DUI BLOG

The following is a news story from the Vincennes (Illinois) Sun-Times a couple of years ago:

Lawrenceville, Ill. Sepember 17, 2004 – The Lawrence County Board unanimously approved a three-year contract with union members of the sheriff's department that call for a pay raise and clarifies the blood-alcohol content an on-duty officer can have and continue to work Under terms of the contract, a deputy or other department employee can have a BAC level of up to .04 percent and remain on duty… Board member Gene Hays said he understood some people would oppose the .04 percent BAC level as too lenient.  But he maintained there has to be a margin allowed for errors in testing; if the board tried to establish a zero-level standard, he said it would not stand up in court.

Interesting double standard.  Drivers under 21 are subject to .01% "zero tolerance" laws in every state in the country — but cops with a .04% level can arrest them…. Meantime, MADD is busily pushing state legislatures to lower the adult level from .08% to .05%.  Also of interest:  prosecutors across the country tell juries that anyone over .05% is "probably" impaired. More interesting:  The County Board has apparently been told by sheriffs that "there has to be a margin allowed for errors in testing" — at least for sheriffs.  That's some margin: in a .08% case, that would be a 50% error!  A suspect who tested .11% would actually be innocent.  Funny how cops never testify to that in court…

(Thanks to Sam Peter Hopp and to E. Thomas Kemp, on whose blogsite the article appears.)

I ran across this news story just a few hours after writing the post yesterday The Death Penalty for DUI?:

MADD Asks for Murder Charge for DUI Suspect

Rancho Cucamonga, Calif.  Jan. 27  -  The San Bernardino County chapter of Mothers Against Drunk Driving said Thursday it will lobby the district attorney to file a murder charge against a suspected drunken driver accused of killing a father-to-be.

Prosecutors charged Jose Ramon Verdin with drunken driving, vehicular manslaughter and other crimes Tuesday in connection with the death of 33-year-old Ralph Napravnik… "It sounds like he could have prevented this fatality," MADD representative Joseph Alarcon said. "He could have chosen not to drink and drive, and a father would be alive today."

Napravnik was riding his motorcycle near his Ontario home on Saturday when he collided with a Cadillac driven by Verdin, police said.  His blood alcohol was 0.11 percent about four hours after the collision, authorities said. The legal limit is 0.08.

California passed a law in 2004 requiring that drunken drivers be notified in writing of the dangers of their conduct when they plead guilty to charges in court.  The idea is that if they subsequently kill someone while driving drunk, they cannot argue they did not know their conduct is inherently dangerous to human life, making it much easier for prosecutors to charge and convict them for murder. Verdin signed such paperwork when he pleaded guilty in 2005 to his first DUI, court records show…

Deputy District Attorney Charles Feibush said he has not ruled out filing a murder count, but such a weighty decision will not be made until prosecutors have a full set of reports on the crash from the California Highway Patrol. Alarcon, who learned of Verdin’s case on Thursday, said it appears to be exactly the sort of case legislators envisioned when they passed the law requiring the language on the court paperwork. "That bill has blood on it," he said. "People had to die for that language to be included on the plea agreement forms."

California’s drunken driving laws are terribly complex, filling more than 40 pages in the state’s vehicle code.

In other words, this guy may be facing murder charges rather than manslaughter because he signed a document acknowledging the obvious – that drunk driving is dangerous.  No signature, no murder.  And that’s our criminal justice system at work.

Yes, the death penalty. In a drunk driving case. In these United States. For murder…… No, not involuntary manslaughter. Not vehicular homicide. Murder. And first-degree murder. As in pointing a gun at someone and pulling the trigger. MADD has been so successful in their political pressure campaigns that they’ve actually gotten some courts and legislatures to recognize a new type of crime: DUI murder.

Wait a minute, you say. I thought you had to intend to kill a person before it’s murder. You have to premeditate and that kind of thing, right? Well, yes and no. Each state is a little different, of course, but most follow similar laws. And those laws generally break a homicide (”the killing of another human being”) into different categories. The first is excusable homicide — where, because of self-defense or other justification, the death is not considered a crime. Next is manslaughter — basically, a killing that is not murder. There are usually two kinds of manslaughter: voluntary and involuntary. Voluntary manslaughter is sometimes called a killing in the “heat of passion”: you lacked the time or ability to meaningfully reflect on the act. Involuntary manslaughter is an unintentional homicide: you didn’t mean to do it, but you caused a death by your negligence or recklessness.

When a drunk driver causes an accident in which someone is killed, he is usually going to be facing involuntary manslaughter charges. Some states use different terms, such as “vehicular manslaughter” or “vehicular homicide”. Either way, the death was unintentional, but it was caused by the driver’s negligent or reckless conduct.

And then there’s murder. That’s what you see on TV and read about in the papers: someone plans to kill someone else and, in cold blood, takes his life. But just to complicate things, in most states there are two kinds of murder: first degree and second degree. Murder in the first degree usually requires meaningful premeditation: you thought about it, planned it, carried it out. Second degree murder only requires a mental state known as malice. What is malice? Well, usually it means the intent to kill someone: you intended to kill that person, but it may have happened so quickly that you never really thought it out. Intent, but no premediation.

So where does DUI fit into all of this? It seems pretty obvious that it belongs in the “involuntary manslaughter” category — an unintentional accident but with negligence or recklessness. However…. This idea of “malice” is pretty vague. Very vague. Actually, it can pretty much mean whatever you want. Perfect, really, for a group like MADD looking for new ways to “get tough ” on drunk drivers.

A prosecutor in California came up with a bright idea a few years ago. He simply ignored the vehicular manslaughter statute and charged a drunk driver with second-degree murder. And, DUI being a politically unpopular crime, actually managed to convict him. The defendant appealed, saying the prosecution can’t just invent new crimes: he has to charge the offense specified by the legislature. The California Supreme Court disagreed, saying that he could be charged and convicted of murder if he acted with malice — that is, if he “does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life”. Base antisocial motive? What’s that? The Court tried to clarify:

One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he must operate a motor vehicle, thereby combining sharply impaired physical and mental facilities with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.   People v. Watson, 30 Cal. 3d 290 (1981)

Well, the problem is that the Court was pretty much describing any drunk driver. Recognizing that this opened the gates a bit wide, the courts have tried to limit over-zealous prosecutors by requiring a more serious type of malice. They came up with “conscious indifference”: A drunk driver can be charged with murder if his state of mind was, “I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed.” Still pretty vague. Doesn’t alcohol itself cause indifference? And how do you know what’s in someone’s head when he’s drunk? Well, it turns out that you can now prove malice if you can show that the defendant knew drinking and driving could be dangerous. Of course, everyone knows that, so…

So where does that leave us? Any DUI defendant involved in a fatality accident who knows drunk driving is dangerous can be charged with murder? Apparently so. In People v. Murray, 275 Cal.Rptr. 498 (1990), a California court upheld a DUI murder conviction where the prosecution offered evidence that the defendant had attended a DUI education class and told someone he had learned a lot from it. This was enough to show that he was aware that drunk driving was dangerous and so he acted with “malice”. And, thus, murder.

With this kind of legal reasoning, it’s only a matter of time before we’re looking at the death penalty in a DUI case, right? Well, a few years ago a jury in Winston-Salem, North Carolina, came back with a first degree murder conviction in a DUI case involving a traffic accident with two deaths. They recommended a sentence of life without the possibility of parole. The prosecutor had asked for the death penalty.

The single most important factor in whether an individual will be arrested for driving under the influence (DUI) is not the evidence. It is the individual human differences of the officer himself. A study by the National Highway Traffic and Safety Administration [U.S. Department of Transportation Report No. H5-801-230] points out the effect of these differences on an officer’s observations and conduct in the field:

The officer’s age and experience play a role in his alcohol-related arrest decisions. Younger officers, and those with relatively few years of seniority, tend to have a more positive attitude toward alcohol-related enforcement and make more arrests on that charge than do older officers. This result was found to hold true regardless of the type of department in which the officer serves or the specific type of duty to which he is assigned.

The officer’s personal use of alcohol is inversely related to his level of alcohol-related enforcement. Patrolmen who drink make significantly fewer arrests than those who do not, and those who drink frequently make significantly fewer arrests than those who use alcohol only occasionally.

Lack of knowledge concerning the relationship between alcohol and intoxication is widespread among police officers and imparts a negative influence on alcohol-related enforcement. Most officers underestimate—often by a wide margin—the amount of alcohol a suspect would have to consume in order to achieve the statutory limit of blood-alcohol concentration.

Specialized training has a strong positive influence on alcohol-related arrests. Patrolmen who have received instruction in the operation of breath testing devices and/or in alcohol-related enforcement—particularly in municipal departments—were found to lack this specialized training. Specialization in duty assignment can also enhance alcohol-related enforcement.

Patrolmen assigned to traffic divisions, in particular, produce higher arrest rates than those charged with general patrol duties. Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests.

Weather conditions also affect alcohol-related arrests. There is encouraging evidence that foul weather has a positive influence on the attitude of many officers; they are more appreciative of the risk posed by an alcohol-related suspect when driving conditions are hazardous, and are less likely to avoid the arrest when those conditions prevail.

The suspect’s attitude can have a strong influence on the arrest/no arrest decision. If the suspect proves uncooperative or argumentative, a positive influence for arrest results. Conversely, the likelihood of arrest decreases when the suspect seems cooperative.

The suspect’s race is a key distinguishing characteristic in alcohol-related cases. The officers surveyed—the overwhelming majority of whom were white—reported releasing significantly more nonwhite suspects than they arrested. The data do not suggest that this reflects a greater tendency to exercise discretion when dealing with nonwhite drivers. Rather, the officers seem more willing to initiate an investigation when the suspect is not of their own race.

Suspect’s age is another distinguishing characteristic of these cases, and patrolmen reported releasing significantly more young suspects than they arrested. This appears to stem from two distinct causes. First, young officers exhibit more sympathy for young suspects, i.e., seem less disposed to arrest a driver of their own age group. Second, older officers seem more willing to stop young suspects, i.e., are more likely to conduct an investigation when the driver is young, even if the evidence of alcohol-related violation is not clear.

Suspect’s sex also plays a role in the arrest/no arrest decision. Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming."

Most DUI cases depend largely upon two variables: the officer and the machine. As has been discussed repeatedly in past posts, the machine is an unknown and unreliable variable. As the federal study indicates, so is the officer.

As I’ve commented repeatedly in the past, roadblocks ("sobriety checkpoints") are (1) unconstitutional, (2) ineffective at catching drunk drivers, and (3) used primarily to raise revenue for local municipalities…

DUI Checkpoint Impounds 32 Vehicles

Escondido, CA. Jan. 13 – Escondido police impounded 32 vehicles and arrested four people at a drunken driving checkpoint, a lieutenant said Saturday.

Police withheld the names of three people arrested on suspicion of drug possession and one person booked on suspicion of drunken driving during the operation at El Norte Parkway and Ash Street between 6 p.m. and midnight Friday.

Of about 1,600 vehicles that passed through the checkpoint, 931 drivers were screened and 82 were pulled aside because they could not produce a license or were suspected of being under the influence, according to a lieutenant. Police impounded 32 because the driver had no license or a suspended or revoked one, police said.

In some cases, those vehicles can be sold to satisfy fines and impound fees. Police also ticketed 53 drivers for various offenses.

1600 citizens stopped…1 DUI arrest…and a lot of money from tickets and impounds for the City of Escondido.

It is against the law to drive while under the influence of marijuana. It has always been assumed that cannabis, like alcohol, impairs the perception, coordination, reflexes and judgment necessary for the safe operation of a motor vehicle. And, of course, there have been governmental studies addressing the question: Does marijuana impair driving?

Interestingly, however, the findings do not necessarily support popular opinion…. On the one hand, the California Department of Justice has found that marijuana undoubtedly impairs psychomotor abilities that are functionally related to driving and that driving skills may be impaired, particularly at high-dose levels or among inexperienced users. "Marijuana and Alcohol: A Driver Performance Study", California Office of Traffic Safety Project No. 087902 (Sept. 1986).

Contradicting these conclusions, however, are two federal studies. The U.S. Department of Transportation conducted research with a fully interactive simulator on the effects of alcohol and marijuana, alone and in combination, on driver-controlled behavior and performance. Although alcohol was found consistently and significantly to cause impairment, marijuana had only an occasional effect. Also, there was little evidence of interaction between alcohol and marijuana. Accidents and speeding tickets reliably increased with alcohol, but no marijuana or combined alcohol-marijuana influence was noted. "The Effects of Alcohol on Driver-Controlled Behavior in a Driving Simulator, Phase I", DOT-HS-806-414.

A more recent report entitled "Marijuana and Actual Performance", DOT-HS-808-078, noted that "THC is not a profoundly impairing drug….It apparently affects controlled information processing in a variety of laboratory tests, but not to the extent which is beyond the individual’s ability to control when he is motivated and permitted to do so in driving". The study concluded that:

An important practical objective of this study was to determine whether degrees of driving impairment can be actually predicted from either measured concentration of THC in plasma or performance measured in potential roadside "sobriety" tests of tracking ability or hand and posture stability. The results, like many reported before, indicated that none of these measures accurately predicts changes in actual performance under the influence of THC…

The researchers found that it "appears not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations of THC and THC-COOH determined in a single sample".

Note: "THC" stands for Delta-9-tetrahydrocannabinol, which is the intoxicating ingredient in marijuana. THC is fairly quickly converted by the body into inert metabolites, which can stay in the body for hours or even days. It is these metabolites that police blood tests in DUI arrests detect and measure. In other words, (1) marijuna may not impair driving ability at all, and (2) the blood "evidence" only measures an inactive substance which may have been there for days.

MADD has apparently developed a separate standard for politicians and police in its War on Drunk Driving:

MADD Supports OC Police in DUI Non-Arrest

Ocean City, MD.  Jan. 12  – Mothers Against Drunk Driving praised the Ocean City Police Department on Thursday for how officers handled the Oct. 29 traffic stop and non-arrest of Delaware State Rep. John C. Atkins.

MADD representatives were particularly quick to support decisions made by Pfc. Douglas A. Smith, OCPD’s toughest DUI enforcement officer, who along with trainee Natalie R. Smolko, performed the stop.

OCPD came under fire when news broke that Smith and Smolko stopped Atkins, who was allegedly driving erratically and blew a .14 in his preliminary breath test, but decided against making a DUI arrest…

After Atkins blew nearly double the .08 legal limit, officers did conclude that he was unfit to re-enter traffic. He then contacted a friend, who drove him and his wife to their Millsboro home.

Atkins was arrested hours later by Millsboro police and charged with offensive touching — a charge to which he pleaded guilty in December — after a dispute with his wife.

Many in the community believed Atkins, who flashed his legislator ID to police during the stop, received preferential treatment in being let off with a warning…

Though the breath test result has been the sticking point in raising doubts about officers’ handling of the incident, MADD Eastern Shore Victim Advocate David Elzey praised the proper use of the tool.

"He administered the (test) after he had decided not to make an arrest and he made the right call by not letting him continue driving," Elzey said. "He probably saved lives by not letting him drive home."

MADD representatives expressed absolute faith in Smith, who lost his mother-in-law to a drunken driver and who was himself struck by one in another incident…

"He’s had a couple hundred DUI arrests in a few years," Elzey said. "Doug Smith has done so much. We have faith he knows what he’s doing."

Isn’t faith a wonderful thing?  If only they had that much faith in the Constitution…

For many years now I’ve written and lectured extensively on drunk driving litigation –on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing. In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases.

So who cares about people accused of drunk driving and their constitutional rights?

You should care. The importance of what is happening in DUI law and procedures can be summarized in one word: precedent.

We are a nation of laws, more specifically, the common law inherited from the British legal system. Unlike most nations, which use some version of the French civil law where laws are found in codes, we look to the precedent of judicial decisions interpreting statutory law. When a court looks at the facts in a specific case, it applies not only statutes but decisions in appellate court cases to determine what the law is.The genius of this common law system of precedent is its flexibility; its flaw is what many call "judicial legislation".

The flaw becomes particularly noticeable when dealing with politically unpopular subjects. And few topics are as politically "incorrect" as drunk driving. Judges are, after all, politically sensitive animals who want to be reelected. Put another way, it is very easy to rule in favor of the prosecution in DUI cases — particularly when powerful pressure groups like Mothers Against Drunk Driving (annual revenues of over $51 million) are so influential in elections and in legislatures. There are few advocates for the accused or the Constitution during election campaigns.

This judicial attitude is not limited to judges with an eye on re-election. A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights. To mention but a few examples:

Michigan v. Sitz. The Court held that sobriety roadblocks were permissible — that the admitted violation of the Fourth Amendment was "outweighed" by the government’s interest in combating drunk driving.

South Dakota v. Neville. The Fifth Amendment right against self-incrimination was held inapplicable in drunk driving cases (refusing to submit to testing).

Blanton v. North Las Vegas. Even though punishable by six months in jail, fines and diver’s license suspension, there is no Sixth Amendment right to a jury trial in a drunk driving case.

California v. Trombetta. Although police normally have to save evidence, they do not have to save breath samples in DUI cases (even though it is easy and inexpensive to do so).

So…we have seen a steady flow of appellate decisions at all levels taking away the constitutional rights of those accused of DUI. Again, so what?

Again, precedent: What happens today to a citizen accused of DUI can happen tommorrow to a person accused of any other offense. If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, has already happened). If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of any other crime.

The danger of precedent in the DUI field is not limited to judicial decisions. Legislatures are also guilty of passing unfair and unconstitutional — but politically popular — laws. We have certainly seen a seemingly unending series of unfair and unconstitutional statutes across the country in recent years: immediate license suspensions at the police station; double jeopardy/punishment (license suspension and criminal prosecution); so-called per se laws (.08% blood-alcohol is illegal, even if sober); presumption of guilt (if .08%, presumed to be under the influence; if .08% when tested, presumed to be .08% when driving); ad nauseum. And having passed such laws relating to DUI, they are less reluctant to do so in other areas as well.

So who cares about DUI? To paraphrase, "First they came for the drunks, but I was not a drunk so I did not speak up….."

The latest half-baked weapons in the War on Drunk Driving:

Tokyo, Jan. 3  -  Japanese auto giant Toyota Motor Corp. will develop a system to stop a vehicle if it detects the driver is drunk as part of efforts to cope with a serious social problem, a report said on Wednesday.

The system, expected to become available in 2009, analyzes sweat on the palms of the driver’s hands to assess blood alcohol content and would then not allow the vehicle to be started if the reading was above safety limits, the Asahi Shimbun said. The system would also analyze the driver’s eye movement, driving performance and other factors, the Asahi said.

European automakers have developed systems that require the driver to blow into a tube attached to a vehicle to detect alcohol in the breath.  Toyota opted not to use that system as it may fail if the driver asks another person to blow into the tube, the Asahi said. Toyota rival Nissan Motor said last year it was planning similar steps.

Brilliant!  No one will ever think of wearing gloves or dark glasses…

(Thanks to William C. Head and Gary Pirosko.)

As any experienced criminal attorney knows, truth, justice and fairness can be rare commodities in our courts when dealing with a drunk driving offense. This has become such a common phenomena that I long ago gave it a label: "The DUI exception to the Constitution". When it comes to cases involving driving under the influence of alcohol or drugs, there seems to be a distinct bias in favor of "streamlining" procedures and facilitating convictions.

Cynics might suggest that this may have something to do with political considerations — with the desire of some judges to get reelected. We’ll talk about that in a moment….. In the meantime, let’s take a look at an example of what kind of thinking goes on in the judicial mind in a DUI case. In fact, let’s go to the highest court of the most populated state in the country: the Supreme Court of California.

In People v. Bransford, the Supreme Court was confronted with a defendant who was challenging his .08% conviction on the grounds that he was not permitted to offer scientific evidence of defects in the breathalyzer to the jury. Specifically, he was not permitted to offer the testimony of recognized experts that the machine’s computer was programmed to assume that there were 2100 parts of alcohol in his blood for every 1 part measured in his breath. He was also prevented by the trial judge from offering further evidence that this 2100:1 ratio was only an average — and that the actual ratio varied widely from person to person, and within one person from moment to moment. (If, for example, a suspect’s ratio had been 1300:1 at the time he blew a .10% on the machine, his true blood-alcohol would have actually been .06% — that is, he would have been innocent.)

The Supreme Court of California affirmed the conviction, ruling that such scientific facts are irrelevant: the law was written in a way that concerned the amount of alcohol in the blood "as measured on the breath". In a display of either twisted logic or ignorance of the scientific facts involved, the Court simply said that the crime consisted of the amount of alcohol in the blood — but only as measured on the breath. In other words, although the crime is having .08% alcohol in the blood, you can’t offer evidence about the amount of alcohol actually in the blood! An amazing decision.

More interesting, perhaps, is language in the opinion — an opinion which gives us a window into the justices’ minds. In what must have been a complete failure to appreciate the significance of what they were writing, the Court justified its ruling in a rather frank — and incredible — admission of its hidden agenda:

It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges. People v. Bransford, 8 Cal.4th 894 (1994).

In other words, barring an accused from defending himself with scientific truth serves justice by making it easier to get convictions. Are all judges oblivious to the truth? Not entirely. One judge, Justice Joyce Kennard, dissented from the majority opinion in Bransford. She wrote in a separate opinion: "The majority…has on its own created the new crime of driving with alcohol in one’s breath."