Archive for February, 2007

From Manslaughter to Murder in 5 Easy Steps

Tuesday, February 27th, 2007

Q. I wish I could get this drunk driver for murder, not just vehicular manslaughter.
A. You’re the prosecutor: You can charge him with anything you want.

Q. But how would I prove the mental state for murder, malice?
A. As you know, malice usually means there’s an intent to kill. But the law says you can imply malice.

Q. OK, but imply it from what?
A. “It is implied when…the circumstances attending the killing show an abandoned and malignant heart”. [Calif. Penal Code sec. 188]

Q. Yeah, but what the heck is “an abandoned and malignant heart”?
A. Our Supreme Court says it’s when someone “does an act with a high probability that it will result in death and does it with a base antisocial motive and a wanton disregard for human life”. [People v. Washington, 62 Cal.2d 777 (1965)]

Q. I don’t know if that’s any easier to prove. “High probability” a DUI will result in death? Anyway, the guy was just drunk: How can I prove “base antisocial motive” and “wanton disregard for human life” from that?
A. Simple: Don’t prove it, just imply that, too — from the defendant’s knowing that DUI is dangerous. [People v. Watson, 30 Cal.3d 290 (Cal.1981)]

Q. You mean all I’ve got to do is prove he knew drunk driving is dangerous, and I’ve got malice?
A. We call it a “Watson murder”.

Q. That’s a long way from “high probability it will result in death”.
A. Yeah, that sort of got swept under the rug.

Q. But how do I prove he knew it was dangerous?
A. Like everything else, imply he knew it. Show he’s got a prior DUI conviction [People v. McCarnes, 224 Cal.Rptr. 846 (Cal.App. 1986)] or he’s been to Alcoholics Anonymous [People v. Brogna, 248 Cal.Rptr. 761 (Cal.App.1988)].

Q. But what if the guy isn’t an alcoholic and has never been convicted before?
A. Just find someone who once told him drunk driving was dangerous.

Q. What if we can’t find someone….
A. Has he ever attended a driver education class? They usually tell them that DUI is dangerous. [People v. Murray, 275 Cal.Rptr. 498 (Cal.App. 1990)].

Q. But doesn’t everybody know DUI is dangerous?
A. Of course.

Q. Then doesn’t everybody have malice if they drive under the influence?
A. Now you’re getting it.

Q. Well, if proving murder in a DUI case is that easy, why not go for the death penalty?
A. They already tried it in a North Carolina case, but the jury went for life without parole instead. We’re working on it…


Note: Judges in California now make anyone convicted of DUI sign a statement saying they understand that DUI is dangerous. This is done so that he can be prosecuted for murder if he is later involved in a DUI-related fatality accident, regardless of the facts. In other words, despite what the laws say, the crime becomes murder rather than manslaughter if he signed a piece of paper saying “DUI is dangerous”.

Another triumph of form over substance….

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He Who Is Without Sin…

Sunday, February 25th, 2007

For those who think my post a couple of days ago ("Who Will Guard the Guardians?") was just an aberration, the following are a few random news stories from a quick Google search for DUI arrests — all within just the past week:

"Hartford Officer Arrested in Vegas for Drunk Driving"
"St. Petersburg Police Officer Arrested for DUI"
"N. Ky. Police Chief Arrested on DUI Charge"
"Another Officer Faces DUI"
"Warsaw Police Chief Arrested for DUI"
"Police Officer Among Those Arrested for DUI Over Weekend"
"Prosecutor Fired After Car Wreck, DUI Arrest"
"Police Report: Off-Duty Deputy Arrested for DUI"

Do as I say, not as I do…

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Who Will Guard the Guardians?

Thursday, February 22nd, 2007

From our Double Standards department: 

Springfield, Ill. Feb. 18 ” When Judge Steven Nordquist agreed to a breath test during his DUI arrest last summer, he became an anomaly among his colleagues on the bench.

The judge from Winnebago County appears to be the first in Illinois to blow, providing evidence of his guilt, when stopped by police on suspicion of driving under the influence of alcohol. At least four other Illinois judges stopped for DUI refused the test.

Two of these judges also refused to cooperate with field sobriety tests. Another judge, charged with DUI in December, refused both breath and field sobriety tests.

Welcome to a crash course in Illinois DUI law. And who knows the law better than a judge?…

John Karns, an appellate court justice from southern Illinois, refused to blow when he was arrested for DUI in 1978. He threatened to fight police officers and “challenged one or more of the police personnel to engage in such fighting,” the JIB said.

The next morning, Karns and his lawyer seized all police documents pertaining to his arrest. The JIB said he and his lawyer destroyed or suppressed them, and that he was never prosecuted…

Ad nauseum…..

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How to Fool a Breathalyzer

Tuesday, February 20th, 2007

Want to trick that breath machine into a false reading? Not that difficult: just vary your breathing pattern.

As I’ve indicated in earlier posts, these breath machines which determine guilt or innocence in DUI cases are not exactly the reliable devices that law enforcement would have us believe. Yet another example of that unreliability is the fact that the results will vary depending upon the breathing pattern of the person being tested. This has been confirmed in a number of scientific studies. In one, for example, a group of men drank moderate doses of alcohol and their blood-alcohol levels were then measured by gas chromatographic analysis of their breath. The breathing techniques were then varied.

The results indicated that holding your breath for 30 seconds before exhaling increased the blood-alcohol concentration (BAC) by 15.7%. Hyperventilating for 20 seconds immediately before the analyses of breath, on the other hand, decreased the blood-alcohol level by 10.6%. Keeping the mouth closed for five minutes and using shallow nasal breathing resulted in increasing the BAC by 7.3%, and testing after a slow, 20-second exhalation increased levels by 2%. “How Breathing Techniques Can Influence the Results of Breath-Alcohol Analyses”, 22(4) Medical Science and the Law 275. For another study with similar findings, see “Accurate Measurement of Blood Alcohol Concentration with Isothermal Breathing”, 51(1) Journal of Studies on Alcohol 6.

Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington has gone farther and concluded:


By far, the most overlooked error in breath testing for alcohol is the pattern of breathing….The concentration of alcohol changes considerably during the breath…The first part of the breath, after discarding the dead space, has an alcohol concentration much lower than the equivalent BAC. Whereas, the last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. The last part of the breath can be over 50% above the alcohol level….Thus, a breath tester reading of 0.14% taken from the last part of the breath may indicate that the blood level is only 0.09%. 9(6) The Champion 16 (1985).


Many police officers know this. They also know that if the machine contradicts their judgement that the person they arrested is intoxicated, they won’t look good. So when they tell the arrestee to blow into the machine’s mouthpiece, they’ll yell at him, “Keep breathing! Breathe harder! Harder!” As Professor Hlastala has found, this ensures that the breath captured by the machine will be from the bottom of the lungs, near the alveolar sacs, which will be richest in alcohol. With the higher alcohol concentration, the machine will give a higher — but inaccurate — reading.

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The Insanity of DUI Laws

Sunday, February 18th, 2007

Albert Einstein once defined insanity as "Doing the same thing over and over again and expecting different results"…

Elevenfold Increase in Number Imprisoned for DUI

Columbus, Ohio. AP – Yearly incarcerations for drunken driving convictions have increased elevenfold in the past decade, the state prisons department reported.

Judges sentenced 465 drunken drivers to prison last year, up from 38 in 1997, when the Ohio Department of Rehabilitation and Correction began tracking DUI offenders. Tougher enforcement and increased penalties in state law contributed to the trend. Also, Ohio dropped the legal blood alcohol limit to 0.08 in 2003, from 0.10, putting more drivers in violation…

The following summary of DUI-related traffic fatalities for the same decade, compiled by the National Highway Traffic Administration, is from MADD's website:

1997 16,711
1998 16,673
1999 16,572
2000 17,380
2001 17,400
2002 17,524
2003 17,105
2004 16,919
2005 16,885
2006 (not yet available)

In the past decade, Ohio (as most states) has increased the number of citizens sent to prison by 1100%. During that same period of time, there has been no reduction in traffic fatalities. (Arguably, the DUI-related fatality figures would have increased, as factors such as seat belts, air bags and improved vehicle construction have lowered fatalities in traffic accidents.)

Is it possibly time to consider an alternative approach?

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