Archive for May, 2006

Yet Another DUI “Loophole” Plugged

Wednesday, May 10th, 2006

As I mentioned in an earlier post, defense attorneys continue to be frustrated in their attempts to find out how specific breath testing machines are programmed to work.  The manufacturers hide behind a "trade secrets" wall, and prosecutors in collusion with them profess inability to obtain the information.  And the accused citizen continues to face "trial by machine" — with the main "witness" immune from cross-examination.

After judges in a number of Florida counties finally ordered prosecutors to turn over the information or have the tests suppressed, state legislators decided to plug this legal "loophole" (or, as it is known to some of us, "due process"):


Legal Loophole in DUI Cases Could be Tossed


Orlando Sentinel.  The Florida Legislature voted Thursday to close a gaping loophole in a state law that had resulted in hundreds of breath-alcohol tests being thrown out of court.

By a unanimous vote, the House outlawed the release of computer-software secrets at the core of the breath-alcohol machine used by every law-enforcement agency in the state.

The bill, approved earlier by the Senate, now goes to Gov. Jeb Bush, who has not indicated whether he will sign it into law….

For 1 1/2 years, defense attorneys have argued in counties across Florida that state law required prosecutors to release the software information. Without it, there's no way to know whether the breath-alcohol test unit works properly, they said.

A few judges, especially in Seminole County, agreed, banning juries from learning about breath-alcohol test results if the state didn't surrender the Intoxilyzer 5000's software source code.

Prosecutors said they couldn't release the source code because they didn't have it. The machine's manufacturer, CMI Inc. of Owensboro, Ky., says the code is a trade secret.

The legislation passed Thursday requires prosecutors to release details about breath-alcohol test results, but not about how the machine works. It also bans judges from ordering prosecutors to produce any information not in their possession.

"It's a great thing," said Maj. Jim DiBernardo of the Miami-Dade Police Department and state policy director for Mothers Against Drunk Driving…

Defense attorneys questioned the constitutionality of the legislation and said they would continue to challenge the machine's accuracy.

Prosecutors were thrilled with the vote…


Bear in mind that the primary evidence against a citizen accused of drunk driving is the breathalyzer.  In most cases, the accused is charged with two offenses:  DUI and driving with a BAC of .08% or higher.  In the former charge, the breath reading establishes a presumption of guilt; in the latter case, the breath reading is essentially the only evidence.  Yet, defense attorneys are blocked from finding out how the machine is programmed to work — and, thus, whether it was accurate.

(Interesting aside:  the spokesperson for the Miami-Dade Police Department is, apparently, also state policy director for MADD.)


(Thanks to William C. Head.)

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For Sale: Breathalyzers….Cheap

Monday, May 8th, 2006

No, we’re not talking about one of those little gizmos you can buy down at Sharper Image.  These are the real deals, the actual law enforcement breath-alcohol machines currently being used at police stations across the country…and legally admissible in court to prove guilt beyond a reasonable doubt.

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.  A few examples on eBay today:

CMI Intoxilyzer 5000  (Used, but in “good condition” — except it keeps reading “printer error”): starting bid $249

Intoximeter AlcoSensor IV (portable package complete with printer charger, dry gas ethanol for calibration and 200 mouthpieces):  starting bid $3000

Alcohawk Breathalyzer Police Kit (new portable 2006 model):  “Buy it now” for $189.99

CMI Intoxilyzer 5000 (20 used units available, “from an Arizona government facility”): “Buy it now” for $149.99 each

The Intoxilyer 5000 is the machine most commonly used by police agencies in the U.S. today.  Just think:  With a half-hour of self-study, you too can calibrate and operate one of these things — just like your local police….and with the same “beyond a reasonable doubt” accuracy.

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Another DUI “Loophole” Plugged

Thursday, May 4th, 2006

Another news story fairly typical of the attitude toward constitutional rights when it comes to drunk driving:


Lawmaker Seeks To Erase Drunken Driving Loophole

Issue Centers Around Evidence Of  Breathalyzer Refusal

HYANNIS, Mass. A Cape Cod legislator wants to close a loophole in the state's drunken driving laws that bars juries in criminal trials from being told whether or not a defendant refused to take roadside tests or a Breathalyzer. But he could be up against the state constitution…

The barring of refusal evidence hinges on the state Constitution, which contains a provision safeguarding citizens from self-incrimination, Nardone said. In response to a legislative inquiry in 1992, the Supreme Judicial Court ruled that allowing refusals would create a catch-22 situation, where refusing or taking the test could lead to an implication of guilt.


Another one of those darned "loopholes": the Constitution. No problem, just use the old "DUI exception".

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SuperCops Revisited

Wednesday, May 3rd, 2006

A few days ago, I posted a news story about police officers who make huge amounts of money by making bad drunk driving arrests — arrests which are more likely to go to trial and thus earn big overtime paychecks for the officers (“Cop Makes $172,000/year on DUI Arrests”). For those who think maybe they’re just good cops who are overly enthusiastic, consider the recent follow-up to that story:


Highest-Paid HPD Officer Also Racks Up Reprimands

The complaints range from verbal abuse to filing false time sheets

Houston Chronicle, April 30. The Houston Police Department officer who pulls down more pay than anyone in the department outside of the chief is also one of the most reprimanded officers on the force.

Last year, senior officer William Lindsey Jr. grossed more than $170,000 over $100,000 of it in overtime as a member of the HPD’s drunken driving task force. However, in his 27-year career, the department’s internal affairs division has upheld at least 32 allegations against Lindsey arising out of 23 separate complaints. Only 13 of HPD’s 4,760 officers have been involved in more than 23 complaints resulting in “sustained” allegations, according to department records through 2004…

The complaints against Lindsey include verbally abusing citizens, falsifying time sheets to reflect overtime he didn’t work and refusing to report for duty, according to documents obtained by the Houston Chronicle through the Texas Open Records Act…

But since the Texas attorney general ruled in 2000 that law enforcement agencies do not have to publicly reveal disciplinary action against an officer that resulted only in a written or oral reprimand, the number of sustained allegations against Lindsey could total more than 32…

The sustained complaint of overtime fraud against Lindsey from 1990 is noteworthy because of recent accusations by DWI defense attorneys that Lindsey and other DWI task force members manipulate the HPD overtime system…


Why risk false overtime claims when you can just make false DUI arrests?

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“I stopped the Defendant because he was weaving”

Monday, May 1st, 2006

A high percentage of DUI traffic stops are justified by police officers on the grounds that the car was "weaving" — one of many possible signs of drunk driving, if the weaving is pronounced (the National Highway Traffic Safety Administration lists 19 common driving symptoms in DUI cases).  More importantly, the officer knows it is difficult to cross-examine him as there are no objective criteria for "weaving" and nothing but the defendant's word to contradict him.  Unless, of course, a camera is rolling…

Take a look at this videotape (click on "Video: unedited traffic stop"), taken from a car following a deputy sheriff who follows and finally stops another car.  The deputy appears to be the only one weaving — and constantly tailgating the car he's following (tailgating can cause the car being followed to weave and is, incidentally, another of the 19 symptoms of drunk driving).

For a continuing education, click also on the previous link, "Video: CBS4 Miami story".


(Thanks to Richard.)

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