Archive for October, 2004

The National College for DUI Defense

Tuesday, October 26th, 2004

Until a few years ago, attorneys attempting to defend a client against drunk driving charges were general practitioners who had little, if any, understanding of the nature of the offense. They were unfamiliar with such DUI investigatory methods as field sobriety tests, and there was an almost complete lack of seminars on how to defend these clients.

Most importantly, defense lawyers were completely ignorant about the complexities of blood alcohol analysis — whether of blood, breath or urine. How does this Breathalyzer work? What is infrared analysis? Gas chromatography? How is alcohol metabolized in the human body? What is "Widmark’s formula"? Hematocrit? What is "retrograde extrapolation" and how does it work? What physiological variables occur between individuals? What medical conditions can effect a breath reading and how? What happens if blood samples ferment or coagulate? Chemical analysis of blood, breath or urine involved knowledge of such highly technical fields as physiology, organic chemistry, physics, biophysics, electrical engineering — subjects far beyond the experience and training of lawyers.

Then a few years ago twelve of the most prominent DUI defense attorneys in the country met in a hotel conference room at Chicago’s O’Hare Airport. Over the following three days they hammered out plans for a new professional organization: "The National College for DUI Defense". They created this as a non-profit organization dedicated to improving the quality of the DUI Bar, primarily through providing educational seminars.

An important secondary purpose of the organization was to address the problem of insularity in the profession — the isolation of lawyers; the College would be a tool with which attorneys across the country could share information, ideas and experiences. I am proud to say that I was one of those twelve original founders, and have since served as Dean and on its Board of Regents. For each of us, the College was a true labor of love.

The first national seminar was held at Harvard Law School. It was an intense 3-day series of lectures, demonstrations and workshops, featuring a faculty of 22 of the top lawyers, scientists and forensic toxicologists in the field. The experiment was a huge success, and has been repeated every July at Harvard for the past ten years. In fact, the College’s governing Board of Regents soon expanded this educational effort by creating a second annual 3-day seminar in the winter. This proved another resounding success: in the recent session held in Las Vegas in October, 2004, there were over 500 lawyers attending from all over the country.

The National College for DUI Defense also created an internet website, along with an email discussion group where attorneys could share information and ideas. There are currently hundreds of members across the country using this forum — and discovering that what one lawyer in Texas has found effective in dealing with DUI sobriety checkpoints can be helpful to another in Oregon.

Having provided the means to develop greater skills in this demanding field, the College next addressed the need to recognize those lawyers who had achieved the highest levels of competence. Within recent years, they began certifying attorneys as specialists in DUI defense. In order to be Board-certified, an applicant must satisfy demanding requirements of practice and trial experience, as well as pass intensive written and oral examinations.

Most recently, the College has been successful in applying to the American Bar Association for recognition of a new legal specialty: DUI defense. After considerable study, the ABA went further and recognized the National College for DUI Defense as the sole organization authorized to certify attorneys as specialists in this new field. The College maintains its headquarters in Montgomery, Alabama, and currently has a membership of over 600 attorneys.

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Drunk Driving and Double Jeopardy

Monday, October 25th, 2004

When a person is arrested for DUI, his driver’s license is confiscated by the arresting officer and he is given a notice of "administrative suspension". He is also given a citation to appear in court to face criminal drunk driving charges.

These are usually two very different procedures: (1) the administrative suspension for driving with blood-alcohol of .08%, in most states administered by its department of motor vehicles, and (2) the criminal prosecution for the two separate offenses of driving under the influence of alcohol (DUI) and driving with .08%, which takes place in the courts.

In other words, even though he only drove once, the individual is being prosecuted for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses (although he can only be punished for one). How is this possible?

It gets worse….

The driver has already been punished for driving over .08% by having his license suspended by the state’s motor vehicle agency. If he is later convicted in the state’s criminal court of driving over .08% (and/or driving under the influence), he will be punished again. The sentence may involve jail, fines, DUI schools, probation — and a restricted, suspended or revoked license.

How many times can the state punish a person for a single crime? Our Constitution says only once. The Fifth Amendment specifically provides that no person shall "be subject for the same offense to be twice put in jeopardy of life and limb". So is this another example of "the DUI exception to the Constitution"?

Let’s first take the question of charging defendants with both DUI and .08%. The courts in the different states wrestled with this one for awhile, but eventually came to the conclusion that the driver actually commited two different crimes. As an Indiana court reasoned, "the test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of a fact which the other does not." Sering v. State, 488 N.E.2d 369 (1986).

The .08 statute required proof of blood-alcohol concentration; although blood-alcohol evidence was used to prove the DUI crime as well (a person is presumed to be under the influence if his BAC is .08% or higher), the offense could be proved without it. So it’s ok to prosecute and convict him for both crimes – so long as you don’t punish him for both.

Hmm… Well, what about punishing the driver by suspending his license when he’s arrested — and then punishing him again in court? In fact, punishing him in court with a sentence that may include another suspension? This one caused the courts a bit more trouble. This wasn’t a case where the person was committing two different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC. But there had to be some way to get around the Constitution….

The courts could not agree. Some said that there was no double jeopardy since the DMV license foreiture was not really a "punishment" but only a "civil sanction". Others took the position that this was, in fact, a violation of the Fifth Amendment, and they relied upon a U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435; 1989) which involved civil forfeitures and criminal punishments for selling marijuana. In that case the Court held that a "civil sanction" was actually a punishment — and thus double jeopardy — if (1) the "clear focus of (the statute) is on the culpability of the individual", and (2) the legislature "understood these provisions as serving to deter and punish". The Court added that "the historical understanding of forfeiture as punishment" weighs heavily in favor of the conclusion that forfeiture continues to serve punitive purposes.

Well, relying upon the Supreme Court’s ruling, an alarming number of courts around the country were throwing out criminal DUI charges on double jeopardy grounds. This, of course, infuriated MADD, legislators, prosecutors, law enforcement and pretty much everyone else who did not take the Constitution too seriously. But rescue arrived from a more conservative U.S. Supreme Court. In 1997, Chief Justice Rehnquist revisited the forfeiture-punishment problem and did something that is rarely ever done: he criticized and flatly rejected the earlier Supreme Court’s ruling:

"We believe that Halper’s deviation from longstanding double jeopardy principles was ill-considered….Halper’s test for determining whether a particular sanction is "punitive", and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable". Hudson v. U.S., 592 U.S. 93 (1997).

Since then, the courts have had little trouble finding that a police officer who confiscates and suspends the driver’s license of a drunk driving suspect is merely administering a "civil sanction", not punishment….and that when he is later convicted in court and is fined, jailed and has his license suspended again, well that’s not really double jeopardy. It just looks an awful lot like it.

As the Red Queen in "Alice in Wonderland" said, "A word means exactly what I say it means".

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The Police Officer as DUI “Expert”

Sunday, October 24th, 2004

The drunk driving case rests heavily upon the subjective opinions of the arresting officer — the abilities of that officer to correctly assess DUI symptoms of intoxication: observations of driving, personal symptoms (slurred speech, flushed face, etc.), answers to questions, performance on field sobriety tests. It is his DUI report (and his opinion in that report) which will largely determine what, if any, criminal charges will be filed by the prosecutor; his decision which will or will not result in a suspension of the driver’s license; his testimony at trial which will largely decide the guilt or innocence of the person he arrests.Just how expert is the average police officer at judging levels of intoxication in a DUI case?

To answer this question, researchers at Rutger University’s Alcohol Behavior Research Laboratory conducted a series of experiments. For purposes of comparison with officers, two groups of non-police witnesses were first tested. In one, 49 lay social drinkers sat in a room as various subjects were brought in one at a time for observation and questioning. Each subject had either consumed varying amounts of alcohol or had consumed nothing; each had been given tests for blood-alcohol levels. Each in turn answered questions from the lay witnesses until all were finished, then got up and left. Each of the 49 witnesses was then asked to judge each subject’s state of sobriety or intoxication. The researchers’ conclusion: "The assumption that social drinkers would prove to be accurate judges…was not confirmed."

In the second group, 12 bartenders were tested in the setting of a large cocktail lounge. Again, the researchers found that "the bartenders correctly rated a target in only one of four instances".

The researchers then turned to 30 experienced DUI officers from various New Jersey law enforcement agencies. Separated into two groups, the first group of 15 officers were tested under laboratory conditions similar to those in the experiment involving lay social drinkers. The second group of 15 were tested under circumstances commonly encountered in a drunk driving traffic stop — at night, with the subject behind the wheel of a car, who is then asked to step out and conduct a series of DUI field sobriety tests.

Results? "When police observers in the laboratory conditions were compared to social drinkers who had experienced an identical procedure, no difference in rating accuracy was found…. Officers in the arrest analogue were somewhat more accurate than their colleagues in the laboratory condition but not significantly so."

The scientists concluded that "the results of the three experiments described here are not reassuring. All three of the subject groups studied — social drinkers, bartenders and police officers — correctly judged targets’ levels of intoxication only 25 percent of the time." Langenbrucher and Nathan, "Psychology, Public Policy and the Evidence for Alcohol Intoxication", American Psychologist 1070 (Sept. 1983).

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A Closer Look at DUI Fatality Statistics

Saturday, October 23rd, 2004

For years now the "DUI crackdown", along with the accompanying loss of constitutional rights, has been justified by the numbers of deaths on the highways caused by drunk drivers. As the U.S. Supreme Court in Michigan v. Sitz said, for example, DUI "sobriety checkpoints" appear to violate our Fourth Amendment right to be free of suspicionless stops by the police — but this illegal intrusion on our privacy is "outweighed" by the "carnage" on our highways of 25,000 deaths caused each year by alcohol.

From where did these statistics come? Years ago, the statistics kept on traffic fatalities included a category for "alcohol-caused" deaths. To justify such things as sobriety checkpoints, lowered blood alcohol levels and automatic at-the-scene DUI license suspensions, however, these statistics were subtly changed to "alcohol-related". Not "caused", but related.

This meant that a perfectly sober driver who hit and killed an intoxicated pedestrian, for example, would be involved in an "alcohol-related" incident. Similarly, a sober driver who is struck by another sober driver carrying an intoxicated passenger chalked up another "alcohol-related" death. Further, if the officer believes the driver to be intoxicated but chemical tests show he is not, the death is nevertheless reported as "alcohol-related". In fact, if the tests indicate the presence of any alcohol at all, say .02%, the fatality will be chalked up as "alcohol-related".

In 1999, the federal General Accounting Office (GAO) reviewed these figures from the National Highway Traffic Safety Administration — and issued a report stating that they "raised methodological concerns calling their conclusions into question ". The statistics, the GAO report said, "fall short of providing conclusive evidence that .08% BAC laws were, by themselves, responsible for reductions in alcohol related fatalities." In other words, the statistics weren't even valid when applied to alcohol-related fatalities, much less alcohol-caused deaths.

So what are the real numbers? The Los Angeles Times also decided to investigate the validity of these statistics. In 2002, NHTSA's figures claimed 18,000 deaths on the nation's highways attributable to drunk driving. The Times found that only about 5,000 of these involved a drunk driver causing the death of a sober driver, passenger or pedestrian. (Research by other groups, such as "Responsibility in DUI Laws, Inc.", indicate the figure is actually under 3,000.) 5,000. A fraction of the number being used by the government and political pressure groups like MADD.

Despite this irritating little truth, MADD, law enforcement and federal and state governments continue to use the same false statistics to justify the passage of unfair and unconstitutional DUI laws.

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Due Process and Automatic DUI License Suspensions

Friday, October 22nd, 2004

So you got stopped last night and arrested for drunk driving. And right after the Breathalyzer showed a blood-alcohol reading of .12%, the officer confiscated your driver’s license and gave you a a piece of paper that said it was immediately suspended.

What happened?, you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about "due process": Can they suspend my license for DUI before giving me a chance to defend myself?

Good questions.

The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) DUI who (1) has a .08% breath reading, or (2) takes a blood or urine test (which will be analyzed later), or (3) refuses to take any test. This means immediately — on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you.

Viewed another way, the officer in a DUI case is constable, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it!

So, again: How can they do that in America?

Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called "APS" laws (the phrase stands for "administrative per se", referring to the "per se" crime of .08%, as opposed to the crime of driving under the influence of alcohol, which is for the courts). They justified this by saying that a license was a "privilege", not a "right" — and since the license holder had no rights, the state could do what it wanted.

Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.

The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.)

MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced states into adopting APS suspensions — or else no funds.  Do these APS hearings in DUI cases provide due process? In other words, how fair are they?

Let’s take California’s APS hearings. They are conducted by a "hearing officer". Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate. So who is the prosecutor? He’s, well, the same guy.

That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can object to the driver’s evidence — and then sustain his own objection! Not too surprisingly, the DMV wins about 95% of these DUI hearings.

That’s called "due process" in a drunk driving case.

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