DUI BLOG

We all know about the federal government’s MADD-influenced "War on Drunk Driving" during recent years, forced on the states with the threat of withholding highway funds.  More recently, however, we’ve learned that driving while using a cell phone — and especially driving while texting ("DWT") — is actually more dangerous to human life.  See my post a few days ago, Inebriated or Texting: Which is More Dangerous When Driving?.  

It now turns out that the feds have been covering up these studies and statistics for years — as they ratcheted up their crack-down on DUI.  From the New York Times:

U.S. Withheld Data on Risks of Distracted Driving

New York, NY.  July 20 – In 2003, researchers at a federal agency proposed a long-term study of 10,000 drivers to assess the safety risk posed by cellphone use behind the wheel.

They sought the study based on evidence that such multitasking was a serious and growing threat on America’s roadways.

But such an ambitious study never happened. And the researchers’ agency, the National Highway Traffic Safety Administration, decided not to make public hundreds of pages of research and warnings about the use of phones by drivers — in part, officials say, because of concerns about angering Congress.

On Tuesday, the full body of research is being made public for the first time by two consumer advocacy groups, which filed a Freedom of Information Act lawsuit for the documents…

“We’re looking at a problem that could be as bad as drunk driving, and the government has covered it up,” said Clarence Ditlow, director of the Center for Auto Safety….

Who covered it up?  According to officials interviewed by the New York Times, "the House Appropriations Committee and groups that might influence it, notably voters who multitask while driving and, to a much smaller degree, the cellphone industry".
 

As many of you may know, I’ve written and lectured ad nauseum about the extensive loss of constitutional rights in drunk driving cases.  See The DUI Exception to the Constitution.  For those who are unclear what this means, the following from today’s Washington Post presents a clear example:

A Valid Legal Theory That Crumbles With Each DUI Arrest

Washington, D.C.  July 23 – Drunk drivers and potheads, rejoice. If you get caught, the Supreme Court has made it easier for you to beat the rap..

That pesky Bill of Rights is creating hurdles for the police again. The justices ruled 5 to 4 last month that prosecutors can’t make their cases by relying just on a document like a lab report (yes, it was marijuana) or breath test printout (he blew twice the legal limit, your honor). Now, the state must also make available as witnesses the lab technicians, breathalyzer operators or other individuals who prepared the documents.

The court said that’s necessary because of the Sixth Amendment, which guarantees defendants’ rights to confront their accusers at trial. The argument boils down to "You can’t cross-examine a machine." The ruling is right in theory but really wrong in practice…

The ruling is going to force a lot of costly changes with little practical long-term benefit. It will require new laws and court procedures, and cost a lot of money to hire and train additional forensic technicians and other employees, to make it work.

Worse, it hands a new weapon to defense lawyers that’s going to benefit them mostly in battles over procedure rather than justice. Because the state won’t be able to produce witnesses in many cases, defense lawyers already are saying they expect to win more acquittals at trial…

Stephen Saltzburg, professor of criminal law and procedure at George Washington University, said Scalia was right to say that scientific tests are a kind of testimony that defenders need to be able to challenge. But he added that the dissenters "had a very strong argument that perhaps there could be an exception for these highly reliable mechanical tests that didn’t exist when the framers wrote the Sixth Amendment."

Highly reliable? Apparently the good professor has never encountered one of these notoriously inaccurate and unreliable machines in his classroom.  See, for example, How Breathalyzers Work (and Why They Don’t).  Maybe if he was to serve on a jury and listen to the facts during cross-examination he might understand. 

Oh, right.  Accused citizens shouldn’t be permitted to question the evidence against them…at least, not in drunk driving trials. 

It’s a real shame about that "pesky Bill of Rights"….
 

Which is more deadly – driving while intoxicated or driving while texting?  Ok, so….which is a serious crime and which is not?

DWT Should Be as Socially Unacceptable as DUI

Halifax, Nova Scotia.  July 12  – DRIVING while intoxicated has become such a social taboo that most people recognize the acronym DUI (driving under the influence) used by police and prosecutors, and rightly so. But according to a growing body of research and empirical observation, DWT is a potentially worse hazard than DUI, and should be just as socially unacceptable as driving drunk.

DWT? That would be "driving while texting" (sub-category: driving while tweeting) — the most pernicious of a variety of distempers afflicting our culture as a consequence of pandemic cellphone addiction.

According to a U.K. Transport Research Laboratory study, commissioned by the Royal Automobile Club Foundation, motorists sending text messages while driving are "significantly more impaired" than ones who drive drunk. The study showed texters’ reaction times deteriorated by 35 per cent, and a whopping 91 per cent decrease in steering ability, while similar studies of drunk driving indicate reaction time diminishment of about 12 per cent. By that measure, DWT is three times more dangerous than DUI, and should logically be treated as severely, if not more so, both under the law and in terms of social censure…

Ongoing surveys by the U.S. National Highway Safety Administration show 85 per cent of all auto crashes and 65 per cent of all near-crashes result from distracted driving.

Laws banning texting behind the wheel are relatively rare as yet. Only a handful of U.S states have full or partial bans in place…

Hmmmm….Wonder why the folks screaming fatality statistics at MADD have been so silent?  Maybe it doesn’t fit their Prohibitionist agenda? 
 

Traffic Enforcement Initiative Planned for Wednesday

Erie, PA.  July 13  –  State police will ramp up patrols of highways on Wednesday as a part of a tri-state traffic enforcement program.

Pennsylvania State Police, in a joint effort with the Ohio Highway Patrol, New York State Police and U.S. Border Patrol, will target aggressive driving, impaired driving and speeding during a 12-hour period.
 

Uh…Border Patrol?
 

(Thanks to Andre)
 

While MADD continues to praise the efficacy of DUI roadblocks (aka "sobriety checkpoints"), most experts have come to recognize that they are simply ineffective at apprehending drunk drivers.  See Do DUI  Roadblocks Work? and Do DUI Roadblocks Work? (Part II).  But as I’ve written in earlier posts, local government has awakened to the fact that they are very effective at one thing:  raising desperately needed money.   See DUI: Government’s Cash Cow, How to Make a Million in the DUI Business and What if the Cash Cow Goes Dry?.     

It is, of course, normally a violation of the Constitution’s Fourth Amendment to set up roadblocks to issue tickets for outdated registration, equipment defects, outstanding warrants, etc.  But the Supreme Court carved out one exception to the 4th Amendment: roadblocks to catch drunk drivers.  And, well, if in the process the cops find no proof of insurance or an expired license, then those are "incidental" to the purpose of the roadblock and therefore permitted.

Problem:  "sobriety checkpoints" have simply become subterfuges for issuing income-generating tickets.  See for example, Another "Successful" DUI Roadblock: 3000 Drivers Stopped, 0 DUIs in which there were 177 citations, 84 vehicle impounds — and no DUI arrests.   The following recent news story is typical:

DUI Checkpoint Stops 1,131 Vehicles

Gaineseville, FL.  July 6  – DUI checkpoint over the holiday weekend resulted in 10 people being arrested and more than 100 drivers being issued traffic citations.

"We conduct these checkpoints to enforce and to educate," Riordan said. "It’s a way for us to bring the public’s attention to things like faulty equipment they need to fix as well as being a way for us to get people out from behind the wheel who do not belong there."

Although no one was arrested for DUI, FHP said the following actions were taken during the checkpoint:

–Two arrested on outstanding warrants.

– Seven arrested on felony charges, including six on drug-related charges.

– One arrested for misdemeanor drugs.

– 104 traffic citations issued.

– 10 faulty equipment warnings were issued.

Repeat: the Supreme Court made a roadblock exception to the Constitution for one limited purpose only:  apprehending drunk drivers – not "to educate", not "as  a way for us to bring the public’s attention to things like faulty equipment".

Once you start whittling away at the Constitution, it’s kind of hard to stop….
 

I’ve expounded on this blog at great length in recent years on the unreliability and inaccuracy of the various machines used to measure the breath of citizens accused of drunk driving.  See for example,  "Trial by Machine "– But How Good Are the Machines?.  I’ve also blasted the unconstitutional laws of most states which presume the accuracy of these machines.  See If You Can’t Prove It, Make the Defendant Disprove It.   In many cases, as in my home state of California, the defense is even prohibited from offering critical scientifically-accepted evidence of the machine’s defects.  See DUI and the Presumption of Guilt.

A classic example of this law-trumps-science is the banning of evidence of partition ratio.  Simply put, the machines all automatically convert the amount of alcohol tested in the tiny amount of breath taken from the suspect.  The internal computer multiplies the amount by 2100 — using the average ratio of alcohol in blood to alcohol in breath — to estimate the amount of alcohol in the suspect’s blood.  Problem:  We are not all average.  And ratios vary from 1300:1 to 3500:1. 

Yesterday, the California Supreme Court ruled that a defendant should be permitted to defend himself with that widely-accepted scientic fact. (And, I’m proud to say, the Court cited my book California Drunk Driving Defense three times as authority in its decision.)

California Supreme Court Says Defendants Can Challenge

Breathalyzer Results

Amazing.  It takes a Supreme Court ruling to allow a citizen accused of DUI to defend himself with established scientific truth. 

Suppose a police officer asks or orders an individual to drive a vehicle — and then arrests him for DUI when he complies? This situation comes up more often than you might think. Take, for example, the following case that eventually made its way to the New Jersey Supreme Court….

The defendant asked his brothers at a wedding reception to drive him home because he was too intoxicated to drive. In the parking lot, however, the brothers got into a fight, attracting the attention of local police. One of the officers struck a brother with his nightstick. The defendant asked the officer to quit hitting his brother. The officer replied by ordering him to leave the parking lot. When the defendant did not immediately comply, the officer repeated the order and then forcefully escorted him to his truck. The defendant obediently got into the vehicle, started the engine — and backed into a police car. He was arrested for drunk driving.

At trial, the judge ruled that the defendant had failed to prove entrapment or duress as a defense, and he was convicted. On appeal, however, the conviction was reversed on grounds of quasi-entrapment — that is, the defendant should have been acquitted if he could show that but for the officer’s order to leave in the vehicle he would not have driven. The prosecution appealed this reversal to the state’s supreme court.

Incredibly, the Supreme Court reversed the lower court and reinstated the conviction. Its reasoning? "Obviously," the court said, "if the law were to permit [drunk drivers] to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear".

The court continued its twisted logic: "No one ordered the defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through the use or threats of violence. The police officers merely ordered defendant to get in his truck and leave the scene of the fight…." (Emphasis added)  State v. Fogarty, 607 A.2d 624.

This "no win" scenario is fairly typical of what I have referred to in earlier posts as "the DUI exception to the Constitution".