DUI BLOG

I’ve posted in the past about how some medical conditions can cause symptoms that imitate intoxication (see, for example, "Diabetes and the Counterfeit DUI"), resulting in the convictions for DUI of thousands of innocent people. In this case, it resulted in death…

Clement Probe Showing NoWrongdoing,

Police Lawyer Says

No officers relieved of duty while department investigates

East Chicago, Sept. 28 An ongoing internal investigation by East Chicago police into the attempted arrest of diabetic Jerome Clement so far shows no wrongdoing, according to the Police Department’s legal adviser. No officer involved in the altercation has been placed on administrative leave while the department investigates, attorney Thomas Ryan said the day following the release of the coroner’s findings in the death of the 39-year-old welder…

Clement died Sept. 8 from what the coroner determined to be natural causes, resulting from complications of the diabetes Clement suffered since the age of 11.

Based on hospital records, the coroner determined Clement was not intoxicated as suspected by police.

Police reports indicate a scrap yard employee had called police a little after 10 a.m. on Aug. 24 after seeing a dazed Clement drive onto the property and stop the car.

At least four of seven responding officers, believing Clement to be drunk, struggled with Clement trying to arrest him, according to the police reports. Called to treat Clement for pepper spray and bleeding from the nose, paramedics suggested to police Clement was suffering from a diabetic attack. During treatment at the scene for the diabetic attack, Clement went into cardiac arrest.

(Thanks to Charles Rathburn, Fort Wayne, IN.)

A couple of days ago, I posted some comments (“Through a Glass Darkly”) in which I concluded by asking, among other things, “Remember when…there was a Constitutional right to jury trial in DUI cases?” Since then, I’ve received emails asking me what I was talking about: There are jury trials in DUI cases.

Yes, there are jury trials in DUI cases…in some states…for some DUI cases…for now.

A couple of years ago, I wrote a piece (“DUI and the the Disappearing Right to Jury Trial”) in which I pointed out that in New Jersey, Hawaii, Nevada, Arizona and a growing number of states that right is being taken away.

Let’s just take another look at that endangered document again, specifically the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…

Let me repeat that: “In ALL criminal prosecutions…”. Not in “some”. Not in “most”. All.

So how can they deny the right to jury trial in a DUI case? As is so often the case, by playing games with words.

It started some years ago when the Supreme Court (the same court that later found an “exception” to the Fourth Amendment for DUI roadblocks) decided that the framers of the Constitution didn’t really mean “in ALL criminal prosecutions”. So they changed one little word. They said what the framers really meant was that there was a right to jury trial in serious criminal prosecutions — not in petty ones. Duncan v. Louisiana, 391 U.S. 145 (1968).

Well, what about DUI cases? In most states, they involve potential sentences of six months in jail — and fines, license supensions, DUI schools, ignition interlock devices, 3-5 years of probation. And the possibility of even stiffer punishment for a repeat offense. Doesn’t that show that lawmakers think drunk driving is pretty serious?

Well, a Nevada citizen accused of DUI and (inevitably) convicted by a judge took the case up to the U.S. Supreme Court. With all the additional punishment over and above the six months in jail, his attorney argued, wasn’t it “serious” enough to have a right to a jury?

No, the Court held: “Considering the additional statutory penalties as well, we do not believe that the Nevada Legislature has clearly indicated that DUI is a ’serious’ offense.” Blanton v City of North Las Vegas 489 U.S. 538 (1989).

From Lewis Carroll, Through the Looking Glass:

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean, neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

A look into the (near) future of Big Mother’s “War on Drunk Driving”:

The Yomiuri Shimbun (Japan), Sept. 22. The Construction and Transport Ministry has started discussions with automobile manufacturers on ways to promote the use of anti-drunken driving devices in vehicles…

Anti-drunken driving devices called alcohol ignition interlocks prevent cars from starting if alcohol is detected. The ministry will encourage automakers to install such devices in their products and has plans to establish the criteria for this equipment. Mothers Against Drunk Driving (MADD) Japan, a civil organization has been collecting signatures to make it mandatory for chronic drinkers to install the equipment in their cars….

Major automobile manufacturers, including Toyota Motor Corp. and Nissan Motor Co., have launched projects to develop vehicles that have the equipment installed. According to the ministry, there are various ways to determine a driver’s intoxication level.

In Sweden, a trial car has been released that detects the alcohol level when a driver breathes on the ignition or the seat-belt buckle. There also has been research done on equipment that can detect alcohol levels from a driver’s skin when he or she touches the steering wheel. However, who will pay the cost of the equipment is yet to be decided.

There also remains a problem on how to cover loopholes–for example, how to prevent people who are not driving from breathing into the equipment on behalf of drivers. According to sources, equipment that confirms the identity of the driver through a preregistered voice pattern has been developed abroad.

Remember when you could just stick a key in the ignition? Or when there were no roadblocks? When guilt or innocence was not decided by a machine? When there was a Constitutional right to jury trial in DUI cases? When you were legally presumed innocent? When….

Suppose a police officer asks or orders an individual to drive a vehicle — and then arrests him for DUI when he complies?

This situation comes up more often than you might think. Take, for example, the following case that eventually made its way to the New Jersey Supreme Court….

The defendant asked his brothers at a wedding reception to drive him home because he was too intoxicated to drive. In the parking lot, however, the brothers got into a fight, attracting the attention of local police. One of the officers struck a brother with his nightstick. The defendant asked the officer to quit hitting his brother. The officer replied by ordering him to leave the parking lot. When the defendant did not immediately comply, the officer repeated the order and then forcefully escorted him to his truck. The defendant obediently got into the vehicle, started the engine — and backed into a police car.

He was arrested for drunk driving.

At trial, the judge ruled that the defendant had failed to prove entrapment or duress as a defense, and he was convicted. On appeal, however, the conviction was reversed on grounds of quasi-entrapment — that is, the defendant should have been acquitted if he could show that but for the officer’s order to leave in the vehicle he would not have driven. The prosecution appealed this reversal to the state’s supreme court.

Incredibly, the supreme court reversed the lower court and reinstated the conviction. Its reasoning? “Obviously,” the court said, “if the law were to permit [drunk drivers] to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear”. The court continued its twisted logic:

No one ordered the defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through the use or threats of violence. The police officers merely ordered defendant to get in his truck and leave the scene of the fight….

(Emphasis added) State v. Fogarty, 607 A.2d 624 (N.J. 1992).  This “no win” scenario is fairly typical of what I repeatedly refer to as the “The DUI Exception to the Constitution”.

Contrary to the deceptive statistics publicized by MADD (see “A Closer Look at DUI Fatality Statistics”), the number of deaths caused by drunk driving has not decreased significantly since the beginning of increasingly harsh penalties years ago. And so new laws are passed further lowering legal limits and raising penalties….ad infinitum.

The simple fact is that most DUI-related deaths are caused by a relatively small group of “problem drinkers”. These individuals are typically characterized by recidivism (repeat offenses), unusually high blood-alcohol levels – that is, alcoholism. And, since it is a disease, they are simply not deterred by criminal sanctions.

By now, most experts recognize that alcoholism is a disease, not a choice. And you don’t treat a disease with incarceration. If you throw an alcoholic in jail for six months, on the day he walks out he will likely go to the first bar he finds and resume drinking. What has been accomplished?

Apparently, a small number of more enlightened judges are beginning to come to the same conclusions. Consider the following Los Angeles Times article (involving a judge sitting in one of my home courts):

Positive reinforcement is a central tenet of Orange County’s DUI court, which opened in October. It is one of only two courts of its kind in California but is one of a growing number nationwide. They’re designed to reduce recidivism among drunk drivers by providing encouragement and strict supervision to help treat addiction rather than imposing jail sentences or fines….

“This is a major change in direction for courts,” (Judge Carleton P.) Biggs said. “People are starting to realize our traditional approaches don’t work’. I wouldn’t be surprised in years to come to see this approach taken a lot more”….”

We recognize incapacity due to mental disease: the plea/verdict is “not guilty by reason of insanity” (NGI). The defendant is not simply set free, but is hospitalized for treatment of the disease. Why not treatment for problem drunk drivers who suffer from the (largely genetic) disease of alcoholism? In other words, why not recognize a plea of “not guilty by reason of alcoholism” (NGA)?

Would you prefer to have a chronic drunk driver off the roads for a few months — or in control of his disease?

‘Ever wonder just what the police are looking for when they’re out at night looking for drunk drivers?  And how you can avoid looking like one?

The following list of DUI driving symptoms, from a publication issued by the National Highway Traffic Safety Administration (DOT HS-805-711), is widely used in training officers to detect drunk drivers on the roads.  After each symptom is a percentage figure which, according to NHTSA, indicates the chances that a driver is under the influence of alcohol.  For example, NHTSA’s research indicates that “the chances are 65 out of 100″ that a driver who is straddling a center or lane marker has a blood-alcohol concentration of .10% or higher (the pre-.08% standard).

Turning with wide radius     65
Straddling center or lane marker     65
Appearing to be drunk     60
Almost striking object or vehicle     60
Weaving     60
Driving on other than designated roadway     55
Swerving     55
Slow speed (more than 10mph below limit)     50
Stopping (without cause) in traffic lane     50
Drifting     50
Following too closely     45
Tires on center or land marker     45
Braking erratically     45
Driving into opposing or crossing traffic     45
Signalling inconsistent with driving actions     40
Stopping inappropriately (other than in lane)     35
Turning abruptly or illegally     35
Accelerating or decelerating rapidly     30
Headlights off     30

Just to reenforce this as a mathematical science thoroughly impressive to juries, NHTSA further claims — and officers are taught — that there is also a quick-and-easy formula for multiple symptoms:  “When two or more cues are seen, add 10 to the highest value among the cues observed”.

Of course, if these suspiciously precise figures are to be believed, then almost half of the folks who tailgate you every day are drunk – and almost half of the time you don’t brake smoothly you are, too.  Further, only 60% of drivers “appearing to be drunk” to the officer actually are. (Query:  How does a driver “appear to be drunk” to an officer following 100 feet behind? Slurred speech?  Alcohol on his breath?)  And speeding — one of the most common reasons for pulling DUI suspects over — is not even on the list. 

Science marches on…

Yes, you can be arrested in many states for “sleeping under the influence” in your parked car — on the shaky theory that you were probably driving some time earlier and were probably intoxicated at the time.  

There are two issues involved.  First, the legal issue:  Although under the influence, was the individual driving?  The various states have slightly different definitions of what constitutes “driving”, but they usually involve “operating” or being “in physical control” of a motor vehicle.  Second, the public policy issue:  Shouldn’t we encourage conduct that seeks to avoid danger to the public and/or commission of a crime?

Looking at the legal issue first, how can a person be “operating” or “in physical control” of a vehicle if he is asleep?  Well, in their stampede to “get tough” on drunk drivers, many states have stretched their definitions of “driving” to the breaking point — and beyond.  In State v. Lawrence, 849 S.W.2d 761, for example, the Tennessee Supreme Court held that a defendant who was asleep on the driver’s side of his parked vehicle with the keys in his pants pocket was in “physical control” within the meaning of the DUI statute — and thus guilty of drunk driving.  Similarly, in State v. Peterson, 769 P.2d 1221, the Montana Supreme Court held that the defendant was in “actual physical control” of the vehicle when he was found parked off the roadway, asleep in the driver’s seat with the keys in his pocket.  There are, fortunately, other courts which have held that this does not constitute driving.  See, for example, State v. Bugger, 483 P.2d 404 (Utah).

Most courts do not address the second issue:  legalities aside, as a public policy matter should such conduct be punished?   This is possibly because judges may feel  that is a matter for the legislature to address.

Question:  If an individual begins driving home from a restaurant and realizes he has had too much to drink, what do we want him to do — if we are truly interested in preventing an accident? 

Answer:  We would like to see that person pull over and sleep it off.

Question:  How do we encourage that conduct? 

Answer:  We don’t punish him for doing it.

Question:  Then why do police continue to arrest and the courts to convict these folks for drunk driving?

Answer:  Because they can.

Despite the rhetoric about preventing traffic fatalities, the real concern seems increasingly focused on punishment rather than prevention.  But consider the holding of an Arizona court in reversing a DUI conviction:

The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control.  To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway.  Arizona v. Zavala, 666 P.2d 456.

Makes sense.  Of course, angering MADD is not a good way to get reelected to the bench.

Let’s say that after dinner — and too many drinks — at a friend’s house, your husband is driving you home.  He suddenly feels intense pain shooting up his left arm, swerves off the road and loses consciousness.  You jump behind the wheel and start driving at high speed for the hospital.  As you pull up to the emergency center, a police car follows in after you, its lights flashing.  Shortly afterwards, you are arrested for drunk driving.

Guilty?

Maybe — and maybe not.  The courts, as is common in DUI cases, are in considerable disagreement.  Some states recognize the affirmative defense of necessity, or as it is sometimes called, the choice of evils defense.  As one New Jersey judge observed, “When, as here, there is a collision between law and common sense, this court should exert its best effort to vindicate common sense.  Our institutional legitimacy depends on our succeeding in that endeavor.”  State v. Fogarty, 607 A.2d 624.

Other courts prefer law over common sense in DUI cases, or severely limit the defense’s application.  In People v. Slack, 258 Cal. Rptr. 702, for example, the defendant was fleeing across the Mexican border from Tijuana police who had beaten him in the past.  The court held that he had not adequately shown that there was no alternative to drunk driving, or that the emergency was not the result of his own conduct.  More to the point, the court said that “the risk of vehicular destruction is so great that even the risk of physical assault to the intoxicated person pales in comparison.”

Continuing the inconsistencies, some courts permit the defense in criminal cases — but, illogically, not in license suspensions.  As another California court has held:

(The) relevant statutes and their clear public policy preclude the application of the necessity defense to administrative hearings….In contrast to criminal prosecution for drunk driving, the administrative remedy involving the suspension of driver’s licenses was designed to be a “swift and certain” method of deterring such conduct. 

However, yet another California court had earlier come to the opposite conclusion, saying that “It is undeniably true that under any reasonable concept, right and justice would be defeated by the erroneous suspension of (his) driver’s license.”  Curtin v. DMV, 123 Cal. App.3d 481.

To muddy the waters further, there is a separate but related defense of duress which is often confused with the necessity defense. 

So….Was driving your husband to the hospital a criminal act?  As is often the case, that may depend upon what state you were in, or what cases the judge chooses to follow.

The following is from Mothers Against Drunk Driving’s official website:

To truly reduce drunk driving, it takes law makers, law enforcement and the judicial system working in concert.  That’s why MADD’s Court Monitoring Program trains volunteers to observe and gather data on DUI/DWI court proceedings, including arraignments, pretrial hearings, trials and sentencing…

But there’s more to court monitoring than collecting data — there’s MADD’s presence in the courtroom.  The presence of court monitors sends a clear message to judges, prosecutors, defense lawyers and court staff: MADD cares about what happens and the courts are being held accountable. 

Big Mother is watching.

From the Someone-Has-To-Go-Down Department:

Driver + Sandwich = Passenger DUI

Carlisle, PA (CBS/AP) A Pennsylvania man is fighting a DUI charge with an unusual twist: He was in the passenger seat at the time.

A state trooper says he pulled over a car after it swerved from a turning lane into the travel lane of a highway in Carlisle on Dec. 26. When he approached the vehicle, the trooper says the driver was holding a sandwich in both hands ? and the passenger, Derek Randall Pittman, told him he had been steering while his friend took a bite, reports the Patriot-News in Harrisburg.

Police say the driver passed a breath test, but the passenger had a blood-alcohol content nearly three times the legal limit for driving in Pennsylvania.

So much for designated drivers…