Archive for October, 2008

Secret Memo: DMV License Suspension Hearings Rigged

Tuesday, October 28th, 2008

Imagine the Presiding Judge of a courthouse telling the other judges, "There have been too many acquittals lately.  I’ve reviewed them and disagree with most of your ’not guilty’ verdicts.  All future acquittals will be submitted to me for review, and if I disagree with them you will be counselled and your fitness to continue serving as a judge will be reviewed."….

When a citizen is booked on suspicion of drunk driving, his driver’s license is immediately suspended by the police if he (1) takes a breath test indicating .08% blood-alcohol or higher, (2) takes a blood test (even though results are unknown until later lab analysis), or (3) he refuses to be tested.  In essence, the cop is the judge, jury and executioner.

But what happened to due process, to fundamental fairness?  Well, the citizen has a right to appeal the suspension by demanding an administrative hearing where he can challenge the DMV’s evidence,  present his own evidence and argue his case.

In California, as in most states, this is done at a hearing conducted by the Department of Motor Vehicles.  As I’ve pointed out in previous posts, however, this "hearing" is anything but a fair and impartial one.   See Due Process and Automatic License Suspensions.  

1. The government agency that is trying to sustain the suspension — the DMV — is the same one conducting the hearing.

2. Hearsay police documents – which cannot be cross-examined – are admissible and commonly make up the Department’s entire case.

3.  If the citizen wants to cross-examine the officer, he has to subpoena him at his own cost (service of the subpoena and the officer’s overtime salary) for the privilege.

4.  The prosecutor is not a real prosecutor, nor even an attorney.  Nor, in most cases, even a college graduate.  He is an employee of the DMV.

5.  The judge is also not a real judge — not even, as in other states, an ALJ (administrative law judge).  In fact, this "judge" is also not an attorney.  Nor a college graduate.  This "judge" is, like the prosecutor, an employee of the DMV with a high school degree.

6.  The "prosecutor" and the "judge" are, in fact, the same person.  That’s right, this supposedly impartial hearing officer is both prosecutor and judge.  He can object to the citizen’s evidence — and then rule on his own objection.  He presents his case — and then decides if he wins or loses.

Amazingly, however, a few of these DMV hearing officers try to do the right thing.  So what happens if some hearing officer starts developing a conscience and makes a few decisions in favor of the citizen? 

The following is an internal memorandum provided to me by a very reliable source which the manager of the California DMV’s San Diego hearing office circulated to his hearing officers yesterday.  (Note: a "set aside" is the term used when a license suspension has been reversed by the hearing officer.) 

From:  [Manager, San Diego Driver Safety Office] 

To:  [names of 14 hearing officers]

Sent: Monday, October 27, 2008  2:12pm

Subject: Set Asides

This is a reminder to place your set asides in the SET ASIDE basket in the file room.  I run a weekly report to confirm that the set asides are being placed in the basket.  Some of you have not been putting the set asides in the bin.

To date, I have reviewed 17 set asides.  The results are as follows:

     – 6 good decisions
     – 4 are questionable — needing review of the [tape] recording to make determination
     – 7 are unwarranted set asides

These results are terrible, in that we have  no rookie hearing officers.  Should you be responsible for any of the 7 unwarranted set asides, your manager will be discussing the case(s) with you, if they haven’t already.

I  will be publishing my findings on each of your cases — good and bad ones — minus the hearing officer name and case info.  Should you wish to discuss any of these cases with me, feel free to do so.

In reading this "smoking gun" memo, ask yourself the following questions:

1.  Why are are the decisions — verdicts — of these administrative judges subject to further review by the DMV’s office manager?  To identify and weed out hearing officers who are not sustaining enough DMV suspensions?

2.  Why is the office manager substituting his own judgment for that of the hearing officer who heard the evidence?

3.  Why are the hearing officers ordered to submit their set aside decisions for review — but not their decisions sustaining the suspension?

4.  Why do supposedly independent judges have "managers"?

5.  How can 11 of 17 decisions in favor of the citizen – a tiny percentage of all cases handled by the San Diego office — be determined "questionable" or "unwarranted"?

6.  Why are the results "terrible, in that we have no rookie hearing officers"?  Because "rookies" don’t yet have the big picture and are actually decidng cases on their merits?

7.  What do you think the clear message of this memo is to all hearing officers who want to keep their high-paying jobs?

This is the supposedly "fair" hearing by an "independent" hearing officer that is given to citizens who have had their licenses taken by police.  And as any DUI attorney will tell you, this same approach is found in   hearing offices statewide.

Welcome to "due process" at the DMV.



Falsifications of Breathalyzer Records Continue

Saturday, October 25th, 2008

A few days ago I posted about a state breathalyzer inspector who was "fixing" machines in Miami-Dade County by simply deleting evidence of malfunctions. The Florida Department of Law Enforcement fired her — but not until after she had cast doubt on as many as 10,000 DUI convictions .  See How to Prove Breathalyzer Accuracy: Falsify the Records

I concluded the post with the comment, "Do you really think this only happens in Miami?"….

Thousands of DWI Cases Put in Jeopardy

Inspector faked her checks of devices that test breath, DPS says

Houston, TX.  Oct. 25  -  Thousands of drunken-driving cases in the Houston area could be dismissed because of an inspector of alcohol breath test machines who didn’t conduct the examinations she claimed to have completed.

The Texas Department of Public Safety announced Friday that it suspended the certification for a woman who contracted to keep the breath test machines accurate for the Clute, Friendswood, Galveston, League City, Pearland, Seabrook, South Houston and Webster police departments.

DPS said she altered electronic records to make it appear she’d tested and adjusted the calibrations of machines when she had not.

DPS officials said the woman, an independent contractor with each of the municipalities, had been falsifying records for up to a year and that would affect at least 2,600 DWI charges. The Texas Rangers are conducting the criminal investigation.

She has not been charged with any crime…


Thanks to Bryan Hanks and Troy McKinney.


“Black-and-White Fever”

Wednesday, October 22nd, 2008

Experienced traffic patrol officers are familiar with a phenomenon which is sometimes referred to as “black-and-white fever”.

That phenomenon is simply the normal reaction of most drivers to being followed by a marked police car (painted black and white in many jurisdictions). As soon as the motorist becomes aware that a police car is following him, he becomes understandably apprehensive’and focuses his attention increasingly on the rear view mirror. As the officer continues to follow, the driver becomes tense, worried, and his concentration on driving is broken: He keeps his eyes more on the mirror and less on the road ahead. Each time the driver brings his eyes back to the road, he finds that he has drifted and must correct the course of the car back to the center of the lane.

The result: weaving and, possibly, erratic movements such as sudden increases or decreases in speed (tension can cause the foot to depress the accelerator). And, of course, these are the most commonly encountered symptoms of a drunk driver on the highway.

In other words, it is the very presence of the officer which tends to create the probable cause for suspecting a DUI.

Once the officer pulls the driver over, he gets out and approaches the car with the very human preconception that the driver is probably intoxicated. And, as we know from psychological studies, we tend to see what we expect to see: normally veined eyes appear “bloodshot”, normal but nervous speech sounds “slurred”, normal pink complexion appears “flushed”, etc.

These observations are quickly followed by the notoriously subjective and inaccurate field sobriety tests, difficult to perform under the best of conditions (see my earlier post, “Field Sobriety Tests: Designed for Failure?”)….Followed by an arrest for drunk driving.



How to Prove Breathalayzer Accuracy: Falsify the Records

Friday, October 17th, 2008

One way to make sure that there is no evidence of a breath machine’s inaccuracy and unreliability is to simply make sure there is no record of its false results and failures…even if it means innocent people are convicted.  The main thing is to maintain faith in these devices, right?

Fudged Breathalyzer Tests Questions DUI Arrests

Inspector Turned Machines Off When They Appeared About To Fail Throwing Into Doubt Thousands Of Drunk Driving Citations

Miami, FL.  Oct. 16  –  Defense attorneys were in a Miami courtroom on Thursday seeking a judge’s order to inspect the hard drives of every breathalyzer machine used in Miami-Dade county. 

Before Judge Jose L. Fernandez, attorney Michael Catalano said, "We’re interested to find why she was unplugging breath machines so that she could cover up mistakes and not tell anybody."

This comes after the Florida Department of Law Enforcement fired the examiner who was responsible for testing all the DUI machines, alleging she failed to follow protocol with the inspections.

Defense attorneys contend it is a scandal that puts suspicion over thousands of DUI cases in Monroe, Broward and Miami Dade.

"The number of cases involved could be as many as 10,000 here in Miami-Dade County," attorney Richard Hersch explained to CBS4 reporter Gary Nelson. "The inspector who has been discharged here was on duty for about 18 months before she was discharged."

In a "notice of dismissal", the FDLE accuses analyst Sandra Veiga of having encouraged police agencies to abort tests on Intoxilyzer 8000 machines that were giving questionable results.

"What the inspector was doing," Hersch said, "was unplugging the machine if the inspection was failing, then plugging it back in; that prevented the machines from reporting the malfunctions to Tallahassee."  

 Do you really think this only happens in Miami?


Why Do Police Destroy DUI Evidence?

Monday, October 13th, 2008

As we all know from watching TV, the police are always very careful to preserve the evidence in criminal investigations. Except in DUI investigations.

What is the single most important piece of evidence in most drunk driving cases? The Breathalyzer test. In fact, it’s the ONLY evidence of the crime of driving with over .08% blood alcohol. And it’s pretty important for the “driving under the influence” charge, too: the law presumes the defendant is under the influence if the test result is .08% or higher. Evidence just doesn’t get more important than that.

So, of course, the police are careful to preserve the breath sample, right? I mean, there may be some question later of whether the machine was working correctly; it would be a simple matter to save the sample so it could be tested again on another machine. And, hard to believe, but the defense may not want to just take the officer’s word that he administered the test correctly and that the test results were from the defendant.

Unfortunately, the breath sample is routinely destroyed moments after it is tested.

But how can this be? That’s a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and reversed the conviction:

Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant.  People v. Trombetta, 142 CalApp.3d 138 (1983).

How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a “field crimper-indium encapsulation kit” was readily available, cheap and approved by the California Department of Health Services. So why isn’t the evidence saved in DUI cases today?

The Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case.  California v. Trombetta, 467 U.S. 479 (1984).

What? Neither of these two conditions is met in a DUI case? Let’s take another look at the Supreme Court’s test…

1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of any value to the suspect?

2. The defendant was able to “obtain comparable evidence by other means”…..How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him — but it would probably be so much later that it would not be relevant or even admissible in court.

Another example of “The DUI exception to the Constitution”.

It’s interesting that the New Hampshire Supreme Court later rejected the Supreme Court’s reasoning, and relied upon its own state constitution in requiring breath samples to be saved:

A suspect would face numerous practical difficulties in obtaining a second sample on his or her own. While in police custody, the suspect would have to locate an available, licensed technician capable of promptly performing a second test, no matter what time of day or night. Even if a defendant successfully obtained an independent second test, the results would not have the same evidentiary force as would a second test performed on the same machine at approximately the same time. Opinion of the Justices, 557 A.2d 1355 (1989).

The Trombetta decison was, as intended, a huge green flag to police agencies across the country: Go ahead and destroy the main evidence — but only in DUI cases. And law enforcement agencies have happily complied.