Archive for April, 2005

How to Get Rid of Jury Trials

Friday, April 22nd, 2005

Easy: Get rid of jurors. Did you ever wonder why it's getting so difficult to find citizens willing to serve as jurors? From WSN-TV in Miami (April 14):

FORT LAUDERDALE, Fla. (AP) — A teenager did his civic duty by showing up for jury duty in Fort Lauderdale. But 19-year-old Stacey Forbes is now serving a four-month jail sentence for contempt of court for not disclosing he and his father had arrest records….

Forbes says he had problems reading the jury questionnaire. Tests show he has a seventh-grade reading level. He has been arrested twice in the past year but has never been convicted of a crime. His judge has rejected a request to reconsider the high school dropout's sentence.

And a few days later, from AP/AOL News:

LOS ANGELES (April 20) – Call it a rude awakening. A juror was cited for contempt and fined $1,000 by a judge for yawning loudly while awaiting questioning in an attempted murder trial. The fine later was reduced to $100. The yawn came after the man, identified as Juror No. 2386 in an April 1 court transcript, had been sitting in a courtroom for two days as part of jury selection.

"You yawned rather audibly there. As a matter of fact, it was to the point that it was contemptuous," Superior Court Judge Craig Veals said. "I'm sorry, but I'm really bored," the juror said. "I'm sorry?" the judge responded. When the juror repeated his statement, he was admonished by the judge for having a "lousy" attitude. "Your boredom just cost you $1,000. I'm finding you in contempt," Veals said. "Are you quite so bored now?"

It may be getting difficult to find jurors, but it's apparently getting even more difficult to find decent judges. However, judges aren't the only ones making this civic duty less than a rewarding experience, as this story I posted last month indicates:

LOS ANGELES (March 24) AP – Jurors who acquitted actor Robert Blake of murder – and were later called "incredibly stupid'' by District Attorney Steve Cooley – want an apology. "I'm just disgusted,'' Blake jury foreman Thomas Nicholson said Thursday. "It appears to me he has no faith in the jury selection. After all, it was his people who helped choose us.'' On Thursday night, Cooley stood by his comments. "Bottom line it was the wrong verdict,'' he said. "Sometimes jurors should be held accountable for their mistakes.''

Kind of makes you want to run down to the courthouse and volunteer, doesn't it?

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Do DUI Roadblocks Work? (Part II)

Wednesday, April 20th, 2005

As I discussed in yesterday's post, the fatalities statistics used by MADD and government agencies to justify DUI checkpoints are flawed. In fact, the statistics can be viewed as indicating quite the opposite.

Well, all right, so checkpoints may not reduce fatalities — but, according to MADD, they certainly result in more DUI arrests.

Wrong again. The simple fact is that checkpoints are largely wastes of police resources and taxpayer money — not to mention unjustified invasions of privacy. In fact, in the United States Supreme Court decision (Michigan v. Sitz) upholding their constitutionality, a dissenting justice pointed out the "the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative". (Emphasis added)

This is confirmed by National Highway Traffic Safety Administration studies, which conclude that "the number of DWI arrests made by the roving patrol program was nearly three times the average number of DWI arrests made by the checkpoint programs".

Then why do we have DUI roadblocks? Consider a local news story from last week:


PENNDOT GRANTS TOTALLING $1 MILLION FUND SOBRIETY CHECKPOINTS STATEWIDE

Chester County officials said recent recommendations from the national headquarters of Mothers Against Drunk Driving have been implemented by area police departments for years. Among the recommendations are an increased focus on prevention tactics such as sobriety checkpoints.

"We work with MADD and will continue to work with them to reduce the incidents of drunken driving in Pennsylvania," (DOT spokesperson Jenny) Robinson said….

"I've read that police are less than enthusiastic about DUI checkpoints because they don't make as many arrests," (MADD official Bryce) Templeton said….

Richard Harkness, superintendent of the Tredyffrin Police Department, said checkpoints keep drivers aware that police are on the lookout for drunken drivers. He said there usually aren't many DUI arrests at checkpoints, but they help educate the public.

"There should be as many DUI roadblocks as economically feasible," Harkness said.


So…Roadblocks are invasive, don't reduce fatalities and don't produce more arrests — but we should have lots more of them. Why? To educate us.

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Do DUI Roadblocks Work?

Tuesday, April 19th, 2005

For many years now, MADD has focused much of its considerable manpower (over 600 chapters), resources (revenues of $48 million a year) and political influence on the proliferation of DUI roadblocks (or, to use the politically correct phrase, "sobriety checkpoints"). To justify this invasion of our privacy, we have been repeatedly assured that "checkpoints" are extremely effective in reducing alcohol-related traffic fatalities — and these assurances have been accompanied by "statistics". Let's take a closer look at the statistics….

According to MADD's own website, 40 states have checkpoints and 10 do not. Well, it would be interesting to compare the states with the highest percentage of alcohol-related fatalities with the list of states not using checkpoints: If MADD is correct, the states with the highest fatality rates will be the no-roadblock states. Fortunately, another section of MADD's website provides such statistics for each of the states. The 5 states with the highest alcohol-related fatality rates:

Hawaii
Nevada
North Dakota
Rhode Island
South Carolina

According to MADD, all 5 states should be non-checkpoint states. In fact, however, 4 of these states use checkpoints; only Rhode Island does not. Well, what about the 5 states with the lowest fatality percentages? They are:

Georgia
Kentucky
Indiana
Iowa
New York

If MADD is correct about the effectiveness of checkpoints, these should all be checkpoint states. But as with the previous list, only 4 of the states permit the use of sobriety checkpoints; Iowa does not. As with the previous list, the percentage is what one would expect from pure random incidence: 20% of the states (10 of 50) do not have checkpoints — and 20% of the states on each list (1 of 5) do not use checkpoints. There appears to be no correlation between fatality rates and the use of checkpoints.

Let's take a look at another set of statistics: the effect of the proliferation of checkpoints on the national rate of alcohol-related fatalities. If checkpoints are effective, we would expect to find that alcohol-related fatalities will have declined since their widespread acceptance in recent years .

Again, the statistics do not support this. To use MADD's own numbers: Since 1982, the number of fatalities nationwide from alcohol-related crashes has declined every year — until about 1993, when it dropped to 17,908. Perhaps coincidentally, this was the year after the United States Supreme Court ruled that sobriety checkpoints were not unconstitutional. In the 10 years since then, sobriety checkpoints have gained widespead acceptance — but the number of fatalities have levelled off, vacilating between 17,908 and 17,013. Far from supporting MADD's position, one could even argue that this proves sobriety checkpoints have actually halted the steady decline in alcohol-related deaths. This would probably be incorrect — but indicative of how statistics can be used to serve a desired objective.

Incidentally, my favorite example of distorting statistics for self-serving purposes is MADD's own oft-repeated claim:

Since MADD's founding in 1980, alcohol-related fatalities have decreased 44 percent (from 30,429 to 17,013) and MADD has helped save almost 300,000 lives.

300,000? Do the math….

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Pulling Over and Sleeping it Off: Still a DUI?

Monday, April 18th, 2005

I received a number of queries concerning my previous post, "Parking Under the Influence". And the answer is….Yes, you can be arrested in many states for "sleeping under the influence" in your parked car — on the shaky theory that you were probably driving some time earlier and were probably intoxicated at the time.

What was unusual about the Alabama story was that those asleep in their cars had admittedly never driven — but were arrested because they might. The response of MADD and government has been that this helps prevent DUI-related fatalities. As the Alabama sheriff said, "What if they woke up at 2:00am…and decided to drive?" What is frightening, of course, are the obvious ramifications: Where do we stop once we decide to punish folks for what they might do?

In any event, despite the rhetoric about preventing traffic fatalities, the real concern seems increasingly focused on punishment rather than prevention:

Question: If an individual begins driving home from a restaurant and realizes he has had too much to drink, what do we want him to do — if we are truly interested in preventing an accident?

Answer: We would like to see that person pull over and sleep it off.

Question: How do we encourage that conduct?

Answer: We don’t punish him for doing it.

Question: Then why do police continue to arrest and the courts to convict these folks for drunk driving?

There are two issues involved. First, the legal issue: Although under the influence, was the individual driving? The various states have slightly different definitions of what constitutes "driving", but they usually involve "operating" or being "in physical control" of a motor vehicle. Second, the public policy issue: Shouldn’t we encourage conduct that seeks to avoid danger to the public and/or commission of a crime?

Looking at the legal issue first, how can a person be "operating" or "in physical control" of a vehicle if he is asleep? Well, in their stampede to "get tough" on drunk drivers, many states have stretched their definitions of "driving" to the breaking point — and beyond. In State v. Lawrence, 849 S.W.2d 761, for example, the Tennessee Supreme Court held that a defendant who was asleep on the driver’s side of his parked vehicle with the keys in his pants pocket was in "physical control" within the meaning of the DUI statute — and thus guilty of drunk driving. Similarly, in State v. Peterson, 769 P.2d 1221, the Montana Supreme Court held that the defendant was in "actual physical control" of the vehicle when he was found parked off the roadway, asleep in the driver’s seat with the keys in his pocket. There are, fortunately, other courts which have held that this does not constitute driving. See, for example, State v. Bugger, 483 P.2d 404 (Utah).

Most courts do not address the second issue: legalities aside, as a public policy matter should such conduct be punished? This is possibly because judges may feel that is a matter for the legislature to address. But consider the holding of an Arizona court in reversing a DUI conviction:

The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway. Arizona v. Zavala, 666 P.2d 456.

Makes sense. Of course, angering MADD is not a good way to get reelected to the bench.

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Parking Under the Influence

Saturday, April 16th, 2005

So just how far are we going with all of this DUI craziness?  Well, consider the following news story from WAFF-TV NEWS (Huntsville, Alabama):

DRUNKS ARRESTED FOR PARKING UNDER THE INFLUENCE

Next time you go partying, you may want to think before you drink. That advice from Morgan County Sheriff Greg Bartlett.

“All you got to do is prove they are intoxicated. Most of the time it’s obvious if they are passed out in a vehicle,” said Bartlett.

Some drunk drivers crawl behind the wheel, taking their chances on the highway. The ones caught driving under the influence are given a breath test, then handcuffed and taken to jail. But did you know you don’t have to be driving drunk to get a DUI?

“It’s not for them to decide if they are too drunk to drive. It’s for us to decide,” said Bartlett.

Here’s how the state’s DUI law works. You are out drinking. You decide to leave the bar and get into your car. Even if your car is parked and the keys are in your pocket, an officer can charge you with DUI. The same is true sitting in your own driveway.

“What if they woke up at 2 a.m. and decided to look around. They didn’t see anybody and decided to drive then they still may be under the influence and still hurt somebody,” Bartlett explains….

While not everyone agrees with the state’s law, Bartlett says its better to be safe than sorry.

“We know they can start driving at anytime. You can’t sit there and watch them. It gives the officer a chance to get them off the road.”

Arrested for going to sleep — because you might wake up and decide to drive?  Why not arrest anyone who buys a gun — because they might decide to shoot someone?  Think about that….

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