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The “Oopsie” Phenomenon and Other Problems with Urine Tests

Jamison KoehlerDUI and Driving Offenses

With the use of breath test machines temporarily suspended in D.C. because of calibration and accuracy problems, people arrested under suspicion of drinking and driving are currently being administered urine tests. Generally considered even less reliable than the breath test as a surrogate measure for blood alcohol concentration, urine tests present at least four different problems for the government.

First, at $75 a pop (as opposed to less than $10 a test for the breath machine), they are more expensive. With the D.C. police testing about 123 suspected drunk drivers a month, this will add almost $100,000 a year to the cost of D.C.’s DWI prosecutions.

Second, the urine test is both distasteful to the police officer and cumbersome to administer. In order to afford any degree of reliability, the subject must void his bladder prior to the test. The officer then needs to wait a period of time until the subject can produce a sample. The officer must also add a preservative to the sample – such as sodium fluoride or mercuric chloride — to prevent decomposition prior to laboratory testing.

Third, urine tests are subject to many of the same problems that afflict breath tests. For example, just as there as problems with the presumed blood-to-alveolar air ratio used in breath tests, there are questions with the assumption used in urine tests that the concentration of alcohol in the urine at the time of secretion is 1.33 times greater than the concentration in the blood. In fact, the ratio in any individual can vary from as little as 0.8 to one to as much as 2.0 to one.

Finally, because urine test results are not available at the time the police officer writes his/her report, they can sometimes result in what I call the “oopsie” phenomenon during the police officer’s testimony in court.

This is how the phenomenon works: A police officer pulls someone over under suspicion of drinking-and-driving. Usually it is because the person has just committed some traffic violation or is driving erratically. While the officer is justified in making this stop for Fourth Amendment purposes, the officer needs additional indications of intoxication in order to continue the investigation (for example, through the administration of field sobriety tests). Otherwise, the officer is constitutionally compelled to write the driver a traffic ticket and send him/her on his way.

Because the smell of alcohol on the suspect’s person or breath provides one such justification, it tends to work its way into a lot of police officer reports summarizing the investigation. It is particularly easy to do so when the officer is writing his report back at the station AFTER s/he has seen the result of a breath test, which again is available immediately. This is a natural thing to do: the breath test confirms the presence of alcohol in the suspect’s system and the officer, knowing that he may well be challenged on the constitutional basis for extending the investigation, thinks, yeah, that’s right, I also smelled it on the suspect’s person or breath. The only question for the officer in this circumstance is whether the odor was slight, moderate or strong.

But what happens when the urine test – with results available only much later — reveals that there was no alcohol in the suspect’s system? If there is nothing at all in the person’s system, the driving while intoxicated (DWI) charges are presumably dropped and the person never ends up in court. If, however, the urine test reveals that the cause of the apparent intoxication was drugs and not alcohol, the case still ends up in court with the person charged with driving under the influence as opposed to DWI. But the officer now has some serious explaining to do when it comes to his report.

This can make for some interesting courtroom testimony, sometimes during trial but more often during a motion to suppress. Most officers will conveniently omit this portion of their report when testifying and it is the defense lawyer who ends up eliciting this little tidbit. This is often to the surprise of the finder-of-fact and other people in the courtroom, who have no idea why the officer suddenly has that “deer-in-the-headlights” look that criminal defense lawyers love so much. Because, after all, they may not know yet what the urine test revealed. How can it possibly be in the defendant’s interest to bring out the fact that the defendant had a strong odor of alcohol on his breath when he was pulled over? And why is the defense counsel making such a big deal about it?

Oh, stop making that face. I am not saying that all — or even most — police officers fabricate police reports or lie on the witness stand. What I am saying is that some officers, firmly believing that the people they arrested are guilty of a crime and having seen many of their cases thrown out on “technicalities” (oh that annoying Constitution), sometimes feel compelled to give the prosecution a little help. The wisest course for police officers — always – would be to simply testify to what they truly did and observed and to leave it to the prosecutors to worry about everything else. As my grandmother used to say, sometimes you can be too clever by half.