Archive for September, 2006

Just Another Drunk Driver

Thursday, September 28th, 2006

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.)

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Through a Glass Darkly: No Jury Trial in DUI Cases?

Tuesday, September 26th, 2006

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."

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Through a Glass Darkly

Sunday, September 24th, 2006

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….

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DUI Entrapment

Thursday, September 21st, 2006

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”.

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Not Guilty by Reason of Alcoholism?

Monday, September 18th, 2006

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?

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