DUI BLOG

Announcing an important new advance in automotive engineering:

Drunk Driving Alert On CARWINGS Navigation Systems

TechNews, June 28 – Nissan Motor Co., Ltd. will incorporate a message alert against drunk-driving into its CARWINGS (HDD) navigation systems…

The updated CARWINGS navi systems will display the drunk-driving alert when the ignition is turned on to remind the driver of the hazards of drinking and driving…

The alert “Do not drive after drinking!” appears automatically for about five seconds on the navigation panel between the hours of 17:30 and 05:00 at the start of the ignition. In the daytime i.e. between 05:00 and 17:30 hours, the display message reads “Let’s continue safe driving today”.

That should put an end to this scourge.  Imagine the stampede in Washington and state legislatures once MADD hears about this.

Another day in the trenches…

OFFICERS ARREST ONE SUSPECTED DUI DRIVER DURING CHECKPOINT

Santa Rosa, CA.  June 24  –  Officers arrested one driver on suspicion of driving under the influence during a DUI and driver license checkpoint Friday night in Santa Rosa.

According to Santa Rosa police Sgt. Don Hasemeyer, 968 vehicles passed through the checkpoint, which was set up on Farmers lane near Sonoma Avenue.

One person was arrested on suspicion of DUI, Hasemeyer reported.

A grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration provided funding for the program.

But, of course, the idea isn’t to catch drunk drivers, is it?  It’s to create “shock and awe”.  So…another successful roadblock.

The recent Duke University rape case merely highlighted what any criminal defense attorney today knows to be an everyday fact: prosecutors are increasingly more interested in their “win stats” and advancing their careers than in seeking justice.  If nothing else, this case brought an ugly reality  — one pervasive in the DUI arena — to the light of day:

BEYOND THE LAW

Lots of Prosecutors Go Too Far; Most Get Away With It

Washington Post.  June 24 – It was an extraordinary scene when Michael B. Nifong, the district attorney in Durham, N.C., took the stand to defend his law license after his failed crusade to convict innocent Duke University lacrosse players of gang rape. He had no more success with his own defense. After being disbarred for “dishonesty, fraud, deceit and misrepresentation,” he was suspended from his job last week and now faces a possible lawsuit in civil court.

What’s most remarkable about the whole scene, though, is how rare it is. Nifong’s misconduct was hardly unusual: Some of the most high-profile cases in history have involved strikingly similar acts of prosecutorial abuse. But instead of being punished, the worst violators are often lionized for their aggressive styles — maybe even rewarded with a cable television show…

This abuse occurred because the critical safeguard of prosecutorial discretion — the decision whether to pursue a case — didn’t protect the suspects. Despite what you see on television, the chances of being convicted in a criminal case are extremely high. Grand juries are said to be willing to “indict a ham sandwich,” and it’s not uncommon for prosecution offices to have conviction rates of 90 percent or higher. Some prosecutors grow callous and cavalier about their role. When told that he had secured the death penalty against an innocent man, a Texas prosecutor once reportedly boasted that “any prosecutor can convict a guilty man; it takes a great prosecutor to convict an innocent man.”

Drunk driving cases are a favorite target for this type of unethical zealotry.  The simple fact is that a District Attorney needs to get reelected, and this usually requires high conviction rates in his office — and an endorsement from Mothers Against Drunk Driving for being “tough on drunk drivers”….whatever it takes. 

(Thanks to Brian Leininger.)

As I’ve written previously, there are “lies, damned lies and statistics”.  And then there are the press releases from Mothers Against Drunk Driving. 

The latest release touts the initial legislative success of their newest miracle cure, ignition interlock devices – a cure which MADD recently announced with great fanfare would ”literally wipe out drunk driving in the United States”.

MADD’s Campaign to Eliminate Drunk

Driving Gains Momentum

Legislative victories on alcohol ignition interlocks in Arizona and Illinois applauded as new national data show drunk driving fatalities on the rise

WASHINGTON, June 21, 2007:  Mothers Against Drunk Driving (MADD) announced significant state legislative victories in Arizona and Illinois that mandate alcohol ignition interlocks for all convicted drunk drivers, moving one step closer to its goal of a drunk-driving free America. The legislative progress is part of a bold new offensive in the war against drunk driving — MADD’s Campaign to Eliminate Drunk Driving, launched in November 2006.

“Our vision of eliminating drunk driving is one step closer to becoming a reality,” said MADD National President Glynn Birch. “As part of MADD’s Campaign to Eliminate Drunk Driving, we will continue to work nationwide until every state does what Arizona and Illinois have done.”..

MADD’s aggressive legislative strategy aims to strengthen drunk driving laws in all 50 states. Last month, the Arizona legislature and Governor took a bold step for public safety by mandating alcohol ignition interlocks for all convicted drunk drivers…

Funny, the MADD press release didn’t mention certain developments a week earlier in Arizona:

House Votes to Repeal Breath-Test Law

Phoenix, Ariz.  June 15  –  The Arizona House voted overwhelmingly Thursday to repeal a new requirement forcing first-time drunken driving offenders to install breath-testing ignition interlocks on their vehicles…

The new interlock requirement, signed into law nearly a month ago, hasn’t yet taken effect.

 

The 54-1 vote by the House sends the bill to the Senate. ..

As I’ve indicated repeatedly in the past, DUI roadblocks (or to use the more politically correct term, “sobriety checkpoints”) are proven to be ineffective and are used primarily as a dragnet to raise revenue from citations for traffic, license/registration and equipment violations.  Law enforcement agencies are finally ending the pretense that roadblocks are effective at catching drunk drivers (the basis for the Supreme Court upholding this Fourth Amendment violation) but are now justifying them as ”deterrence” (i.e., frightening people). 

Sobriety Roadblocks

They’re praised as a deterrent but don’t yield the most arrests

Mechanicsville, VA.  June 17  –  It was Friday, the opening night of the long Memorial Day weekend — prime time for nailing drunken drivers.

From 11 p.m. until 3 a.m. officers funneled nearly 800 cars through a sobriety checkpoint at the Hanover-Henrico county line on U.S. 360…

Before the evening was over, Hanover deputies had issued 33 summonses and arrested an additional 14 people on other offenses ranging from drugs to outstanding warrants on immigration violations…

Immobile, expensive and labor-intensive, sobriety checkpoints are the fishing net of roadway law enforcement — catching everyone who enters but keeping only the violators, including impaired motorists.

“DUI road checkpoints, in and of themselves, are not necessarily designed to catch people under the influence,” said Sgt. Rob Netherland, who supervises DUI checkpoints and patrols for Henrico County.

But Netherland and other officials say checkpoints do provide a worthwhile deterrent against people getting behind the wheel after they drink — a complement to the mobile and focused “saturation patrols,” in which officers hit the road and actively target motorists whose driving suggests they may be under the influence.

“It’s kind of like shock and awe,” Hanover County Sheriff’s Office Sgt. Mike Trice said of checkpoints…

In 2006, Henrico County police conducted eight sobriety checkpoints, resulting in 23 DUI arrests — a small number compared with the 855 DUI convictions the county recorded that year from arrests on routine patrols and other anti-drinking initiatives.

The Hanover Sheriff’s Office ran four sobriety checkpoints in 2006, yielding 12 DUI arrests. The county recorded 337 DUI convictions that year.

Four sobriety checkpoints run by Richmond Police last year netted three DUI arrests in a city that recorded 590 DUI convictions, though officers made 170 arrests on related and unrelated offenses.

Simple: arrest innocent people — lots of them — and falsify evidence:  

Top DUI Deputy Fired; Convictions Questioned

Tampa, Florida.  June 16  – Hillsborough County’s top deputy for making DUI arrests was fired last month after an internal investigation found he might have sent innocent people to jail, according to documents…

Much of Brock’s personnel file at the sheriff’s office is thick with commendations. He has earned awards for vigilance in removing impaired drivers from the roads. Supervisors praised Brock, 38, in annual performance reviews, calling him “highly motivated” and a leader in arrests for driving under the influence…

From October 2005 to October 2006, Brock arrested 313 motorists for allegedly driving while impaired, officials said. In 40 percent of those instances, he did not use his in-car video camera.  Even when he did record a video, his report sometimes conflicted with evidence on the tape, officials said.

On Oct. 25, 2005, Brock noted that a defendant with a .01 percent blood alcohol content had trouble walking, lost her balance and could not perform field sobriety tests adequately. The video of the arrest showed differently, officials said. The woman did not lose her balance and did not show signs of impairment.

“I don’t prescribe to the theory that somehow you have to be .08 to be drunk or impaired,” Brock told investigators.

Brock denied to investigators that he was trying to boost his arrest totals…

At least once, he wrote two versions of the same DUI arrest report, officials said. He sent prosecutors the second version, written from memory and without getting the approval of his supervisor. It constituted a misdemeanor for falsifying records…

After receiving the letter, sheriff’s detectives audited a year’s worth of Brock’s DUI arrests – 313 cases – and the results alarmed them.  In 58 arrests, the defendant blew a blood alcohol content below .08 percent. In 41 of those cases, no urine sample was drawn, despite agency policy.

The tip of the iceberg.  (Does this clarify anything, Trooper 5157?)

(Thanks to Jay Norton.)

I received the following comment yesterday from “Trooper 5157″ in reply to my recent post, “Report: Breathalyzers Outdated, Unstable, Unreliable“:

If you would, please take time to devote just one blog entry on how you may suggest to a police officer how fair and accurate DUI arrests can be made.

I suspect that you believe some drivers to be legitimately under the influence of alcohol. Speaking strictly to the thought of a clearly and absolutely drunk driver, how would you suggest the officer stop, investigate and ultimately arrest that driver.

Your website seems focused on disregarding every tool, every method, every way of training an officer has at his/her disposal. Is there no valid way, no legitimate circumstance, in which you envision a driver being arrested for DUI? What do you accept as a valid DUI arrest?

If I understand your (rhetorical) question, Trooper 5157, you are suggesting that I present a complete course in correct DUI investigation procedures with a single blog post. Perhaps you can appreciate the futility of your suggestion when I point out that much of my 1242-page book deals with that very issue.

I take your “question” as to whether I can envision any DUI arrest as valid to be similarly rhetorical. My answer, however, is that cops are human: many are poorly trained and/or less than conscientious, some are incompetent, lazy or dishonest. Let me ask you in return: Do you really believe that all DUI arrests are valid? That all officers are competent, well-trained and honest in their reports and testimony? And if not, then who — if not a defense attorney — will ever reveal that in any given case? And what — if not the prospect of cross-examination — will ever serve to motivate cops to do things right?

Yes, I believe the majority of those arrested are probably guilty. And after 37 years of prosecuting and defending, I also believe that there are more innocent people wrongfully arrested for this offense than for any other. Further, I believe the level of competence among officers handling DUI investigations is generally lower than in other areas of law enforcement I have encountered.

Every attorney in my firm is law enforcement-certified in operation of PAS/PBT breath alcohol devices. Every attorney in my firm is NHTSA-certified in standardized field sobriety tests. And few of the officers they cross-examine are. Why not?

So, Trooper, maybe the answer to your rhetorical question about how I would “suggest to a police officer how fair and accurate DUI arrests can be made” is also a bit rhetorical: Read my book, and get at least the training my attorneys get.

Unique among criminal offenses, a citizen accused of drunk driving faces trial by machine.  If the breathalyzer indicates a blood-alcohol concentration of .08% or higher, he will usually be charged with two offenses:  driving under the influence of alcohol and driving with a BAC of .08% or higher.  Amazingly, he will be presumed by law to be guilty of both offenses (see my earlier post ”DUI and the Presumption of Guilt”) and the burden of proof will be shifted to the accused (see “If You Can’t Prove It, Make the Defendant Disprove It”).

Prosecutors continue to assure jurors that these state-of-the-art breathalyzers are highly accurate scientific instruments — so accurate and reliable that they can feel comfortable finding the defendant guilty beyond a reasonable doubt based solely upon the machine.

And yet….Law enforcement agencies are beginning to abandon them in favor of blood tests (see “So If Breathalyzers Are So Accurate…”).  Just how accurate and reliable are these “state-of-the-art” breath machines? 

Not very, according to internal documents from the State of Virginia’s Department of Forensic Science. 

Attorney Robert F. Keefer of Harrisonburg, Virginia, filed a demand under the Freedom of Information Act for records concerning the machine used in that state, the Intoxilyzer 5000 (the most commonly used machine in the country over the past 15 years).  Keefer was finally successful in obtaining internal documents from the Department that were submitted in support of an application for funding to replace the breath machines used throughout Virginia with newer models.  The following are direct quotes from those documents:

Funding of this request will allow the agency to replace instruments (Intoxilyer 5000 instruments) that are 9-10 years old and for which replacements are not available.  These instruments are outdated and the manufacturer is no longer maintaining parts and not capable of fully supporting them since current instruments demonstrate two further generations of technological advancement.

In reponse to the request form’s question, “What are the expected results to be achieved if this request is funded?”, the following response was given:

To replace outdated, unstable and unreliable breath alcohol instrumentation used by police officers throughout the Commonwealth to certify whether a driver is or is not impaired.

Unstable and unreliable.  But do you think this is what prosecutors in Virginia tell juries?  Of course not.  They tell them exactly what they always tell them:  accurate, reliable, state-of-the-art proof…guilty beyond a reasonable doubt.

And do you think it is just Virginia that uses the Intoxilyzer 5000?  It remains one of the most commonly used machines in the country (including by my own home town cops, the Long Beach Police Department).

So how many thousands of innocent American citizens do you think have been wrongly convicted based upon these marvels of science?  And how many more will continue to be?

Few of us realize that alcohol is actually produced within our bodies, independent of any drinking — a phenomenon scientists refer to as the autobrewery syndrome.  (See my earlier post  Immaculate Intoxication.)  The usual cause is fermentation created by the presence of yeast and glucose in the system.

Internally-produced alcohol can be caused by other things as well. If an individual was taking antacids such as Tums or Rolaids, for example, he may have created a situation in which his body was manufacturing alcohol internally. Scientific literature indicates that antacids change the gastric acidity in the stomach — which can lead to alcohol production by resident bacteria…. and elevated blood-alcohol readings on a breathalyzer.  See “Effects of Cimetidine Treatments on Ethanol Formation in the Human Stomach”, 19(6) Scandinavian Journal of Gastroenterology 853 (1984); and “Effects of Antacids on Alcohol’s Reaction”, 5(5) Alcoholism 28 (1985).

Over more years than I care to admit, I’ve watched the gradual erosion of constitutional rights in this country. Nowhere has this been more evident than in the unending “War on Drunk Driving” — that politically expedient phenomena I’ve repeatedly referred to as the “DUI Exception to the Constitution”. The examples are legion: roadblocks, double jeopardy, denial of counsel, destruction of evidence, self-incrimination, presumptions of guilt, denial of due process…ad nauseum.

OK, you say, but they’re just drunk drivers, right? Think about that for a moment. And think about tommorrow: If the Supreme Court waives the Fourth Amendment for “sobriety checkpoints” today, what are they prepared to do tommorrow? If that same Court can sanction the routine destruction by police of critical evidence in DUI cases today…

It is interesting that many of the Court’s actions have reversed attempts by the state courts to protect their citizens’ freedoms. In Michigan v. Sitz, for example, the Michigan Supreme Court held that DUI roadblocks were a violation of the Fourth Amendment — and the U.S. Supreme Court reversed. (On remand, the Michigan court resinstated their original result by relying upon their own state constitution.) In South Dakota v. Neville, that state’s Supreme Court held that offering evidence of a refusal to submit to breath alcohol testing was a violation of the Fifth Amendment — and, again, the U.S. Supreme Court reversed. (And, again, on remand that state’s court thumbed their noses at Washington by relying upon their state constitution to protect their citizens.)

Thomas Jefferson saw it coming quite clearly nearly two centuries ago:

It has long been my opinion, and I have never shrunk from its expression,… that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary–an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.

(Thanks for the quote to Charley Hardman.)