Archive for November, 2008

Here Come the Feds…

Friday, November 28th, 2008

As everyone knows, in our federal system of government most laws are enacted and enforced by the individual states.  Burglary, murder, rape, larceny — all are defined, enforced and prosecuted by the state or local governments.  Until recently…

The laws, evidence and procedures concerning drunk driving are increasingly coming under the control of the federal government.  Over recent years, for example, the Feds have used the threat of withholding highway funds from states to force them to pass legislation championed by MADD.  Thus, for example,  South Carolina recently became the last state to cave in and adopt per se laws – driving with .08% blood-alcohol, even if sober.  All states have also now adopted Automatic License Suspension (ALS) laws, the immediate confiscation by police of driver's licenses of those suspected – not convicted – of having over .08%.  Again under federal/MADD pressure, almost all have passed zero tolerance laws lowering the blood-alcohol level to .01 or .02% for drivers under 21.  And so on…

Even the evidence in DUI cases is increasingly being dictated by the federal government.  Federal standardized field sobriety tests are being adopted across the country, and breath testing machines are now selected by state agencies from a list of federally-approved devices.

Eventually, as I've predicted in past posts (The Future of DUI), the federal government will simply federalize all state drunk driving laws, penalties and procedures — but, without the necessary law enforcement, court and jail facilities, they will still require the state to enforce those laws. 

Consider a couple of news stories just within the past five days:

State DUI Policies Criticized

Seattle, WA.  Nov. 24  –  As Thanksgiving approaches, state law enforcement is preparing for a less-than-loved holiday tradition — drunken driving. But, according to the National Transportation Safety Board, the state's laws aren't up to the challenge.

An NTSB review puts Washington among the 25 states that have not made changes to combat drunken driving that the federal safety board has recommended.

Acting board Chairman Mark Rosenker was expected to chastise the states during a meeting Tuesday morning in Washington, D.C.

Chief among the NTSB complaints against Washington is the state's reluctance to allow police to conduct sobriety checkpoints.

Washington's checkpoint law was struck down as unconstitutional in the late 1980s, and the state does not use them…

The NTSB also faulted the state for allowing plea bargains for first-time DUI defendants, not impounding cars driven by all drunken-driving suspects and failing to create a statewide system of DUI courts aimed at repeat offenders.


NTSB: R.I. Not Doing Enough to Fight Drunken Driving

Providence, RI.  Nov. 28  – Federal transportation officials say Rhode Island’s efforts to curb drunken driving are falling short.

The National Transportation Safety Board this week said that Rhode Island is one of the bottom three states in the nation when it comes to following agency recommendations to address drunken driving accidents and deaths.

The safety board developed 11 recommendations in 2000 for how states could reduce alcohol-related crashes and fatalities. Rhode Island has enacted just two of them. Only Michigan and Montana have enacted so few.

Gabrielle Abbate, executive director of the state chapter of Mothers Against Drunk Driving, said Rhode Island lacks legislative leadership when it comes to cracking down on drunken driving.

In the past, the federal government left the states to enact criminal laws, limiting its own jursidiction to those involving  federal interests such as counterfeiting, espionage and civil rights.  So, why the gradual takeover of DUI offenses?  

MADD, with annual revenues of about $52 million, continues to apply media and lobbying pressure — but has moved beyond their state legislatures to Congress and federal agencies.  And beaurocrats and elected representatives in Washington are just as frightened of MADD's witch-hunt as those in Sacramento or Albany.


Latest Weapon: Scare Kids with Fake DUI Arrests

Saturday, November 22nd, 2008

A few months ago I posted about a staged scene designed by MADD in which police officers came to a high school and falsely told students in 20 classrooms that one of their classmates had been killed in a drunk driving accident.  Before they were told the truth hours later, many of the kids "were driven to tears – a few to near hysterics".  See MADD’s Latest Weapon.  The newest version of this tactic:

Staged DUI Arrest

A staged drunk driving arrest is getting mixed reaction at a local high school. Administrators at San Joaquin Memorial working with Fresno police set up the fake arrest to show kids the dangers of drinking and driving.

This morning juniors and seniors were told the truth about the alleged drunk driving incident…That it was all a hoax. The principal says he’s not apologizing for the education the kids got about drinking and driving.

One student caught the fake drunk driving arrest on tape. Standout Water Polo player Kevin Van Gundy getting arrested in front of the school at lunch time Wednesday for being under the influence. Van Gundy says his friends were both relieved and mad Thursday morning when they found out the truth.

The real story was revealed during an assembly this morning, when Van Gundy faced a Fresno Superior Court Judge, just like he would have if it were real. Not even the teachers knew the truth until the principal sent out this email late Wednesday explaining the DUI lesson.

Administrators kept the secret overnight on purpose, so students would go home and tell their parents…

One parent who contacted action news and didn’t want to be identified said quote "I think the desired effect was not achieved. Parents and students were left devastated for 24 hours. It was traumatic and shocking."

Police Chief Jerry Dyer says sometimes a shock is what students need…

Van Gundy isn’t sure he’d participate again. The exceptional student who carries a 4.3 GPA says many students were really shaken up and he feels bad. "I think it stung a little bit more than it had to. I think keeping the students in the dark over night for so long just kinda leaves a bitter taste in their mouth towards the whole situation as opposed to being able to listen to the message they were a little bit angry at the administration or at me or at the program that it was just a little bit too harsh for some of them."

The principal says this issue is very personal to him, since his brother was killed in a drunk driving accident years ago… 

I’m sure the students learned a lesson.  What do you think it was?



Truth and Justice in the “War on Drunk Driving”

Tuesday, November 18th, 2008

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 it has acquired 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 politicians, judges and prosecutors to get reelected. We’ll talk about that in another post. In the meantime, let’s take a look at an example of what kind of thinking goes on in the judicial mind when dealing with 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% DUI conviction on the grounds that he was not permitted to offer scientific evidence to the jury. Specifically, he was not permitted to offer the testimony of recognized experts that the breath machine’s computer was programmed to assume that there were 2100 parts of alcohol in his blood for every 1 part it 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 admitted 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 the 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. She wrote in a separate opinion: "The majority…has on its own created the new crime of driving with alcohol in one’s breath."



The DUI Double Standard

Thursday, November 13th, 2008

So what happens when a cop stops a driver for DUI — and the driver’s a cop? 

Deputy, Officer Argue Over DUI Stop

Ponce cop heard trying to help county sergeant

Ponce Inlet, FL.  Nov. 8  –   A Ponce Inlet police officer who pulled over an off-duty Volusia County sheriff’s deputy on suspicion of drunken driving last weekend was apparently trying to help his fellow law enforcement officer, an audiotape of the traffic stop reveals.

"(Sheriff’s) Sgt. Greg Miles is going to come and get you," Officer Chris Selander is heard saying on the tape he made early Sunday morning. "I’m not going to arrest you. You can relax. You know you’ve been drinking probably a little too much. I saw the alcohol in the car. I can smell it."

A short while later on the 45-minute tape, Selander goes on to say, "You’re a sergeant now. You get to keep your job, and that’s your career."

But the deputy, Sgt. Kenneth Vickery, still seemed intent on arguing he hadn’t done anything wrong and repeatedly raised Selander’s ire as the pair stood in the 4300 block of South Atlantic Avenue. Vickery, who works in the sheriff’s training division, insisted he hadn’t crossed any lines on the road, hadn’t swerved and wasn’t speeding.

"You ran off the road, and, now, you’re basically calling me a liar," said Selander, a patrol officer. "I didn’t have to do any of this. You could be sitting in that jail right now. You still can."…

The conversation continued to switch from calm to arguing.

At one heated moment, Selander said, "You’ll be lucky if you have a job after this. Now, sign the ticket, keep your mouth shut and go home."

At another angry moment Selander said, "I think you want to go to jail. I’m tired of your attitude. . . . You don’t even act like a police officer. You don’t even act like a sergeant."…

When all was said and done, Vickery was cited only for an improper lane change.

If it were you driving that car, you’d be facing drunk driving charges — and resisting arrest…after you were released from the hospital.



Breathalyzer Manufacturer Thumbs Nose at Courts

Monday, November 10th, 2008

Last week I mentioned how manufacturers across the country were refusing to turn over the critical software code in their breath-testing machines.  See What Are Breathalyzer Manufacturers Hiding?  Just how far are they willing to go to keep us from looking inside these secret black boxes that determine guilt or innocence?  A follow-up story in today’s news:

Thousands of Tucson-Area DUI Cases May Get the Boot

Intoxilyzer 8000 May Be Ruled Unreliable

Tucson, AZ.  Nov. 9  – A dozen years ago, 3,000 drunken-driving prosecutions in Tucson were dismissed in one day – about 5,000 cases within a few months – because the breath-test device that said the drivers were drunk was deemed unreliable.

Those numbers could easily be surpassed if one of the current alcohol detectors in Arizona, the Intoxilyzer 8000, is found to be unreliable, a leading driving under the influence defense attorney said.

"This is going to be huge," said Tucson lawyer James Nesci, because the current machine is widely used statewide as opposed to the older device, which was used in Tucson and at a smaller agency…

Despite court orders across the country, CMI has declined to divulge the code, which defense attorneys say will show that the device is error-prone. The company has racked up more than $1 million in fines by refusing to comply with a similar Florida court order, records show.

CMI President Toby Hall didn’t return phone calls for comment. When Bernini first ordered CMI to release the code, Nesci said a process server couldn’t get Hall to accept the court order.

Last month, Bernini told prosecutors to get the source code from CMI.

Deputy County Attorney Robin Schwartz told Bernini that she didn’t think the state could force CMI to reveal the code.

Bernini also set a Nov. 24 hearing for Hall to appear and explain why she shouldn’t hold him and CMI in contempt for refusing to comply with her orders…

Recent events echo those in the mid-1990s when defense attorneys challenged the integrity of the RBT IV breath test machine, manufactured by Intoximeters Inc., based in St. Louis. Prosecutors eventually agreed that the device was faulty, which led to 3,000 cases being dismissed at once in 1997 and the total number thrown out about 5,000, Nesci said.

What are they so afraid of?  Could it be that inside the black box is…junk?