Well, This Is Ironic
Courts are supposed to be places where you tell the truth. Judges are supposed to be people to whom you tell the truth.
But what happens when the truth is something you have good reason to predict that the judge will not believe?
Irony and an ethical dilemma, that’s what.
Take this example. A man is placed on probation for driving while intoxicated. One of the terms and conditions of his probation is that he use an ignition interlock device.
When he was given instructions on how to use the ignition interlock device, the man was told not to use mouthwash that contained alcohol, to stay away from alcohol-based hand sanitizers, and to basically throw all of his alcohol-based products in the trash. That way, there would not be any risk of having a positive breath specimen when he had not been drinking.
But the client messes up. No, I don’t mean he went out and drank alcohol. What I mean is that he had some tooth pain and used Anbesol, the active ingredient of which is benzocaine, but which contains benzyl alcohol.
And then he blew into the ignition interlock device, which registered a positive breath specimen.
Then his probation officer gets a report from the IID vendor showing a positive breath specimen and has a little “chat” with the man.
“Just admit it, you drank.”
“But I didn’t.”
“Then how do you explain this positive breath specimen?”
“I think it could’ve been the Anbesol I’ve been using.”
“Fine, don’t admit it. I’ll just move to revoke your probation and let the court deal with you.”
The probation officer assumes that the machine is always accurate and that the probationer is always lying, unless he or she is admitting to having consumed alcohol.
But what if the probationer was telling the truth?
Then he is in the uncomfortable position of being more likely to avoid revocation of his probation by lying and saying he did something that he did not do.
It is a good thing that probationers who have these conversations at the bench with judges are not sworn in, because then they would be committing a third-degree felony (perjury) to avoid revocation of a misdemeanor probation.
In fairness to the judges, they have heard every excuse under the sun for why a breath specimen turned up positive, but the probationer had not really been drinking. And judges are not mind readers. They cannot tell which probationers are telling the truth and which ones are lying. So they have to go with a source of information that they think is reliable.
The source of information that they choose is the ignition interlock device, which of course is not human and has no agenda for whether the person who blows into it should have his or her probation revoked.
But just not having an agenda does not necessarily make the ignition interlock device accurate.
Because the scientific evidence is that the fuel cell technology in an ignition interlock device can easily mistake other substances for ethanol. A.W. Jones, Ph.D., D.Sc. and L. Andersson, B.Sc., Biotransformation of Acetone to Isopropanol Observed in a Motorist Involved in a Sobriety Check.
The ethical dilemma for the lawyer of the probationer is obvious. You have to counsel your client to tell the truth. But you also have to advise your client of the likelihood that the judge will believe what he says. You have to be very careful about wording your advice so that your client doesn’t think you’re telling him to lie to the judge.
This is the ethical minefield in which we walk when the system always believes a machine.