Archive for June, 2006

When Judges Judge Judges

Friday, June 9th, 2006

Judges are quick to throw the book at drunk drivers, somewhat less so when those drunk drivers are judges themselves — even when they try to use their robes to keep from being arrested.


Commission Censures Two Judges Who Sought

Preferential Treatment Following DUI Arrest

San Francisco, CA   June 9.  The California Commission on Judicial Performance yesterday censured two superior court judges who, in separate incidents, tried to use their judicial positions to avoid being arrested for driving under the influence…

(Sonoma County Judge Elaine M.) Rushing stipulated that on June 21 of last year, she hit a residential wall while driving alone in Santa Rosa, causing property damage and sustaining a head injury, then left the scene without notifying law enforcement or the property owners. She then drove into a ditch.

When California Highway Patrol arrived, having been notified by someone other than Rushing, she told an officer that she was not the driver. She said that a man and woman were driving her home from a friend’s house, and that she had been sitting in the back seat, despite the fact that her car had no back seat.

She repeatedly told officers that she was a superior court judge, that her husband was an appellate court judge – Sixth District Court of Appeal Presiding Justice Conrad Rushing –and that they should not be arresting her…

(Riverside Superior Court Judge Bernard) Schwartz stipulated that on July 16 of last year, Pismo Beach police observed his vehicle “swerving all over the road” and crossing the double solid lines. After police determined that Schwartz’ blood alcohol level was 0.18 the officers proceeded to arrest him.

The judge told the officers, “But you know what this is going to do; this will substantially impair my career.” An officer replied, “If I let you go, it could impair my career.” The judge then said, “You don’t have to let me drive; you could just let me go home.” The officer said, “I can’t do that.”


Though receiving censures, neither judge was suspended from the bench for even a day.  And what about the criminal charges?  The laws in California require stiffer sentences in cases with very high blood-alcohol levels – in other words, you or I would be doing some hard time with the sky-high levels these two judges had, particularly where a hit-and-run was involved.  But then you and I aren’t judges.


Rushing pled no contest and was convicted of driving with a blood alcohol level of .08 with an enhancement for having a blood alcohol level greater than .20. She was placed on three years informal probation, ordered to perform 10 days of work release, attend a 45-hour alcohol program, pay a fine, and comply with other conditions of probation…

Schwartz pled no contest and was convicted of driving with a blood alcohol level of .08. He was placed on three years probation.

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Time for a Change

Wednesday, June 7th, 2006

In response to my recent post ("MADDness") about the failure of the two-decades-old "War on Drunk Driving", I’ve been reminded by readers that it’s one thing to say the system doesn’t work — and quite another to offer solutions. Point well taken, so here goes… But before looking at the solution, let’s first understand the problem. One does not deal with 1000s of DUI clients over the years without drawing certain conclusions:

1. The system, clearly, does not work: despite unfair laws, constitutional violations and increasingly harsh penalties, the problem remains…and people continue to die on the highways.

2. Playing games with statistics, as MADD and the government are so fond of doing, only obscures the problem.

3. The problem is not black-and-white, but involves shades of gray. It is convenient to punish anyone with a .08% blood-alcohol concentration, but neither fair nor productive. It is easy to lump all offenders into the same category of "drunk drivers" and simply adjust jail time by a reading on a machine, but neither fair nor productive.

4. You cannot simply identify what the problem is ("drunk drivers are dangerous"), but who the problem is. The problem is not people who drive with .08% BAC or higher, but people who represent a real danger to others on the highway. Who are they?

The problem is the person who severely abuses alcohol and chooses to drive. You can call him an "alcoholic", but it has been my experience in dealing with those 1000s of clients that there are different kinds of "alcoholics" and that using a simple label is no answer (we do love to put things in neat categories). Statistics repeatedly show that the vastly disproportionate majority of alcohol-caused injuries and deaths are caused by a few "problem drinkers" (for want of a better term). Thus, the first objective in any solution is to identify these individuals. In my experience, they can usually be identified by a combination of factors:

1. Their blood-alcohol level is not just high — it is very high, say .16% to .30% or more.

2. This is probably not the first DUI — and prior incidents are likely to be relatively recent.

3. There is a genetic flag: the individual is likely to have one or two "alcoholic" parents.

All right, we’ve identified some markers for who the problem is , but what do we do with them? To begin, let’s understand what we don’t do: we don’t hit them with stiff jail sentences. If we do, we simply remove the person from society for a few days or months — and on the day he gets out, he gets in his car and drives directly to a bar. What has been accomplished? Is society being protected — or are we simply punishing people for drinking too much? Since the punishment model clearly doesn’t work for the problem drinker, we must consider the other criminal justice models: isolation, deterrence and rehabilitation.

1. Isolation. Yes, we can put the problem drinker in jail for a few months or even a few years, and we are safe from him for that period. But can we really afford to house tens of thousands more inmates? For how long? And what happens when they get out? For that matter, given the evidence, aren’t we punishing them for a genetic condition?

2. Deterrence. How do you deter an "alcoholic"?

3. Rehabilitation. Once the favored approach in the criminal justice system, rehabilitation fell into widespread disfavor many years ago. Yet….Yet, this would appear to be the only logical approach with problem drinkers.

Ok, but what about the driver who is not a problem drinker but who is simply impaired from drinking too much?

Answer: Treat him like any other misdemeanant.

Statistically, we know he is unlikely to cause serious injury or death, but there is undeniably some risk there. Can this individual be deterred from such future conduct? Unlike with the "alcoholic", statistics show he can. Thus, it may be fair and productive to impose a fine on the typical first-offender, perhaps even suspend his driver’s license for a short period; if a high blood-alcohol level is involved, say .15%, the punishment may include a 2-day jail term. But certainly not the punishments so destructive to families and careers that are now being administered to all caught up in the dragnet.

While we’re at it, a refreshing approach — and a healthy one for society — would be to reinstate constitutional rights in DUI cases: due process, presumptions of guilt, denial of right to counsel, double jeopardy, the 5th Amendment right against self-incrimination, the right to confront witnesses, 4th Amendment roadblock violations, ad nauseum. (See "The DUI Exception to the Constitution".)

Does all of this finally solve the drunk driving problem? No: people will always drink and drive. But it will focus on the real threat — the truly dangerous driver — rather than on drinking and driving per se. And, in the process, reinstate the essential fairness and due process that has been slowly removed from the criminal justice system.

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Sobriety Checkpoints: the Slippery Slope

Monday, June 5th, 2006

The Supreme Court’s validation of DUI "sobriety checkpoints" as an apparent "DUI Exception to the Constitution" was yet another transparent attempt to circumvent the Constitution — in this case case, the 4th Amendment’s protection against stops by police for no cause. (See "DUI Sobriety Checkpoints: Unconstitutional?") Yet, checkpoints have repeatedly been shown to be considerably less than effective (see "Do Roadblocks Work?" and "Do Roadblocks Work – Part 2").

But as citizens across the country are discovering, these roadblocks are increasingly being used by police as a pretext to stop citizens for reasons other than DUI investigations — as a revenue-raising method by issuing license, registration or equipment citations (see "DUI Roadblocks for Fun and Profit") or, increasingly, for general questioning and searches.

DUI Checkpoints Find Controversy

Method raises civil liberties concerns

York, PA May 28, 2006 ? When police snagged Cody Whitten in a sobriety checkpoint, two words echoed through his head like the gentle thud of boots trudging up to his car. Papers, please! "It’s like we’re living in 1940s Germany," said Whitten, a Wrightsville-area man who said the random checks violate his Constitutional rights. He said checkpoints are an excuse to run background checks on him and every person coming home from work on a Friday evening – people who aren’t breaking any laws. "That’s not the way it’s supposed to be," Whitten said…

Residents in the area are told to expect more barricades in coming months. But according to arrest records from the last few years in central Pennsylvania, the tool isn’t as efficient as roving patrols that target drunken drivers. And civil libertarians, frustrated by what they see as a post-Sept. 11 sentiment that security and safety should trump individual rights, hope that argument will help win a battle they don’t have time to fight…
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Warrantless DUI Arrest in Home (cont’d)

Friday, June 2nd, 2006

For those readers who have speculated that the warrantless home arrest discussed in yesterday’s post must have been a "hot pursuit" case, or that the evidence was overwhelming, consider the facts (from the same newspaper article):

…The case concerned the 2003 Santa Barbara arrest of Daniel Thompson, whom a neighbor suspected was driving drunk and notified authorities. They found a parked car matching the description the neighbor provided and went to the front door of the adjoining residence during a summer evening. The door was open and a woman said the car’s driver was asleep. Moments later, Thompson walked by the officers and they entered the house and arrested him. The neighbor confirmed it was the person she suspected of driving intoxicated and throwing an empty vodka bottle out the car door….

Some woman suspected her neighbor was driving drunk — so the cops enter the home without a warrant and arrest him (and then get an ID from the neighbor). It just doesn’t get much weaker than that. But, of course, our state’s Supreme Court sees no problem. It is, after all, a DUI case…right?

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Court: OK to Arrest in Home Without Warrant….if a DUI

Thursday, June 1st, 2006

The latest victory in the War on Drunk Driving…and on our Constitution:

Justices: Police Can Arrest DUI Suspects

 in Homes With No Warrant

San Francisco, CA.  June 1 – Police may enter Californians’ homes without warrants to arrest those suspected of driving under the influence, the California Supreme Court ruled Thursday in a case testing the scope of the Fourth Amendment right to be free from unreasonable searches and seizures.

The 6-1 decision follows similar rulings in about a dozen other states.

A dissenting justice said the majority handed authorities a "free pass" to unlawfully enter private homes and arrest people without warrants.

Under the Fourth Amendment, authorities are prohibited from entering a home and making an arrest without a warrant unless so-called "exigent" circumstances are present. Those include "hot pursuit" of a fleeing felon, imminent destruction of evidence and the risk of danger to the police or other persons inside or outside of a house, among others…

A state court of appeal tossed the conviction, saying Thompson’s constitutional rights were violated. The Supreme Court reversed, saying the lower court misapplied search-and-seizure precedent.

Santa Barbara County prosecutor Gerald McC. Franklin said the decision means there is no "absolute bar into entering a house without a warrant for the purpose of arresting somebody for driving under the influence of alcohol."

‘Still think I’ve been exaggerating about "The DUI Exception to the Constitution"?

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