Archive for September, 2005

New Data: DUI Roadblocks Don’t Work

Wednesday, September 21st, 2005

In previous posts I've commented upon the ineffectiveness of DUI roadblocks. Yet, MADD continues to demand more and more of these wastes of law enforcement resources. Now this story:

Statistics spark debate on whether DUI checkpoints work

STOCKTON, Sept. 18 — Recently released federal data has prompted a beverage industry group to declare checkpoints ineffective and to push for more resources to be spent on patrols to prevent people from drinking and driving.

The National Highway Traffic and Safety Administration in August released data on alcohol-related deaths in 2003 and 2004. Last year saw a decline in fatalities, and most of the drop occurred in states that don't use sobriety checkpoints. That led the American Beverage Institute, a Washington, D.C.-based restaurant industry group, to proclaim checkpoints as an ineffective method in preventing alcohol fatalities.

"There were 411 fewer deaths in 2004, 394 of which were in nonroadblock states," said John Doyle, executive director of ABI. "It's a startling finding when you look at it through that filter."

California is one of 39 states that use checkpoints to prevent and catch drunken drivers. It also had 14 more fatalities in 2004 than 2003. All 11 states that don't use checkpoints — among them Oregon and Washington — reported a decrease in alcohol-related deaths….

"Checkpoints are successful, because they get the word out," said Officer Bill Sivley, a spokesman for Stockton CHP, adding that officers often give out informational pamphlets to motorists. "We will never know how many people were deterred from drinking and driving because of them."

Let's see….DUI roadblocks don't work — they may even increase fatalities — but we should have more of them because they "get the word out"?

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How Can You Defend Drunk Drivers?

Sunday, September 18th, 2005

First off, I don’t defend drunk drivers:  I defend citizens who have been accused of being drunk drivers.  And no, that is not a technicality — at least not in this country.  Not yet.

But it always surprises me how many people are outraged that I would defend someone accused by the police of a crime – particularly when it’s DUI.  Arrest increasingly means guilt, and there is a public perception of criminal defense attorneys as being obstructionist in this rush to judgment, of being nefarious and somehow unethical.  Certainly, every defense attorney tires of the ubiquitous cocktail party question:  “How can you defend guilty people?” 

The answer to that question is complex, involving issues of possible innocence, inaccurate or false evidence, overcharging by the prosecutor, guarding constitutional rights, untrustworthy testimony, ensuring a fair trial, protection from unfair laws and harsh/illegal punishment — and just keeping the government honest. 

One of the better answers, however, was provided some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime.  To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Some fine day, someone you love will be arrested and charged with a criminal  offense.  That person may or may not be innocent, but on that day you will pray that he or she is defended against the overwhelming forces of the government by a lone attorney.

If that doesn’t do it, read To Kill a Mockingbird one more time.

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More Cops Drawing Blood

Thursday, September 15th, 2005

A few weeks ago, I posted about a practice apparently originating in Utah but spreading to other states: police officers using hypodermic needles to draw blood from DUI suspects — often on the highway. As the following local news story indicates, the practice continues to gain momentum:

Texas Police Will Take Blood By Force in DUI Cases

After completing a training course, Dalworthington Gardens police officers have been certified to draw blood from any motorist whom they suspect of driving under the influence of alcohol.

The small North Texas city joins three counties — Montague, Archer and Clay — which have recently adopted similar policies. These jurisdictions are seeking to make drunk driving convictions less vulnerable to court challenge as mounting evidence shows breathalyzer machines can be inaccurate…

Section 724.017 of the Texas code requires that, "Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer….’qualified technician’ does not include emergency medical services personnel." Dalworthington Gardens believes their twenty-hour course meets this standard.

The Texas law permitting only physicians, technicians, chemists or nurses to draw blood seems fairly clear. But then, of course, we’re dealing with the "DUI Exception" here…. Incidentally, did you catch that one little phrase in the story? The one about "mounting evidence shows breathalyzer machines can be inaccurate"?…..(When I read that, I had a flashback to the scene from Casablanca where the police captain, pocketing his winnings, says to the Nazi officer, "I am shocked, shocked, that gambling is going on at Rick’s Place!".)

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DEA Wants Prohibition Back?

Tuesday, September 13th, 2005

The Drug Enforcement Administration is apparently experiencing some nostalgia for the good old days of Prohibition, as evidenced by the following from their official Just Think Twice website:

A word about prohibition: lots of you hear the argument that alcohol prohibition failed—so why are drugs still illegal? Prohibition did work. Alcohol consumption was reduced by almost 60% and incidents of liver cirrhosis and deaths from this disease dropped dramatically (Scientific American, 1996, by David Musto). Today, alcohol consumption is over three times greater than during the Prohibition years. Alcohol use is legal, except for kids under 21, and it causes major problems, especially in drunk driving accidents.

MADD is not alone….


(Thanks to Scott Henson of Austin, Texas.)

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How to Get DUI Convictions: Change the Rules

Saturday, September 10th, 2005

In a classic illustration of how the legal system works in DUI cases, the Montana Supreme Court just ruled that results of handheld breath devices used by officers in the field are admissible in evidence — after years of ruling that they were unreliable and inadmissible:

In a 5-2 vote the Montana Supreme Court decided Tuesday to allow a preliminary breath test for alcohol consumption to be used as evidence.

The case of State of Montana versus David Damon involved a DUI stop in 2002 in which a preliminary breath test (PBT) was conducted on Damon…The case was appealed by Damon who argued the District Court "abused its discretion" in concluding the PBT was reliable…

This was not the first time the PBT has come up before the Montana Supreme Court. Throughout the written opinion three cases are cited. In all three cases the court found against the PBT, specifically that the State did not provide enough evidence to prove the "statistical reliability" of the PBT….

Montana Supreme Court Justice Patricia O. Cotter wrote an 11 page dissent.
Citing previous court rulings, Cotter expressed her view.

"I am at a loss to understand why we feel so constrained to buck the well-reasoned national trend and admit these results as substantive evidence of guilt. Nothing has changed … to deem these machines magically more trustworthy than they were just a few months ago, or to justify this about-face in our jurisprudence," Cotter wrote in conclusion of her remarks.

If rules get in the way of convictions, change them….

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