Archive for July, 2007

The Rush to Judgment

Monday, July 9th, 2007

When did we lose the presumption of innocence in this country?  When did we become so quick to judge and condemn our fellow citizens?


Tank Won't Face DUI Charge

Chicago, IL.  Chicago Sun-Times, July 6  –  The Arizona bust that got Tank Johnson booted from the Chicago Bears will not result in criminal charges, police said Thursday.

Sgt. Andrew Duncan of the Gilbert, Ariz., police said Johnson will not be prosecuted following a June arrest for allegedly driving under the influence. A blood test later revealed Johnson was not legally drunk…

The Bears cut Johnson three days after the Arizona arrest, with officials saying they were "embarrassed" by the lineman's actions.


So Mr. Johnson was fired from his job as an athlete with the Chicago Bears beccause….well, because he was arrested.  He wasn't charged with or convicted of a crime.  He was just arrested.  And that was enough.

Do you recall the arrest of the Duke University lacrosse players for gang rape?  Turns out they were all innocent, railroaded by a politically ambitious D.A.  But the possibility of innocence sure didn't stop the University administration from quickly throwing the students out in disgrace.

I'm not even talking about the attitudes of police, prosecutors and judges in today's assembly line criminal justice system.  I'm talking about you and me.  As Pogo used to say, "I have met the enemy, and he is us."

Every DUI defense attorney knows when he is in trial that he is facing a jury brainwashed by Mothers Against Drunk Driving's massive, hysterical and never-ending chorus, and simmering with frustration and anger from the daily bombardment of news reporting crime, violence and corruption.  Every defense attorney knows the look in jurors' eyes at the start of a trial:  "So prove to me he's innocent".  As more than one juror has commented to me after a trial, "If he's innocent, what's he doing here?" 

But this only happens to other people, right?  Keep believing that — when you are stopped and arrested because of alcohol on your breath from only a drink or two.  

I've been prosecuting and defending criminal cases for most of 38 years, and it didn't used to be this way.  What happened?

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Don’t Drink Coffee and Drive

Friday, July 6th, 2007

Ok, you’ve had two glasses of wine with dinner and it’s time to head home. You feel fine, but throw down a couple of cups of coffee to clear your head just to be sure. Then you pay the bill, walk out to your car, get behind the wheel — and one block after pulling out of the parking lot you see flashing red lights in your rear view mirror. Well, you think, thank God I only had a couple of drinks. A couple of minutes later you find yourself struggling to walk heel-to-toe on a straight line.

Only a couple of drinks…..and coffee.

Field sobriety tests are used by officers as evidence of whether an individual is under the influence of alcohol or not. These commonly involve such excercises as “walk-and-turn”, “finger-to-nose” and “one-leg-stand”. The greater the intoxication, in theory, the worse will be the performance on these tests. However, the truth is that these “tests” are highly unreliable and subject to such variables as the individual’s age, weight and athletic ability, the conditions under which the tests are given, the emotional state of the invididual, unfamiliarity with the tests, failure of the officer to communicate instructions, and many others. And then there is caffeine…..

Caffeine and alcohol have a synergistic effect — that is, they combine to produce an accelerated effect. Rather than sobering a person up, as is commonly believed, coffee can actually increase the outward symptoms of alcohol. The definitive studies were done by researchers in Great Britain and reported in an article entitled, “Interactions of Alcohol and Caffeine on Human Reaction Time”, appearing in the scientific journal Aviation, Space and Environmental Medicine 528 (June 1983). The conclusions of the scientists:


Alcohol has always been categorized as a central depressant and caffeine as a central stimulant. Therefore, it should follow that an antagonistic [counter-active] interaction should occur when these two drugs are ingested simultaneously. But as these results illustrate, this is not necessarily the case…

Caffeine has a synergistic interaction with alcohol…(It) has the effect of potentiating the detrimental effects already induced by alcohol….Motor skills which involve delicate muscular coordination and accurate timing have been found to be adversely affected by caffeine.”


Result? Poorer performance on the field sobriety tests — and an arrest for DUI.

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DUI a Crime of Violence?

Monday, July 2nd, 2007

It is difficult for members of the public to recognize and appreciate the degree to which a double standard exists in the drunk driving field. The laws are increasingly unrealistic, procedures unfair, evidence unreliable and constitutional protections largely ignored. An example of this was demonstrated in a United States Supreme Court decision three years ago (Leocal v. Ashcroft, 543 U.S. 1).

The Court was faced with the appeal of Josue Leocal, a lawful permanent resident of 20 years, who pleaded guilty to DUI with injury. As a result, the Immigration and Naturalization Service (INS) commenced proceedings to have him deported as an alien convicted of an “aggravated felony”. The INS regulations defined an aggravated felony as “a crime of violence”, which in turn is defined as “an offense that has as an element the use…of physical force against the person or property of another.” An Immigration Judge ordered the deportation, and the Board of Immigration Appeals upheld the order. Leocal went to the U.S. Court of Appeals, which promptly denied his petition for review.

Fortunately, the Supreme Court reversed the deportation order. In a rare unanimous decision, the Court stated the obvious: DUI is not a crime of violence, even if someone is injured in its commission. A deportable “crime of violence”, the Court said, required “a higher mens rea [mental state] than the merely accidental or negligent conduct involved in a DUI offense.” In other words, the requirement of “the use of physical force against” a person necessarily involves the intent to use that force. Put simply: How can you be accidentally violent?

The point here, of course, is that the everyone right up to the Supreme Court of the United States was perfectly willing to twist the clear wording of the law when the politically unpopular crime of drunk driving was involved. At every level, the nations’s agencies and courts pretended that a crime clearly involving no intent was, in fact, a crime involving the intentional commission of a violent act against someone.

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