Archive for May, 2009

Legislator Immunity From DUI Challenged

Wednesday, May 6th, 2009

A few weeks ago, based upon a tip from a reader I posted about an item in the Denver Police Department Operation Manual which essentially instructed officers not to arrest state legislators for drunk driving.  See Legislators Vote Themselves Exempt From DUI Arrrest.

205.07.  Violations by Colorado Legislators.

(4)  In the absence of felony violations, should an officer have reason to believe a legislator is driving under the influence, the officer may cite for a violation which caused an accident or was the reason for a traffic stop.  For the safety and welfare of the public and the legislator, the officer will arrange for other transportation for the legislator and his/her vehicle will be parked and locked 

This was based upon a little-known provision of the state constitution which gave limited immunity from arrest for misdemeanors to legislators. 

Apparently, someone read the post.  In yesterday’s news:

DUI Loophole: State Legislators Exempt

Denver, CO.  May 4 — It’s a case of preferential treatment embedded in both the Colorado Constitution and the Denver Police Department Operations Manual: Colorado legislators are immune from being arrested for Driving Under the Influence.

A CBS4 investigation found the unusual law and DPD regulation, codes that took the state director for Mothers Against Drunk Driving by surprise.

"So I don’t see why we should treat legislators different than normal people," said spokeswoman Emily Tompkins. "So it’s time to clean that up. It absolutely sends the wrong message that those writing the laws we have to stand by are exempt from them."

Section 205.07 of the Denver Police Operations Manual guides officers on "Violations by Colorado Legislators." It says that if a lawmaker is driving under the influence and there is an accident with serious injuries or a fatality, the legislator should be arrested and processed for felony DUI.

In other words, the officer can cite the legislator for whatever led to the stop, but not for an actual DUI, and the legislator should then be given a ride.

"But no one should be driving impaired and no one should be exempt from the laws that are there to protect the public," Tompkins said.

Eric Brown, a spokesman for Mayor John Hickenlooper’s office, told CBS4 that at the request of the Denver Police Department, the City Attorney’s Office recently reviewed this section of the police operations manual but recommended the thrust of the section not be changed…

"Who will guard the guardians?"


State Supreme Court Orders Breathalyzer Secrets Exposed

Monday, May 4th, 2009

If you are arrested for drunk driving, you’ll probably be charged with two crimes.  The first is DUI – "driving "under the influence" (sometimes called DWI – "driving while impaired").  If the reading from a breath test is .o8% or higher, the laws of most states rebuttably presume you to be guilty of the crime.  

The second crime you will be charged with is driving with a blood-alcohol level of .08% or higher.  In this case, there is no presumption: the breathalyzer reading is the crime.  And in many states, the reading is presumed to be accurate.  See Whatever Happened to the Presumption of Innocence? 

Obviously, the accuracy and reliability of these machines — which are run by computers — are critical.  Just as obviously, an American citizen accused of these crimes should have the right to question the accuracy of his accuser: the machine.  I mean, the Constitution gives us that right, doesn’t it?

Well, as I’ve railed long and hard in past posts, there is this nagging "DUI exception to the Constitution".  So, no — you don’t have a right to look into the guts of the machine — its computer software — and see if it’s accurate and reliable.  Why?  Because the breathalyzer manufacturers refuse to turn it over — citing "trade secrets", but in reality fearing exposure of their junk science.  See Secret Software Finally Revealed, about the one case in which the manufacturer was forced to turn over the software — revealing, as suspected, that the primitive code was neither accurate nor reliable (nor was it a "trade secret").

In the past, the courts have gone along with the manufacturers, siding as well with prosecuters who don’t want their all-important breath machines exposed.  But in recent years, an increasing number of trial and appellate courts across the country have begun changing this approach.  See, for example, Judge Orders Secrets of Breath Machine RevealedJudge: Divulge Breathlayzer Code – Or Else and Breathalyzer Manufacturer Thumbs Nose at Courts.  

On Friday, a state supreme court finally weighed in on the issue….

Breath-Test Ruling Jeopardizes Thousands of State DWI Cases

Minneapolis, MN.  May 1 –Minnesota may be forced to drop thousands of driving-while-impaired cases and change the way it prosecutes others in the wake of a state Supreme Court ruling Thursday, prosecutors and defense attorneys agreed.

The state’s highest court ruled that defendants in drunken-driving cases have the right to make prosecutors turn over the computer "source code" that runs the Intoxilyzer breath-testing device to determine whether the device’s results are reliable.

But there’s a problem: Prosecutors can’t turn over the code because they don’t have it.

The Kentucky company that makes the Intoxilyzer says the code is a trade secret and has refused to release it, thus complicating DWI prosecutions…

The Intoxilyzer 5000EN is the standard device used by Minnesota police to determine if a driver is impaired. The state bought 260 of the machines from the manufacturer, CMI of Kentucky, in 1997, and state law presumes the devices’ results to be reliable.

The device is used with nearly eight of every 10 suspected drunken drivers who are tested in Minnesota.

But defense attorneys have argued that if they can’t examine the source code, the computer program that runs the machine, they have no way to tell if the Intoxilyzer is reliable. District judges across Minnesota have handled defense requests for the source code with a patchwork of rulings: Some say a defendant has a right to examine it; others say it isn’t relevant…

The Supreme Court said (defendant Brunner’s evidence) "show that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to Brunner’s guilt or innocence."

(Thanks to Andre)


Drunk Riding

Saturday, May 2nd, 2009

In today’s stop-the-world-I-want-to-get-off department:

Cowboy Ticketed for ‘Riding Under the Influence’

Arvada, CO.  May 1  –  A man in a cowboy hat who rode a horse through a Denver suburb has been cited for riding an animal under the influence…

Police say deciding what to do with the horse was a "tricky call" because "you can tow a car" in typical drunk driving cases…