Archive for September, 2009

The DUI Double Standard

Monday, September 7th, 2009

I've  written ad nauseum about the double standard that is pervasive when it comes to citizens accused or convicted of drunk driving.  See, for example, The DUI Exception to the Constitution.  The following news story is only the latest reflection of this neo-prohibitionist attitude:

County Wants DUI Convicts to Pay for Jail Stay

Tucson, AZ.  Sept. 6 — If Pima County officials have their way, more convicted drunken drivers will soon have to pay for the privilege of eating and sleeping at the county's Adult Detention Center.

Jail officials recently met with judges and top prosecutors to remind them that they have the authority to make convicted drunken drivers reimburse counties for the cost of locking them up — which the jail officials want them to do.
Although the law has been on the books since 1997, and prosecutors include it in plea agreements, judges have not been consistently imposing the fee, said Jan Kearney, presiding Pima County Superior Court judge…

Kearney and Superior Court Judge Richard Fields said the chances of judges imposing the fees remains unlikely, for the same reason they haven't been regularly imposed in the first place.

Drunken driving is one of the most expensive crimes to commit in terms of the fines and fees required by state lawmakers and fighting at trial, Fields said…

"I don't fault the sheriff at all for asking, but the reality is we have to make an assessment of what defendants can afford to pay," Fields said. "In the end, you can only get so much from folks."
Kearney agreed, noting that there is no point assessing reimbursement fees knowing they won't get paid and knowing the defendant would end up in jail again for not paying them.

So…why aren't there laws requiring other prisoners to pay for the "privilege" of being jailed – rapists and child molesters, for example?  Why only for DUI?

Interesting that the two judges don't object to forcing drunk drivers to pay for their own imprisonment  because it's discriminatory and unfair.  Their only objection is a practical one:  they've already been penalized so much there's no more money to be had.


DUI Cops Inspired by CIA?

Thursday, September 3rd, 2009

The latest news from the front in MADD's "War on Drunk Driving"….

Man Says Police Forcibly Collected Urine Sample

Lawrenceburg, IN.  Sept. 3 — An Indiana man has filed a lawsuit claiming that police forcibly withdrew urine from his body during a drunken driving arrest.

 According to the suit, police arrested Jamie Lockard, 53, on suspicion of drunk driving in March.

 A Breathalyzer test showed he was under the legal limit, but Officer Brian Miller doubted the findings.

 Lockard and his attorney claimed in the suit that police took him to Dearborn County Hospital and forced him to submit to a urine test.

Police said they obtained a warrant, but Lockard's attorney said his client was shackled to a gurney and had a catheter inserted against his will.

 "It has to be executed reasonably," said attorney Doug Garner. "No one would say this is reasonable behavior. It's reprehensible that anyone could think that this is appropriate."

 The test showed that Lockard's blood-alcohol level did not exceed Indiana's legal limit, police said.

 Garner said the police officer did not apologize, but instead charged Lockard with obstruction of justice.

Hmmm…Breath test shows suspect is innocent…but he "flunks the attitude test", so…cop decides to administer "attitude adjustment" therapy…test confirms innocence…cop covers ass by arresting suspect for "obstruction of justice".

I'm surprised the cop didn't use the catheter to extract a confession.

You think this was just an aberrration?  An isolated instance of a bad cop?  Take a look at a similar story from Washington State I posted on a few months ago:  Catheter Forced Up Penis After DUI Arrest.  Or how about cops jamming needles into handcuffed suspects in the backs of their cars?  See Forced Blood Draws by Cops in Back Seat and Blood Draws in the Back Seat by the Dashboard Light.

Welcome to "The War".

(Thanks to David O'Shea.)


The Disappearing Right to Jury Trial…in DUI Cases

Tuesday, September 1st, 2009

Ok, the cop said I failed the field sobriety tests, but I have an injured knee and I was really nervous – and, anyway, I only had two drinks and I’ve got witnesses. No matter what the police say, I can tell my side of the story to my fellow citizens and let them decide. Right?

Not necessarily…

This right to jury trial, handed down centuries ago from England’s Magna Carta, was considered so fundamental that it is included in the Sixth Amendment to the Constitution.  And the Constitution makes no exceptions to this sacred right to trial by a jury of peers.

So why do some states today deny a person accused of drunk driving a jury trial? Why, for example, does an American citizen arrested in New Jersey have to accept the decision of a politically-appointed judge? After all, the Sixth Amendment is pretty clear on the subject:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…

How did the government get around this fundamental right? Well, once again they started whittling away by playing around with words.  As Humpty Dumpty said to Alice long ago, “A word means just what I choose it to mean, neither more nor less”.

It started some years ago when the federal courts decided that the framers of the Constitution didn’t really mean “in all criminal prosecutions”. So they changed one little word. They said what the framers really meant was that there was a right to jury trial in “serious” criminal prosecutions — not in “petty” ones. Duncan v. Louisiana, 391 U.S. 145 (1968).

Hmmmm…So what is “serious”? Well, a couple of years later, the Supreme Court decided that there was no right to a jury trial if the maximum authorized prison sentence did not exceed six months. Amazingly, going to jail for half a year was not "serious" enough to justify giving a citizen a right to trial by his peers!

The Court added, however, that a defendant could have a right to jury trial “only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a “serious” one”. Baldwin v. New York,  399 U.S. 66 (1970).

Well, what about DUI cases? They usually involve maximum sentences of six months in jail — and a bunch of other stuff:  fines, license supensions, DUI schools, ignition interlock devices, 3-5 years of probation. And the possibility of even stiffer punishment for a repeat offense. Doesn’t that show that lawmakers think drunk driving is pretty serious?

Inevitably, a citizen accused of DUI and (inevitably) convicted by a judge in Nevada took the case up to the U.S. Supreme Court. With all the additional punishment over and above the six months in jail, his attorney argued, wasn’t it “serious” enough to have a right to a jury?

No, the Court said: “Considering the additional statutory penalties as well, we do not believe that the Nevada Legislature has clearly indicated that DUI is a “serious” offense.” Blanton v City of North Las Vegas 489 U.S. 538 (1989).

Hmmm…..Drunk driving seems “serious” enough to justify ever-harsher DUI laws because of the oft-mentioned “carnage on the highways” — but apparently not “serious” enough to give a citizen his constitutional right to a jury trial.

We’ve come a long way since those historical words “In all criminal prosecutions…”