Archive for June, 2009

Another “DUI Exception to the Constitution”: Double Jeopardy

Monday, June 8th, 2009

When a person is arrested for DUI, his driver’s license is confiscated by the arresting officer and he is given a notice of "administrative suspension". He is also given a citation to appear in court to face criminal drunk driving charges.

These are usually two very different procedures: (1) the administrative suspension for driving with blood-alcohol concentration (BAC) of .08%, in most states administered by its department of motor vehicles, and (2) the criminal prosecution which takes place in the courts.  The criminal prosecution will be for driving under the influence of alcohol (DUI) and driving with .08% BAC.

In other words, even though he only drove once, the individual is being prosecuted for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses. How is this possible?

It gets worse….

The driver has already been punished for driving over .08% by having his license suspended by the state’s motor vehicle agency. If he is later convicted in the state’s criminal court of driving over .08% (and/or driving under the influence), he will be punished again. The sentence may involve jail, fines, ignition interlock devices, DUI schools, probation — and another license suspension or revocation.

How many times can the state punish a person for a single crime? Our Constitution says only once. The Fifth Amendment specifically provides that no person shall "be subject for the same offense to be twice put in jeopardy of life and limb". So is this another example of "The DUI exception to the Constitution"?

Let’s first take the question of charging defendants with both DUI and .08%. The courts in the different states wrestled with this one for awhile, rendering conflicting decisions, but eventually came to the conclusion that the driver actually commited two different crimes. As an Indiana court reasoned, "the test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of a fact which the other does not." Sering v. State, 488 N.E.2d 369 (1986).

The .08 statute required proof of blood-alcohol concentration; although blood-alcohol evidence was used to prove the DUI crime as well (a person is presumed to be under the influence if his BAC is .08% or higher), the offense could be proved without it. So it’s ok to prosecute and convict him for both crimes.

Hmm… Well, what about punishing the driver by immediately suspending his license when he’s arrested — and then punishing him again in court – in fact, punishing him in court with a sentence that may include another suspension?

This one caused the courts a bit more trouble. This wasn’t a case where the person was theoretically committing two different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC. But there had to be some way to get around the Constitution….

The courts could not agree. Some said that there was no double jeopardy since the DMV license foreiture was not really a "punishment" but only a "civil sanction". Others took the position that this was, in fact, a violation of the Fifth Amendment, and they relied upon a U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435; 1989) which involved civil forfeitures and criminal punishments for selling marijuana. In that case the Court held that a "civil sanction" was actually a punishment — and thus double jeopardy — if (1) the "clear focus of (the statute) is on the culpability of the individual", and (2) the legislature "understood these provisions as serving to deter and punish". The Court added that "the historical understanding of forfeiture as punishment" weighs heavily in favor of the conclusion that forfeiture continues to serve punitive purposes.

Well, relying upon the Supreme Court’s ruling, an alarming number of courts around the country were throwing out criminal DUI charges on double jeopardy grounds. This, of course, infuriated MADD, legislators, prosecutors, law enforcement and pretty much everyone else who did not take the Constitution too seriously. But rescue arrived from a more conservative U.S. Supreme Court.

In 1997, Chief Justice Rehnquist revisited the forfeiture-punishment problem and did something that is rarely ever done: he criticized and flatly rejected the earlier Supreme Court’s ruling:


"We believe that Halper’s deviation from longstanding double jeopardy principles was ill-considered….Halper’s test for determining whether a particular sanction is "punitive", and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable". Hudson v. U.S., 592 U.S. 93 (1997).


Since then, the courts have had little trouble finding that a police officer who confiscates and suspends the driver’s license of a drunk driving suspect is merely administering a "civil sanction", not punishment….and that when he is later convicted in court and is fined, jailed and has his license suspended again, well that’s not really double jeopardy. It just looks an awful lot like it.

As Humpty Dumpty said to Alice in Through the Looking Glass:


“When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is”, said Alice,”whether you can make words mean so many different things.”

“The question is”, said Humpty Dumpty, “which is to be master — that’s all.”
 

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Pre-Written DUI Police Reports

Monday, June 1st, 2009

I’ve commented in past posts that it is becoming an increasingly common practice for police officers to simply use form or template arrest reports in drunk driving cases — what I have referred to in my books as "xeroxed" reports.  See Police Using Pre-Written DUI Reports.  In other words, rather than going to all the "trouble" of writing a report of the actual investigation and arrest, cops are using pre-written reports — and then changing a few details to fit the defendant.

This is bad enough, as the reports are supposedly signed under oath and subject to perjury charges.  But it becomes particularly serious when you realize that very few officers can remember the details of a given case when testifying months later.  In almost all cases, the officers read their own reports before taking the stand — and then testify essentially to what they read in the report.  And in DUI cases, they are increasingly testifying based upon a fictional "xeroxed" case.

For example, California attorney Jon W. Woolsey got a court order requiring the California Highway Patrol to turn over any templates or forms used by the officer who arrested his client for DUI.  The following is the template that was used:
 


FIELD SOBRIETY TESTS

All FST’s were explained and demonstrated.  I asked Name if he/she understood each test completely and he/she stated that he did.  All tests were performed on a Location dirt/asphalt Parking lot/Shoulder that was free of debris.  The weather was cool, clear/cloudy, and daylight/dark.    

1)Horizontal Gaze Nystagamus:

Name eyes showed lack of smooth pursuit, distinct nystagmus at the extremes and an onset prior to 45 degrees.  Name’s eyes showed vertical gaze nystagmus.        


2)One leg stand:
Name lifted his/her right/left foot and dropped it immediately on the count of 1000. 

3)Romberg:Name estimated 30 seconds in 0000 seconds.  Name body swayed in a circular motion 1 to 2 inches from center of mass. 

4)Finger Count:I explained the test to Name 

5)Preliminary Alcohol Screening Device:

I admonished Name regarding the Preliminary Alcohol Screening Device (PAS) and he/she agreed/refused to take the test.  I administered the PAS to Name at 0000 and 0000 hours with BAC results of .000% and .000%.


Other Factual Information:

All times are approximate and may vary from the times on the Preliminary Alcohol Screening Device, the breath test and times provided to me by dispatch.


First Observations:

On 0-00-07 I was on routine patrol in a fully marked CHP patrol vehicle, with my partner officer nnn.  I was traveling


Observations After Stop:
I contacted the driver and advised him/her the reason for the stop.  As I spoke with the driver I smelled the strong odor of an alcoholic beverage emitting from his/her breath.  I noticed that the driver had red watery eyes, as well as slow and slurred speech.  I asked the driver for his/her driver’s license, which he/she provided me.  I identified the driver using his/her California Driver’s License as John Doe 00-00-00. I asked the driver if he/she had anything to drink and he stated, “.”  I asked the driver to exit his/her vehicle and meet me at the right front of my patrol vehicle.  I noticed that as the driver walked he had an unsteady gate.  As I spoke with the driver I noticed that he/she had an odor of an alcoholic beverage emitting from his/her breath and person.  I also noticed that the driver was unsteady on his/her feet swaying in a circular motion 1 to 2 inches from center of mass, he/she had slow slurred speech, and red and watery eyes.  I advised the driver that I smelled a strong odor of alcohol emitting from his/her breath and asked him/her how much he/she had to drink and he/she stated, “—-.”  I explained and demonstrated several FST’s to Name, which he/she could not complete as explained and demonstrated. 

Arrest:
  Based on my observations of Name’s driving, Name’s objective signs of alcohol intoxication, and his/her performance on the FST’s, I formed the opinion that Name was driving under the influence of an alcoholic beverage and unable to safely operate a motor vehicle.  I placed Name under arrest for 23152 (a) CVC at 0000 hours.  I advised Name of implied consent and he/she chose the blood/breath test.  I booked Name into the Sonoma County Jail.

Recommendations:

I recommend a copy of this report be forwarded to the Sonoma County District Attorney’s for review, and that Name be prosecuted for violation of 23152 (a) CVC driving under the influence of an alcoholic beverage, and _____




Basically, the report tells the officer what he should have seen — not what he actually saw.   And as any honest cop will tell you, drunk driving cases rarely follow such a neat, pre-described script.  But it is convenient.  And avoids messy complications – like the actual facts.   

One size fits all.
 

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