Recent happenings (March, 2010) reveal some unusual defenses to DUI charges. First, there was the decision of the Court of Appeals in State of Washington vs. Richard Charles Tracer, No. 37812-4-II. This was a Washington State DUI/Vehicular Assault case where the Court of Appeals discussed the propriety of the legal procedure employed by the trial court in appointing a special prosecutor to handle the case when the “regular” prosecutor failed to appear for a hearing. The case involved a Vehicular Assault charge where the defendant’s vehicle collided head-on with another vehicle. The defendant’s blood alcohol was .13 according to court records. One way a misdemeanor DUI becomes a felony Vehicular Assault is where the DUI driver causes substantial bodily harm to another person. The defense challenged whether the injury was “caused” by the defendant. If the swerve of the defendant’s vehicle was due to something beyond the defendant’s control, he did not “cause” the substantial bodily harm to the other driver. Enter the meteor. Literally. As the court put it: “According to his defense attorney, on May 25, 2007, Richard Charles Tracer collided with another vehicle after the car he was driving was hit by a meteor. Tracer's counsel told the Jefferson County Superior Court that because it was the meteor and not Tracer's .13 blood alcohol level that caused the collision, the special deputy prosecutor appointed to handle the case had agreed to allow Tracer to plead guilty to driving while under the influence (DUI).” The published court record does not reveal whether there was physical evidence of a meteor striking the defendant’s vehicle or whether anyone saw the meteor enter the earth’s atmosphere, streaking towards the defendant’s vehicle to keep its date with destiny. However, according to some sources, the chances of a meteorite striking a human are such that it is expected to happen once every 186 years. A car presents a larger target but nonetheless, it might be a hundred years before the meteorite defense is seen again in a court of law.

One lesson from all this, that that “cosmic events” might well impact ordinary life, is reinforced by the recent Toyota Prius “unexplained acceleration” problems that we have heard so much about. It seems that some instances of unexplained acceleration remain unexplained. The company was unable to duplicate any aspect of the unexplained acceleration that a Los Angeles driver said occurred in his Prius in a widely publicized case recently. A few days after this incident, a news article entitled “Toyota mystery: Could cosmic rays be the culprit?” by reporter Justin Hyde was widely published. The article stated: “It may sound far-fetched, but federal regulators are studying whether sudden acceleration in Toyotas is linked to cosmic rays… Radiation from space long has affected airplanes and spacecraft, and is known for triggering errors in computer systems, but has received scant attention in the auto industry.” The article further states: “Electronics makers have known for decades about "single event upsets" (SEUs) — computer errors from radiation created when cosmic rays strike the atmosphere. Yet, the tipster last month told the National Highway Transportation Safety Administration (NHTSA) that "the automotive industry has yet to truly anticipate SEUs."

All of which brings us to breath testing in Washington State DUI cases. Washington State’s DUI breath test machine is computer controlled, as is the Prius control system. Washington States’ DUI breath test machine is, however, based upon 1980’s computer technology. Your author is familiar with a number of cases where the alcohol that was reported as being consumed does not add up to a breath test reading over the legal limit. Could cosmic rays be the culprit? We’ll never know. The issue has never been studied. Although the potential impact of cosmic rays upon breath testing might seem farfetched, the same was said about the defense assertions, later substantiated, that radio frequency interference (such as from an officer’s handheld radio) could impact breath test results. Today, every state of the art breath DUI breath testing machine is protected in one way or another from the impact of radio frequency interference but there is no shielding for cosmic rays.

Categories: DUI