DUI BLOG

Someone once described insanity as doing the same thing over and over and always expecting a different result…

This month’s (May 2006) “MADD E-newsletter” contains the following call to arms (and request for more contributions):

Drunk Driving Deaths On The Rise

U.S. Transportation Secretary Norman Y. Mineta declared highway traffic deaths a “national tragedy” when the Department of Transportation’s National Highway Safety Administration (NHTSA) released its preliminary Fatality Analysis Reporting System (FARS) data showing that 43,200 people died on the nation’s highways, up from 42,636 in 2004. The data also shows that, alarmingly, alcohol-related traffic fatalities increased 1.7 percent from 16,694 in 2004 to 16,972 in 2005.

This was accompanied by a link to the following commentary on their website:

“MADD is profoundly concerned about the unsettling increase in drunk driving fatalities and innocent victims behind the FARS data”, says Glynn Birch, MADD national president. “These numbers show that nearly 17,000 of our friends and loved ones died not because of a terrible disease, natural causes or terrorism, but because of someone’s senseless decision to drive while intoxicated.”

The preliminary data underscores the country’s complacency regarding drunk driving, which is taking its toll in precious lives. “America has the level of drunk driving that it chooses to have,”‘ Birch says. “Drunk driving is a purely man-made disaster and, unlike hurricanes and tsunamis, we know how to stop drunk driving.”

Which is exactly what MADD aims to do in achieving its strategic goal to reduce the fatalities resulting from drunk drivers by at least 25 percent by December 31, 2008. To help accomplish this objective, MADD has developed strategies that include: forming strong alliances with every level of law enforcement including prosecutors; achieving maximum seat-belt use; supporting the development of technology to prevent drunk driving; improving the performance and accountability of the DUI criminal justice system.

Well, let’s inject a little truth and logic into the hysteria.

First off, a closer look at those statistics — “17,000 of our friends and loved ones died because of someone’s senseless decision to drive while intoxicated”. As the man said, there are lies, damned lies and statistics. Let’s take a look at the statistics for “DUI-related traffic fatalities” for the past 10 years (1995-2004) according to MADD’s own website. They range from a high of 17,749 in 1996 to a low of 16,572 in 1999. Not much of a difference, is there? Yet, MADD sees 16,972 (one of the lower totals during the period) as an “unsettling increase” and the federal government calls it “alarming”. Really?

Of course, the key phrase here is “alcohol-related traffic fatalities”, as I pointed out in an earlier post (“A Closer Look at DUI Fatality Statistics”):

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 mere presence of any alcohol at all, say .02%, the fatality will be counted 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 nearly 18,000 deaths on the nation’s highways attributable to drunk driving. The Times found that about 5,000 of these actually 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 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.

Now, let’s take MADD’s solution to this “alarming” 1.7% increase in fatalities…

“We know how to stop drunk driving”, MADD’s President proclaims. Well, that’s encouraging news: where has this miracle remedy been all these years? We stop drunk driving, apparently, by continuing to do more of the same: more law enforcement, more media coverage, more “improving the performance and accountability of the DUI criminal justice system”…and, of course, more contributions to MADD (according to their website, they now take in over $52 million a year).

By improving the “performance” and “accountability” of the criminal justice system , I assume MADD means fewer constitutional rights, less due process and ever harsher punishment. Well, that’s exactly what we’ve seen for the past 10 years, and according to MADD’s own figures it clearly has not worked: there has been a steady increase in criminal penalties over past years, but statistics clearly show that this approach has had no impact. Yet, MADD’s response is, “More of the same!”.

Is drunk driving a serious problem? Of course. But when hysterical solutions such as “streamlining” our justice system, dismantling the Constitution and imposing ever more severe penalties clearly don’t work, perhaps it’s time to consider other approaches.

The following findings reported in the May 22, 2006 issue of Digestive Disease Week indicate that you might want to be as concerned about the mixer in your drink as the amount of alcohol before you get behind the wheel:

When alcohol is mixed with beverages such as orange juice or soda, the rate of alcohol absorption into the blood stream depends not only on the individual, but also the “mixer.” Researchers at the Royal Adelaide Hospital in Australia analyzed alcoholic beverages mixed with diet or regular soda (with sucrose) to determine the rate of gastric emptying and blood alcohol response. They found that alcohol combined with sugar-free mixers were processed through the stomach and entered the blood stream much more quickly than alcohol with regular mixers.

Researchers analyzed eight male volunteers who consumed orange-flavored vodka beverages with both a diet mixer and regular mixer. Participants were monitored to track the rate at which the mixer was emptied from the stomach and their subsequent blood alcohol concentration (BAC) levels. From this study, the team discovered that the substitution of artificial sweeteners for sucrose in mixed alcoholic beverages may have a substantial effect on the rate of gastric emptying and the blood alcohol response. The time to empty half of the diet drink from the stomach was 21 minutes, compared to regular drinks which took 36 minutes for the same degree of emptying. Peak blood alcohol concentrations were substantially greater with diet drinks at an average of 0.05 percent, while regular drinks measured at 0.03 percent BAC.

“Today, more and more people are shifting personal preferences by choosing ‘diet’ drinks as a healthier alternative,” said Chris Rayner, M.D., of Royal Adelaide Hospital and lead author of the study. “What people do not understand is the potential side effects that diet mixed alcoholic drinks may have on their body’s response to alcohol.”

It just gets weirder….

Gee Whiz!  New York Will Fight DWI with Talking Urinals

New York Takes Crusade Against Drunk Driving to the Men’s Room

May 17, 2006. ABC News — The battle against drunken driving is going straight into the toilet, as New York plans to install motion-activated soap pucks, known as Wizmarks, in the urinals of 100 men’s rooms at drinking establishments across Long Island’s Nassau County.

When guys leave a bar, the bathroom is usually the first place they visit before they go to their cars. And now, when men step up to the urinal at participating pubs, they’ll hear this public service announcement as they relieve themselves:

“Hey, you! Yeah, you! Having a few drinks? Then, listen up! Think you’ve had one too many? Maybe it’s time to call a cab or call a sober friend for a ride home. It’s sure safer and a hell of a lot cheaper than a DWI! Make the smart choice tonight. Don’t drink and drive!”

So what do they put in the women’s room?

As defense attorneys know, the chances of getting fairness and due process in a drunk driving case are minimal. Most judges today are former prosecutors (“How to Lose a DUI Trial Before it Starts”), but more importantly they are under considerable political pressure. Put simply, most judges want to be reelected.

I’ve posted in the past about the coercive effect of groups like MADD monitoring judges and prosecutors in DUI cases (“Big Mother is Watching”). How far are some judges willing to go to appease these pressure groups?

Gallegos Accused of Altering DWI Sentences

Santa Fe, NM. Aug. 7, 2005 Santa Fe Municipal Judge Frances Gallegos systematically altered records of numerous DWI cases, often inflating jail sentences and the amount of time defendants spent behind bars, according to documents and a former court clerk.

The months-long project involving various members of her court staff began a little over a year ago after an anti-driving-while-intoxicated organization criticized Gallegos for allowing 92 percent of Santa Fe’s worst drunken drivers to escape with no jail time.

“I really think she was trying to make like she was tough on DWIs by putting in jail time,” said Jeremy Hanika, a former administrative assistant to Municipal Court Administrator Mary Anne Caldwell. “I mean, we started the project the very next day after the report came out.”

Gallegos, 55, responded to the group’s criticism by asserting she had been sentencing people to jail but her clerks had not been writing the sentences on reports sent to the state’s Motor Vehicle Division.

“I can assure you,” the judge said in May 2004, “anyone convicted of an aggravated DWI in my court is getting at least the minimum sentence, which by law is two days.”

The next day, Gallegos ordered her clerks to pull not only every aggravated DWI case she had ever adjudicated in her nearly 10 years on the bench, but every DWI case she’d ever handled. Gallegos then retroactively reported jail-sentence information missing from the documents sent to the Motor Vehicle Division.

A study of some of the documents shows that the retroactive reports — specifically the jail time sentenced and the time defendants actually spent in jail — often did not match the original reports…

A couple of months later:

Agent Alleges Judge Altered DWI Files

Santa Fe, NM Oct. 29, 2005. Suspended Municipal Judge Frances Gallegos appears to have altered closed driving-while-intoxicated case files to misrepresent her conviction record on drunken-driving cases, according to a state police investigation.

‘Falsifying a public record is a felony,’ state police Agent Patrick Oakeley said in a search-warrant affidavit filed Friday morning in District Court…

(Administrative Assistant Jeremy) Hanika told Oakeley that Gallegos ordered the DWI files to be pulled after she was criticized by an anti-drunken-driving group for being lenient on jail time for DWI offenders…

Hanika said Gallegos used white-out to blot out the jail time he had correctly written on the amended form and write in a larger amount of jail time in purple ink, according to the affidavit…

As most judges realize, it’s a lot easier and a lot safer to just rule in the prosecution’s favor at every opportunity.

(Thanks to Troy McKinney.)

Following on the heels of the recent story about sting operations in Texas where patrons were arrested in bars by undercover cops for drinking too much (“New Tactic: Preemptive Arrests”), this story out of New Mexico:

Police to Breath Test Pedestrians

Albuquerque, May 18. KOBTV  Investigators targeting bars for over serving customers intend to add another tool to their belt in coming weeks: They’ll be asking for breath tests from pedestrians.

Agents of the Special Investigations Division, which monitors alcohol laws, will be stationing extra officers in downtown Albuquerque. If anyone is seen stumbling out of a downtown bar, he or she could be asked to blow into a portable breathalyzer…

(SID agent Jim) Plagens says that any pedestrian approached by an agent and asked to submit to a breath test is perfectly within his or her rights to refuse. ‘Then we send them along their way ’so long as there are no other violations,’ he said.

So long as there are no other violations….aka, “flunking the attitude test”: How many cops who don’t like being told “no” will decide that the uncooperative citizen is “drunk in public”? How many citizens will not feel coerced into taking the test? And how many cops will tell — not ask — the citizen to blow into the device?

(Thanks to Jeanne Pruett.)

I posted last month about how some DUI cops intentionally make false arrests so that the cases will go to trial — resulting in a lot of overtime pay. An example was given of the Houston Police Department, where some DUI cops were making more than top city and department officials — one pulling in $172,000 a year. When confronted with the facts, department officials brushed the issue aside as simply “aggressive law enforcement”.

Apparently, the fraudulent nature of the practice was not unkown to the administration at the time of the story — nor was it limited to DUI officers. The following is from Tuesday’s Houston Chronicle:

‘05 Memo Told HPD Chief of

Overtime ‘Scheme’

Captain reported officers scheduled court appearances for personal gain

A Houston police commander alerted Chief Harold Hurtt last year that officers were manipulating court appearances to rake in extra overtime, according to a memo obtained by the Houston Chronicle.

The two-page letter, released under the Texas Public Information Act, states that accident investigators participated in an “intentional scheme” to add themselves unnecessarily to court dockets for their own “personal gain.”

“This practice, in my view, is costing the Department tens of thousands of dollars in unnecessary court overtime expenses,” wrote Capt. Michael Luiz, a 25-year veteran who supervises the Traffic Enforcement Division.

Police overtime has come under increased scrutiny since the Chronicle reported last month that a senior officer, William Lindsey Jr., was paid $100,000 last year working DWI cases, pushing his total pay over $170,000. The Chronicle also reported that more than 20 officers and sergeants were paid at least $50,000 in overtime during 2005, and that 122 of them made six-figure total pay.

Department officials have characterized the overtime as the unavoidable result of specially trained, aggressive officers making traffic stops or DWI arrests and then earning overtime at later court hearings. The Luiz memo, sent to Hurtt in January 2005, is the first indication that a high-ranking police official had concerns otherwise…

Hurtt and other police commanders who received copies of the memo did not respond Monday to requests for interviews. Luiz declined to comment.

How to make a million in the DUI business…

All states now have two drunk driving laws: (1) driving under the influence of alcohol (aka “DUI”, with local variations, such as “driving while intoxicated” or “DWI”), and (2) the so-called per se law of driving with .08% or higher blood-alcohol concentration (BAC). Most of those arrested will be charged and prosecuted for both offenses.

The breath machines (commonly — and inaccurately — referred to as “Breathalyzers”) used to obtain the BAC are, obviously, critical to the drunk driving case. As for the per se offense, the only evidence of the crime is the machine: if the thing says .08% or higher and the jury believes it, the defendant is guilty. And even as to the DUI charge, the readings will be considered presumptive: if the BAC is .08% or higher, the jury will be instructed by the judge that the defendant is presumed guilty — and he must be found guilty unless he can prove his innocence (I’ve discussed this in “Whatever Happened to the Presumption of Innocence?”).

These machines are all-important: they determine guilt or innocence. But their manufacturers continue to assure us that they are “state of the art”. So how accurate are they?

Well, as I’ve written in the past, not very:

Breathalyzers — and Why They Don’t Work
Close Enough for Government Work
The Mouth Alcohol Problem
Breathalyzers: Why Aren’t They Warranted to Measure Alcohol?
Driving Under the Influence of….Bread?
Warning: Breathalyzer in Use
Breath Fresheners and Breathalyzers
Diabetes and the Counterfeit DUI
Why Breathalyzers Don’t Measure Alcohol
Can Body Temperature Affect Breathalyzer Results?
The Effect of Anemia of Breath Tests
GERD, Acid Reflux and False Breathalyzer Results
Driving Under the Influence of….Gasoline?
Do Breathalyzers Discriminate Against Women?
Breathalyzer Inaccuracy: Testing During the Absorptive State
Breathalyzer Inaccuracy: Post-Absorptive
Breathalyzer Inaccuracy….It Gets Worse
Warning: Smoking Can be Hazardous to Breathalyzer Results
How to Fool the Breathalyzer
Breathalyzer Manufacturers Won’t Tell How They Work

State of the art? Far from it, yet thousands of American citizens continue to be accused and convicted by these machines…..

Getting convictions in the ongoing “War on Drunk Driving” depends upon the public’s faith in blood-alcohol evidence — particularly in the so-called “breathalyzers”. And over the 35 years or so that I’ve prosecuted and then defended, prosecutors have always represented them to juries as deadly accurate and fail-safe — no matter what make or model the breath machine. State of the art. Yet, I’ve noticed an interesting phenomenon…..

The manufacturers keep changing them.

A whole lot of years ago, when I was dealing with the grandaddy of the “modern” breath machines, the Breathalyzer 900, these devices were presented to juries as ushering in a new age of highly accurate breath-alcohol analysis. And which scientific laboratory developed and manufactured these scientific wonders? Smith and Wesson. Yes, the manufacturer of that marvel of science, the six-shooter.

And, of course, there were endless problems with these machines, so Smith and Wesson modified it and offered the model 900A. Which continued to have problems, so S&W developed the Breathalyzer 900B — followed by the new, improved, “state of the art” and now truly foolproof Breathalyzer 1000. Which turned out to be less reliable than the 900.

Of course, this led to the model 1100, followed by the absolutely-no-fooling-state-of-the-art Breathalyzer 2000. Which eventually led to Smith and Wesson finally throwing up their hands and selling out to a German company, National Draeger. (Incidentally, the old Breathalyzer 900s are still being used by some rural police departments today.)

Meanwhile, other corporations had smelled the government money. A new player, Omicron Systems, came out with a machine to compete with the Breathalyzer: the Intoxilyzer. Omicron then sold out to CMI, Inc., which produced the Intoxilyzer 4011 — offered as a vast improvement over the Breathalyzers. This model, like the Breathalyzer, was followed by a series of modifications and improvements (models 4011A, 4011AR, 4011AS, et al.) and, of course, finally by ditching the machine for their new, ultimate gizmo: the Intoxilyzer 5000. Truly “state of the art”. Except it wasn’t.

So back to the drawing board — and, after a series of modified versions of the 5000 over the years, the latest model: the Intoxilyzer 8000. Which, jurors are again assured, is completely reliable and deadly accurate….until the next improved version.

Meanwhile, other competitors decided that the sad state of breath testing devices presented opportunities. Intoximeters, Inc., produced the Intoximeter 3000. Which did not fare well. This time Intoximeters, Inc., gave up relying solely on the underlying technology, infrared spectroscopy, and tried to integrate a simpler method involving electrochemical analysis. Result: the Intoximeter EC/IR. State of the art….until the next improved model is offered.

Others smelled the blood in the water. Verax Systems produced the BAC Datamaster, then quickly gave up and sold out to another manufacturer, National Patent. And the German heirs to Smith and Wesson, Draeger, began marketing their improved version, the Alcotest 7110. And so on….

Each of these devices, their manufacturers assured well-funded law enforcement agencies, was a great improvement over earlier models and competitors’ machines. And in each and every case, regardless of the machine being used, the prosecution would assure jurors that it was reliable, accurate and, in fact, “state of the art”: they could convict the defendant with a clear conscience.

And when defense attorneys would point out the defects and problems, jurors would be assured that this was just “smoke and mirrors” from sleazy lawyers. The defense would point out, for example, that the machine falsely reports a wide range of chemical compounds as alcohol. Acetone in the breath, for example, caused high readings. And prosecutors assured jurors that this was another defense lie…until the manufacturers developed and began marketing acetone detectors.

Then there were the studies indicating that radio frequency interference (RFI) was widely causing unpredictable fluctuations in test results. More smoke and mirrors from the defense, jurors were told. But soon manufacturers were marketing RFI detectors.

And the mouth alcohol problem — another baseless attack on the prosecution’s state of the art evidence, followed by another device developed by the machines’ makers: the mouth alcohol detector. And so on ad nauseum….

So what is the latest trend? Apparently, after all of those public reassurances, law enforcement is starting to give up on the machines. Abandoning the search for “state of the art”, they are going in the opposite direction: cheaper, easier to use and even less accurate hand-held breath gizmos used in the field. And, as I’ve indicated in past posts, police are beginning to turn to direct blood analysis: cops jamming hypodermic needles into suspects out on the highways.

State of the art.

As we all know from watching TV, the police are always very careful to preserve the evidence in criminal investigations. Except in DUI investigations…

What is the single most important piece of evidence in most drunk driving cases? The Breathalyzer test. In fact, it’s the only evidence of driving with over .08% blood alcohol. And it’s pretty important for the “driving under the influence” charge, too: the law presumes the defendant is under the influence if the test result is .08% or higher. Evidence just doesn’t get more important than that.

So, of course, the police are careful to preserve the breath sample, right? I mean, there may be some question later of whether the machine was working correctly; it would be a simple matter to save the sample so it could be tested again on another machine.

Fact: Today, the breath sample is routinely destroyed moments after it is tested.

But how can this be? What would happen if police destroyed drugs after testing them? That’s a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and reversed the conviction:

Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).

How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a field crimper-indium encapsulation kit was cheap, readily available and approved by the California Department of Health Services. So why isn’t this critical evidence saved in DUI cases today?

The Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case. California v. Trombetta, 467 U.S. 479 (1984).

What? The breath evidence is not “expected to play a significan role in the suspect’s defense”? And neither of the two conditions is met in a DUI case? Let’s take another look at the Supreme Court’s test:

1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..

What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of value to the suspect?

2. The defendant was able to “obtain comparable evidence by other means”…..

How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him (a suspect is entitled to an independent blood test, but police rarely advise him of this right) — but it would probably be so much later that it would not be relevant or even admissible in court.

Another example of “the DUI exception to the Constitution”. It’s interesting that the New Hampshire Supreme Court later rejected the U.S. Supreme Court’s reasoning, and relied upon its own state constitution in requiring breath samples to be saved:

A suspect would face numerous practical difficulties in obtaining a second sample on his or her own. While in police custody, the suspect would have to locate an available, licensed technician capable of promptly performing a second test, no matter what time of day or night. Even if a defendant successfully obtained an independent second test, the results would not have the same evidentiary force as would a second test performed on the same machine at approximately the same time. Opinion of the Justices, 557 A.2d 1355 (1989).

The Trombetta decison was, as intended, a huge green flag to police agencies across the country: Go ahead and destroy the evidence — but only in DUI cases. And law enforcement agencies across the country have happily complied.

The only thing unusual about the following news story is that this officer was truthful about a common practice most other officers deny:

Officer Testifies Everyone a DUI Suspect After Midnight

Minot, ND. May 11 –  Be aware that if you’re driving around after midnight you are­ a drunk driving suspect, apparently in the eyes of at least one law enforcement officer ­.

Highway Patrol Trooper Ryan Hoffner testified in Northwest District Court in Minot April 21 that “It is assumed that everyone on the road after midnight is a suspect for driving under the influence.” The statistics, he claims, bear that out…

According to court records, in the early morning hours of Nov. 13, 2005, Darren Lee Bachmeier was stopped by Hoffner on North Dakota Highway 28 between Carpio and Berthold…

Bachmeier denied any erratic driving. His passengers likewise stated they did not observe any erratic driving by Bachmeier, according to the hearing record.

“Hoffner testified that he had not observed any violations, but apparently acting upon his assumption that everyone on the road is a suspect, left U.S. Highway 52, and began to pursue the observed vehicle on Highway 28,” the record said.

Hoffner testified he pushed his patrol vehicle to at least 80 mph in order to close the distance between his vehicle and the vehicle he was pursuing. The speed limit on Highway 28 is 65 mph, the document pointed out.

Bachmeier argued that Hoffner had to be traveling well in excess of the speed limit to close the distance as rapidly as he did. Bachmeier asserts Hoffner had to exceed speeds of 100 mph in order to close the distance…

(Judge Gary) Lee wrote, “Officer Hoffner freely admits that he had seen nothing to raise any suspicion that the Bachmeier pickup had violated any laws. He had no reason to believe that Bachmeier was a violator. His only reason to suspect Bachmeier was his assumption that anyone on the road after midnight is suspected of driving under the influence.”

Lee also had some harsh words for the state during the hearing.

“Almost as incredible to the court is the state’s reply to those actions. The state’s reply is simply, ’so what.’ Apparently, the state’s position is that it is entirely justifiable for law enforcement to ignore the laws, violate the laws, potentially endanger life and property of others through high speed late night vehicle chases, so long as in the end an arrest is made.”

“The state’s attorney is responsible for the enforcement of all law. Turning a blind eye to violations of law, especially when committed by trained law enforcement officers, seems to be in derogation of that duty,” Lee wrote.

So, no probable cause to stop and the gutsy judge throws the case out, right? Wrong. The “DUI exception to the Constitution” kicked in:

He added, “All that being said, however, the question before the court is whether this conduct constitutes outrageous government conduct. In this case, it cannot be said that Hoffner’s actions rise to the level of compelling due process to bar this prosecution.”

“True, he drove at an excessive rate of speed on a rural stretch of highway, late at night. There was only one other car that he knew to be on the road. Had Hoffner actually seen any suspicious activity, or other traffic violations, his conduct would have been justifiable under (state law).”

“Nor does the state’s apparent disregard for the law it is duty bound to enforce arise to the level of outrageous conduct.”

Lee then denied Bachmeier’s motion to suppress. “The matter will not be dismissed for outrageous governmental conduct,” he ordered.

Bachmeier’s case will now be scheduled for a jury trial. No trial date has yet been set.

The judge seems to have overlooked the Fourth Amendment to the Constitution.

(Thanks to Jeanne M. Pruett.)