In the ever-changing face of technology within the legal system, the most valuable commodity is our privacy and our reputation.[1] Recent innovations in technology threaten to change the face of data, and more importantly, how it is collected.

The fact that basic constitutional rights are being tested left and right is nothing new; in recent years, issues over “red light cameras” have become the center of many debates. The main reason for this is because they violate the underpinning of criminal law in that the prosecution must prove that the offender charged was beyond a reasonable doubt the person that is guilty of committing the offense. A brief list of criminal cases that involve technology includes:[2

• Alcohol monitoring devices connected to an offender’s telephone.
• Drug testing of blood, hair follicle, skin patch, and urine.
• Ignition interlock device used to prevent the driver from using their vehicle if they have alcohol in their system.
• Textalyzer detects if the driver was texting at the time of the accident.

Most advances in the technology sphere focus on facial recognition, how it will be used on social media, and later, DUI laws.[3] However, in the unending quest on the pursuit of perfecting road safety, drivers may soon find themselves confronted with a whole new breed of technology geared towards not only deterring, but also identifying distracted drivers.[4]

This article collects recent DUI court cases and notable articles on DUI law, and the subsequent effect technology had on both.

DUI Court Cases

James Kolby-Ralph Lund, Jr. v. Commissioner of Public Safety (2009)

“Appellant James Kolby-Ralph Lund, Jr. was arrested for driving while impaired. He submitted to an Intoxilyzer 5000EN (Intoxilyzer) test that reported an alcohol concentration of .15. Lund’s driver’s license was revoked under the implied-consent law then in effect, Minn. Stat. § 169A.52, subd. 4(a) (2006). Lund petitioned for judicial review of his license revocation under Minn. Stat. § 169A.53, subd. 2(a) (2006).”

State of Nebraska v. Stephen C. Kuhl 741 N.W.2d 701 (2007)

“Stephen C. Kuhl was convicted in the county court for Douglas County of speeding and driving under the influence (DUI). Kuhl appealed his convictions to the district court, which affirmed the “judgment of conviction and sentence” entered by the county court. Because we find that the county court’s decisions conform to the law, are supported by competent evidence, and are neither arbitrary, capricious, nor unreasonable, we affirm the district court’s affirmance of Kuhl’s “judgment of conviction and sentence.”

United States of America v. Lora A. French (2010)

“Defendant Lora French is charged in Count One with operating a motor vehicle under the influence of alcohol in violation of 36 C.F.R. §4.23(a)(1) and in Count Two with operating a motor vehicle with a blood alcohol content of 0.08 grams or higher in violation of 36 C.F.R. §4.23(a)(2). She is also charged in Count Three with failure to obey a traffic control device in violation of 36 C.F.R. §4.12. Ms. French made her initial court appearance in this case on February 10, 2009 at which time she pled not guilty and trial was set for July 1, 2009. Minutes of Proceedings (#7). The trial was continued on several occasions by stipulation of the parties and on one occasion by the court.”

Scholarly Articles

Delays in DUI Blood Testing: Impact on Cannabis DUI Assessments, Taylor Francis Online, Feb. 25 2015. “This study examined the time from law enforcement dispatch to the first blood draw in cases of driving under the influence (DUI) vehicular homicide and a subset of DUI vehicular assault cases in Colorado in 2012. Laboratory toxicology results were also examined to understand the implications of delays in blood draws in cases of driving while under the influence of marijuana’s delta-9-tetrahydrocannabinol (THC).”

Discovery of Breathalyzer Source Code in DUI Prosecutions, Washington Journal of Law, Technology & Art, Aug. 31 2017. “In driving under the influence (DUI) cases, prosecutors habitually rely on the results from breathalyzer tests as proof of the defendant’s blood alcohol level at the time of arrest. In response, DUI defendants often attempt to compel discovery of the source code contained in the test device, which can reveal whether the breath test at issue was performed accurately. Despite the popularity of this strategy, nearly all states to consider the issue have denied the defendant’s motion for discovery of breathalyzer source code. The majority of courts construe state and federal rules of criminal procedure to limit discovery orders to information within the “possession, custody or control” of the prosecution and summarily hold that breathalyzer source code is not in the State’s possession or control. Absent a contractual agreement granting the State proprietary rights to the code, the courts have failed to articulate a clear definition of what it means to be in possession, custody, or control of breathalyzer source code. This Article explores the classification of breathalyzer source code, the discovery rules surrounding its disclosure, and the implications of its protected legal status.”

[1] See Ken Strutin, Big Data, Little Privacy: Tracking the Usual Suspects, LLRX.com, July 21 2013.

[2] See Judge Stephen Halsey, Technology and your basic rights, The Post Review, Aug. 21 2017. (“It is often argued that a new technology will reduce crime or increase conviction rates and is, therefore, justified and not a violation of anyone’s constitutional rights or privacy. Your courts remain vigilant in protecting the constitutional rights of all citizens in criminal cases as these are rights afforded to all of us as American citizens. These rights cannot and should not be abridged in the name of expediency or cost-saving.”)

[3] See Chris Reed, The facial-recognition arms race: Is Jason Bourne technology near?, The San Diego Tribune, Aug. 21 2017. (“Are there also algorithms that can determine if someone is intoxicated and pitch her or him products or services that wasted people are most likely to impulse buy online (surveys show buzzed women are into shoes and clothes, while buzzed men prefer wagering and cigarettes)? It seems probable. How long until these algorithms are so prescient that authorities consider anti-BUI (buying under the influence) laws to go along with anti-DUI laws?”)

[4] See Tamara Kurtzman, Textalyzer Technology Faces Privacy Roadblocks, Law 360, August 7 2017. (The manufacturer of the “textalyzer,” Cellebrite Inc., a global forensics technology firm, claims that the technology would not allow police to have access to the underlying content of messages, only to information regarding the timing of them, it should not be lost on anyone that Cellebrite is the same company that has assisted government agencies in unlocking cellphones in the past and touts its 15,000 law enforcement and military customers that use Cellebrite technology to gain “deep insight from devices.”)