Archive for February, 2005

DUI SuperCops

Thursday, February 17th, 2005

The promotions and accolades heaped on officers by groups like MADD for maintaining high DUI "body counts" has created a growing phenomenon: the over-zealous "SuperCop". As an example, consider the following news story about one of these SuperCops — and one of his victims who is currently suing him in federal court:

To the Palm Beach County chapters of the Traffic Safety Council and Mothers Against Drunk Driving, North Palm Beach police officer Salvatore Mattino is a crackerjack cop. So much so that they've given him awards for the prolific number of drunken driving arrests he has made."I'm always arresting people, you know, I just can't be… you know, chilled," Mattino told a superior officer 11 months ago, according to an internal affairs report.

 That attitude troubles some of Mattino's fellow officers, not to mention the motorists ' a good number of them never prosecuted ' whom he has busted. Indeed, during one of Mattino's DUI arrests 13 months ago, a fellow North Palm Beach police officer had a heated argument with him over what he said was a bogus DUI bust, and threatened to arrest Mattino if he went through with it. Mattino made the arrest anyway. A few days later, according to the report, a sergeant in the department asked Mattino about the incident, explaining, "I'm tired of officers complaining about you and your DUI arrests."

Now Mattino's ardent pursuit of drunken drivers has put him and the village of North Palm Beach on the receiving end of a federal lawsuit filed in December, claiming that the village and the officer have systematically made bad DUI arrests and maliciously prosecuted them.

The citizen bringing the federal action, Elliot Schecter, was pulled over by Mattino for speeding:

Mattino asked Schecter, 35, to submit to a series of roadside sobriety tests, which Mattino said he performed badly. Schecter was then arrested and taken to the Palm Beach County Jail. Once there, he agreed to a breath test. The result: 0.00 ' no sign of alcohol. That might have ended Schecter's long night, except Mattino then asked him to give a urine sample. He eventually tested negative for drugs. The state attorney's office later dropped the case…..

Schecter wasn't the only legally sober motorist to be given a roadside sobriety test by Mattino, then taken to jail, only to pass the breath and urine tests. (Attorney Val) Rodriguez says he's found at least 10 others out of 71 DUI arrests by Mattino between November 2001 and May 2004, including five drivers he jailed who blew a 0.00 on the breath test….

"Sal Mattino's car stops were very questionable," said Ira Peskowitz, a former colleague who now works as a Palm Beach County sheriff's deputy. "He's a good person. But just because you're a good person doesn't make you a good tactical police officer."

In August, Peskowitz sued North Palm Beach, the village's former police chief and a captain in the department. In his suit, Peskowitz complained about the propriety of some of Mattino's arrests. He also alleged improper actions by other officers and contended the department retaliated by suspending him and in effect forcing him to resign last year. The case is pending.

Be assured, North Palm Beach is not the only place where "body counts", quotas and MADD awards encourage questionable or blatantly false DUI arrests. (Thanks to William C. Head of Atlanta.)

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Maine MADDness

Wednesday, February 16th, 2005

From the Bangor (Maine) Daily News, the latest thinking in the continuing "War on Drunk Driving":

AUGUSTA: In hopes of reducing death and injury from drunken driving in Maine, legislators are considering confiscating the hunting and fishing licenses of those convicted of operating a motor vehicle under the influence of alcohol or drugs. The proposed bill, LD 82, would suspend hunting and fishing licenses concurrent with a driver’s license revocation as a result of OUI. Repeat offenders with three drunken driving convictions would face a lifetime ban on hunting and fishing in Maine.

Confiscation of dog tags, construction permits and marriage licenses is on the drawing board. (With thanks to attorney Wayne R. Foote of Bangor).

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Another Prosecutor Gets Special Treatment

Tuesday, February 15th, 2005

I’ve posted a number of comments recently about the favored treatment received by police, prosecutors and judges when arrested for DUI — usually, a quiet dismissal of charges. When publicity sometimes precludes this option, the individual may have to answer the charges. But go to jail? Never. Consider a recent story about a Tampa, Florida, prosecutor who was charged with DUI as a felony:

Pinellas DUI prosecutor pleads to own drunk driving charge

TAMPA, Fla. Associated Press A Pinellas County prosecutor known for being tough on drunk drivers will serve probation and lecture school children on the dangers of drinking and driving to settle her own DUI case.

Lydia Dempsey Wardell was arrested in November after she drove the wrong way on a street and was involved in a minor accident. Her two young sons were in the car with her, and police measured her blood alcohol at nearly three times the legal limit for drunk driving.Wardell was sentenced Wednesday after a plea agreement which reduced the drunk driving and culpable negligence charges against her to misdemeanors.

Wardell will serve 18 months probation, and complete other tasks such as spending time on a sheriff’s road crew picking up trash and at least 10 hours of speaking to children. Officials said her punishment is similar to those imposed on other first-time DUI offenders….

"Similar to those imposed on other first-time DUI offenders"? Are they serious? Here we have a person arrested for drunk driving with two children in the car, after an accident, and with a blood-alcohol of about .23% (incidentally, a common indicator of an alcoholic). In most states, an accident will usually increase the jail sentence; a sky-high breath test nearly triple the legal limit definitely will; and exposing kids to all of this is called "child endangerment" and may result in felony charges, as apparently happened here — punishable by state prison. All-in-all, this person gets a very long stretch in jail.

Ms. Wardell, with her reputation for "being tough on drunk drivers", had the felony reduced to a misdemeanor and was only asked to pick up some trash and talk to kids for a few hours. That is known in the trade as a "Santa Claus deal". But then these are reserved for police, prosecutors and judges — those, that is, who are unlucky enough to be arrested by an honest cop in the first place.

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Drunk on Listerine Mouthwash

Sunday, February 13th, 2005

Some time ago in a post entitled "Breath Fresheners and Breathalyzers" I commented that one of many problems with breathalyzers was that they cannot distinguish alcohol coming from the blood by way of the lungs from alcohol in the mouth or throat. As a result, any use of breath fresheners or mouthwash will cause falsely high readings on the machines:

One common source of breath alcohol is breath spray, as well as mouthwash — both of which contain significant amounts of alcohol. Listerine, for example, contains 27% alcohol, Scope 19% and Astring-O-Sol 76%. Even a tiny amount of this on the breath or in the throat, if multiplied by the machine 2100 times, can result in high breathalyzer readings.

I failed to consider the possibility of a Listerine cocktail. For those doubting the strength of mouthwash, consider the following story from CNN:

ADRIAN, Michigan (AP) — A woman arrested after failing a sobriety test and telling police she drank three glasses of Listerine has pleaded guilty to drunken driving. Carol Ries, 50, was pulled over after she rear-ended another vehicle at a red light on January 9. She passed one breathalyzer test, but failed another that used different equipment. Police found a bottle of Listerine in her car, and she told them she had drunk three glasses earlier in the day. Her blood alcohol level was more than three times the legal limit, police said. According to Listerine manufacturer Pfizer Inc.'s Web site, original formula Listerine contains 26.9 percent alcohol, while other varieties contain 21.6 percent alcohol.

The focus of the story is on the novelty of drinking Listerine. But note that Ms. Ries "passed one breathalyzer test, but failed another". The first breathalyzer indicated a blood-alcohol concentration below the legal limit of .08%, while the second indicated a BAC of .30% — over three times the legal limit. Do you still believe these machines are accurate? If so, which one — if either? See my earlier posts, such as "Breathalyzers — and Why They Don't Work" and "Why Breathalyzers Don't Measure Alcohol".

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Prosecutors Fight for an End to Jury Trials

Friday, February 11th, 2005

There are few things as frustrating to many judges as having to let a time-consuming jury take away their power to decide the case. And nothing so frustrating to any prosecutor than 12 citizens standing between him and a conviction. As I mentioned a few days ago in "Arizona Denies Right to Jury Trial in DUI Cases", the Arizona Supreme Court recently ruled that defendants charged with certain misdemeanors — primarily DUI — are not constitutionally entitled to a jury trial.

The problem is that there is a statute in Arizona which specifically entitles the defendant to a jury trial in DUI cases. But judges and prosecutors have now joined forces in an attempt to deny the citizens of Arizona their legal right to a jury trial if charged with drunk driving. As reported in The Arizona Republic (February 7, 2005):

Prosecutors and municipal court judges in Arizona are now pushing to eliminate the right to a jury trial for misdemeanor drunk-driving charges in the wake of an Arizona Supreme Court decision….

The opinion was published Jan. 14 , and since then, prosecutors in Gilbert, Mesa, and Bullhead City have already asked that DUI jury trials be canceled, and municipal court judges and magistrates in Phoenix and Tucson have already canceled some, pending hearings or a clarification from a higher court. The prosecutors are certain they'll prevail and defense attorneys fear they will. The main obstacle is a state statute that explicitly grants jury trials in DUI cases. At question now is whether that statute is rendered moot….

In response to [an earlier court decision], the Arizona legislature amended the DUI laws, saying in statute 28-1381 (f) that "the defendant may request a trial by jury and that the request, if made, shall be granted."….

Jury trials are expensive and use up time and court resources. "Sometimes we prepare for a jury trial and at the last minute the defendant wants to plead before the court," said Mary Stringer, Magistrate in the Bullhead City Court. "So we have all the jurors on stand-by and the logistics of it are very often time consuming."

Prosecutors don't care for misdemeanor jury trials either, because they take more time to prepare than bench trials — and because they're more likely to end in acquittal.

Costly….Time-consuming….More likely to result in acquittal. Of course, we could just eliminate trials altogether, and have the person arrested immediately sentenced, resulting in even greater savings of money, time — and those irritating acquittals.

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