Archive for June, 2005

Be the First on Your Block….

Tuesday, June 7th, 2005

….to own an official breath alcohol testing instrument!

No, we’re not talking about one of those little portable jobs you can buy down at Sharper Image.  These are the real deals, the actual law enforcement devices used at police stations – legally admissible in court.

What?  You thought the manufacturers had agreements with police agencies not to sell these things to private citizens — particularly not to defense attorneys?  Well, yes, but then we live in the era of….eBay. 

There are a half-dozen or so makes and models commonly used across the country and periodically one comes up for auction.  Where do they come from?  Who knows.  But they’re not cheap:  they can cost $1500 or more, depending upon the model — compared to new prices of $5000 and up; an Intoximeter EC/IR (ElectroChemical/InfraRed) sold on eBay a couple of days ago for $2100.  Try entering “breathalyzer”, “intoximeter”, “intoxilyzer” and/or “datamaster” in eBay’s search box.

With an hour or two of self-study, you too can calibrate and operate one of these things — just like your local police….and hopefully with more accuracy.

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Expecting a Different Result

Monday, June 6th, 2005

From WOWT-TV news in Omaha:

DUI Penalties Increase Repeat offenders targeted

Repeat drunken drivers will be subject to tougher penalties under a bill passed by Nebraska lawmakers.

The measure passed Friday will increase the maximum penalty for a second-offense DUI from 90 days in jail to up to five years in prison. The higher penalty will only apply if the repeat offender has a blood alcohol content at least twice the legal limit….

To put things in perspective, the same Class IIIA felony 5-year maximum is also imposed in Nebraska for intentional child abuse, sexual assault of a child under the age of 14, and homicide caused by willful reckless driving. These folks are targeting the right drivers — high BAC recidivists — but with the wrong medicine. Just continually increasing the punishment has never worked with severe alcoholics and never will. (See my earlier post, "Punishment vs Treatment in DUI Cases".) This latest wisdom from Nebraska’s politicians brings to mind an oft-repeated definition of insanity: Doing the same thing over and over and expecting a different result.

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DUI and the Presumption of Guilt

Friday, June 3rd, 2005

In most countries of the world, an accusation by the State forces the accused to prove himself innocent. In the United States, however, the presumption of innocence has always been a fundamental part of our rights as a free people. This basic protection against the power of the government has been recognized as flowing from the 5th, 6th and 14th Amendments to our Constitution. As the United States Supreme Court has said, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. U.S., 156 U.S. 432 (1895).

So what happened to this presumption of innocence in a drunk driving case? Is this yet another example of “The DUI exception to the Constitution”?

Let’s take a look at how our DUI laws have slowly eroded this fundamental right….

Let’s assume you’ve been arrested for drunk driving, and a breathalyzer gives a reading of .09% blood-alcohol concentration (BAC). You will probably be charged with two crimes: (1) driving under the influence of alcohol, and (2) driving with over .08% BAC.

Let’s look at the .08% charge first. The .08% offense depends entirely upon the results of the breath machine (often called a “Breathalyzer”, although there are many makes and models). These machines are notorously unreliable for any number of reasons. But a funny thing happens when your attorney tries to bring out those reasons for the jury. He tries to point out, for example, that the Breathalyzer computes the results by presuming that the defendant has a partition ratio of 2100:1 (the ratio of alcohol in the breath to the alcohol in the blood) — but that this is only an average: in fact, the defendant’s ratio is much lower, so the .09% reading should actually be .07%. However, the judge stops him: the law presumes that all men are average — even if they are not.

The Supreme Court of California has specifically ruled that such scientific truth is irrelevant. People v. Bransford, 884 P.2d 70 (1994). The Court justified its ruling in a rather frank — and amazing — justification:

It (.08%) will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges.

In other words, ignoring scientific facts makes it easier — and cheaper — to convict.

What about the officer who gave the breath test? Surely, we can question his experience and the way he administered the breath test. And this raises a prosecutrial favorite: the “Official Duty Presumption”. The California Evidence Code (sec. 664) puts it very simply: It is presumed that official duty has been regularly performed. Period. That’s it: Since it was the officer’s official duty to give the test, the law presumes he was qualified and did it correctly — and the burden is on the defendant to prove he didn’t.

Interesting twist on the presumption of innocence, huh? Well, so much for the .08% charge. At least the defendant is presumed innocent of the DUI charge, right?

Wrong. The laws of most states create a presumption of guilt: if the Breathalyzer reads .08% BAC or higher, the jury will be instructed that the defendant is legally presumed to be under the influence of alcohol. That’s right: the defendant is presumed guilty. As with the others, this is called a “rebuttable presumption” — that is, the defendant can try to rebut this presumption with other evidence. Put another way, he is presumed guilty and the burden is on him to prove his innocence. Just like in third world countries.

Ok, but the law says it’s illegal to have .08% BAC when driving — not when tested an hour later at the police station. If, for example, a person has a drink or two before driving, the alcohol will not be absorbed into the system for an hour or so: it will not be in his system while driving, but will be reaching peak BAC levels when tested an hour later at the station. So how does the prosecution prove what the BAC was at the time of driving?

Easy: the law presumes the BAC is the same. Let’s take a look at California’s fairly typical law:

In any prosecution…it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her breath at the time of the performance of a chemical test within thre hours of the driving.

Well, now, that’s really amazing. The Legislature simply passed a law against scientific truth. We can absolutely say, with scientific certainty, that the BAC will NOT be the same three hours after the test — and yet the law says it is.

So much for the “presumption of innocence” in a DUI case….

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When is a Refusal not a Refusal?

Wednesday, June 1st, 2005

When a DUI suspect is arrested, he is asked to submit to a blood, breath or urine test. If he refuses, his license will be suspended — for a considerably longer time than if a test had shown .08% or higher. In addition, many states impose an increased penalty in the criminal phase, usually a mandatory jail sentence; some states make refusal a crime independent of the underlying DUI.

Finally, the fact of refusing can be used as evidence of “consciousness of guilt” in trial — a practice which has been held by the U.S. Supreme Court not to be a violation of the Fifth Amendment right against self-incrimination. (See my earlier post, “Believing You Have Constitutional Rights in a DUI Case Can be Dangerous”.)

The reason for harsher treatment is, of course, to encourage suspects to provide evidence considerably more reliable than an officer’s opinion: it is the evidence that is desired, more than a desire to punish for not cooperating. It would follow, of course, that if a suspect changes his mind and agrees to provide a blood, breath or urine sample — what is referred to as “curing” the refusal — there would be no penalties.

Wrong — in most states. A summary of the situation was presented by a New Jersey appellate court where the defendant had initially refused to take a breath test until he could speak with his attorney:

We have been referred to various out-of-state decisions in the briefs of counsel. The majority rule in those cases which have an implied consent statute like ours….is that the initial refusal is final and hence that there is no right to “cure” an initial refusal… The cases expressing the majority view essentially turn on the question of the unreasonableness of having police officers turn aside from other duties to administer a test after the driver has initially refused. The cases allowing a “cure” generally do so on the basis that a change of mind after a relatively short delay does not prejudice the presentation of the state’s evidence nor defeat the purpose of the implied consent statute. State v. Corrado, 446 A.2d 1229.

The New Jersey court decided to follow the majority approach. A Florida appellate court, however, chose the opposite view:

The subsequent consent to take the test cures the first refusal when the request to take the first test is made within a reasonable time after the the prior first refusal…. By approving a flexible rule we believe that this important evidence will be more frequently available and therefore the prophylactic purpose of the implied consent law will be achieved. Larmer v. State, 522 So.2d 941.

The disagreement, of course, reflects two very different underlying philosophies: Which is more important — obtaining key evidence or punishing non-cooperation? The minority recognizes that actual evidence of blood-alcohol concentration is crucial; the majority prefers to focus on deterring future suspects from refusing. Which is the “correct” view?

As usual, California has adopted its own unique approach: If a suspect refuses, he can be physically restrained and a blood sample forcefully taken from him — and he will be charged with a refusal as well.

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