Archive for May, 2006

Supercops: The Smoking Gun

Friday, May 19th, 2006

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

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Everything You Need to Know About Breathalyzers

Thursday, May 18th, 2006

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…..

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Breathalyzers: “State of the Art”?

Tuesday, May 16th, 2006

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.

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Why Do Cops Destroy the Breath-Alcohol Evidence?

Sunday, May 14th, 2006

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.

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Driving After Midnight = Probable Cause to Stop for DUI

Friday, May 12th, 2006

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.)

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