:
- whether the technique can be tested;
- whether the technique has been tested;
- whether the theory or technique has been subjected to peer review and publication;
- the known or potential error rate for the technique;
- the existence and maintenance of standards controlling the technique’s operation;
- whether the technique has been generally accepted in the scientific community;
- the relationship of the proffered technique to more established modes of scientific analysis;
- the existence of specialized literature dealing with the technique;
- the non-judicial uses to which the technique are put;
- the frequency and type of error generated by the technique.
To be clear, no such technology has been deployed in Denver at this time. If it should happen, I’m quite sure that attorneys like me will be lined up to challenge it in court.