Archive for November, 2009

No Surprise: Dirty DUI Cop Goes Free

Friday, November 6th, 2009

I’ve posted in the past about so-called "DUI Super Cops", who get promotions, awards and lots of money by racking up huge numbers of drunk driving arrests — legitimate or not.  See, for example, DUI SuperCops and SuperCops…and SuperCons.  I’ve also written about some of them who’ve been caught.  See How To Be a "Top Cop", Another DUI "SuperCop" and SuperCops: The Smoking Gun,   One of the more recent was a Chicago cop, decorated by MADD and recently indicted for making false arrests with falsified evidence.  See The Latest DUI SuperCop.

Yesterday, that dirty cop got the kind of justice typical in the DUI field: He went free but the hundreds of innocent people he framed stand convicted.

Judge Drops Case Against Cop Honored for Hundreds of DUI Arrests

Police, prosecutors mishandled evidence, jurist says

Chicago, IL.  Nov. 5 –  The criminal case against Chicago’s most prolific officer on DUI arrests fell apart in court Wednesday when a Cook County judge ruled that police and prosecutors mishandled evidence…

Haleas made 718 arrests in 2005 and 2006 and was the primary witness in hundreds of DUI cases, garnering a "Top Cop" honor from the Alliance Against Intoxicated Motorists for having the most DUI arrests in the state…

Judge James Obbish dismissed the indictment against Officer John Haleas, siding with the defense that forbidden evidence from the Chicago Police Department’s internal probe had made its way into the criminal case.

Despite a former prosecutor’s testimony that he carefully excluded any information from a statement given by Haleas to department investigators, Obbish said he believed the statement had been improperly considered in the decision to press charges against the officer. Obbish said he based his decision on an internal affairs sergeant’s testimony that he briefed the prosecutor on the forbidden evidence.

A U.S. Supreme Court case prohibits statements by officers in administrative disciplinary proceedings from being used against them in criminal cases.

It was unclear why the internal affairs investigator would not have steered clear of bringing up the statement in his dealings with prosecutors.

Unclear?  I don’t think so….



“Due Process” for DUI License Suspensions

Wednesday, November 4th, 2009

So you got stopped last night and arrested for drunk driving. And right after the Breathalyzer showed a blood-alcohol reading of .12%, the officer confiscated your driver’s license and gave you a a piece of paper that said it was immediately suspended.

What happened?, you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about "due process": Can they suspend my license for DUI before giving me a chance to defend myself?

Good questions.

The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) DUI who (1) has a .08% breath reading, or (2) takes a blood or urine test (which will be analyzed later), or (3) refuses to take any test. This means immediately:  the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you.

Viewed another way, the officer in a DUI case is constable, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it!

So, again: How can they do that in America?

Let’s go back a few years….At first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called "APS" laws (the phrase stands for "administrative per se", referring to the "per se" crime of .08%, as opposed to the crime of driving under the influence of alcohol). They justified this by saying that a license was a "privilege", not a "right" — and since the license holder had no rights, the state could do what it wanted.

Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.

The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts.)

MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced states into adopting APS suspensions — or else no highway funds.  Do these APS hearings in DUI cases provide due process? In other words, how fair are they?

Let’s take California’s APS hearings. They are conducted by a "hearing officer". Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate.

So who is the prosecutor? He’s, well, the same guy.

That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can object to the driver’s evidence — and then sustain his own objection! Not too surprisingly, the DMV wins about 95% of these DUI hearings.

That’s called "due process" in a drunk driving case.