Archive for February, 2010

Double Punishment in DUI Cases

Friday, February 26th, 2010

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 of .08%, in most states administered by its department of motor vehicles, and (2) the criminal prosecution for the two separate offenses of driving under the influence of alcohol (DUI or DWI) and driving with .08%,  which takes place in the courts.

Let’s take a closer look at that second proceeding, the criminal charges in the courts….The accused allegedly engaged in a single act of driving.  Yet, he is being prosecuted in court for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses (although he can only be punished for one). How is this possible?

But what about that first proceeding? The driver has already been punished by another state agency (the DMV) for driving over .08% by having his license suspended (or for refusing to take a chemical test). 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 a second time. The sentence may involve jail, fines, DUI schools, ignition interlock devices, community work, probation — and a second restriction or suspension of his license.

How many times can the state prosecute and 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, coming to different conclusions, but eventually reached a consensus 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 usually 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 – so long as you don’t punish him for both. 

Hmm….isn’t that just word games?  Defining a single act in different ways?  Couldn’t you define it ten different ways and get ten different crimes to charge the citizen with? 

And what about that first license suspension?  What about punishing the driver by suspending his license when he’s arrested — and then punishing him again in court? In fact, punishing him in court with a sentence that probably includes another license suspension?

This one caused the appellate courts a bit more trouble. This wasn’t a case where the person was 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 that pesky Constitution.

The courts could not agree. Some said that there was no double jeopardy or double punishment 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 1989 U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435) 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 help 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 long-standing 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 or multiple punishment. It just looks an awful lot like it.

Somehow, the words of Lewis Carroll keep coming to mind:

"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."


Due Process and DUI License Suspensions

Friday, February 19th, 2010

So you got stopped last night and arrested for drunk driving. And right after the Breathalyzer showed a blood-alcohol reading of .09%, the officer confiscated your driver’s license and gave you an official notice of immediate suspension.

"What happened?", you ask. Can they do that? I thought I was presumed to be innocent, and the state had 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, or (3) refuses to take any test. This means immediately — on the spot: 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 cop, 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?

Well, 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, which is for the courts). 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" simply means fairness — 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 and the suspension merged with the criminal proceedings.)

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 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 introduce his evidence against you and then make objections to your evidence — and sustain his own objections! And eventually decide whether you win or he does!

What is the DMV’s evidence?  In California, it’s a brief printed form signed by the arresting officer — i.e., the entire case is hearsay.  So doesn’t the Constitution give the accused a right of confrontation — the right to cross-examine his accuser?  Well, if you want to cross-examine him, you have to subpoena him yourself — often a difficult procedure.  Oh, yes…and you have to pay his salary for his time (usually overtime).

Not too surprisingly, the DMV wins about 96% of these DUI hearings.

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


The New “Highway Robbery”: Money-Making DUI Roadblocks Growing

Sunday, February 14th, 2010

I’ve commented repeatedly in the past about how DUI roadblocks (MADD prefers the less oppressive term "sobriety checkpoints") are inefficient at apprehending drunk drivers.  See Do DUI Roadblocks Work?Do DUI Roadblocks Work (Part II),  As a means of apprehending drunk drivers, even law enforcement admits they are only effective as a deterrent — i.e., keeping people off the streets.  See DUI Logic: Roadblocks Effective – Because They’re Inefective, Purpose of DUI Roadblocks: "Shock and Awe".

So why are cops using more and more DUI roadblocks?  Simple:  They are goldmines.  See DUI: Government’s Cash Cow, What if the Cash Cow Goes Dry? and How to Make a Million in the DUI Business.

A quick refresher:

1.  It is illegal to stop a citizen without probable cause to believe they have violated the law.

2. A roadblock constitutes a stop without probable cause.

3.  The US. Supreme Court ruled in Michigan v. Sitz that although a DUI roadblock does constitute a violation of the Fourth Amendment, the governmentalal interest in reducing drunk driving fatalities outweighs the "minimal intrusion" into a citizen’s constitutional rights. 

4.  Under the decision, roadblocks can only be for the purpose of arresting drunk drivers.  However, as with any investigative detention, if the officer finds other violations of law during the roadblock stop, he does not have to ignore them.

So…A cop can’t stop you to check for registration or license, possible equipment violations, open containers, seat belt checks, etc.  But if they throw up a DUI roadblock, they can screen hundreds of drivers for anything they can find.  Result:  citations, arrests, impounded vehicles — and an invaluable source of revenue for local governments.  See, for example, DUI Roadblock: 1131 Stops, 114 Tickets, 0 DUI Arrests, Another "Successful" DUI Roadblock: 3000 Drivers Stopped, 0 DUIs.

The following is a story from yesterday’s news by investigative reporter Ryan Gabrielson, winner of the 2009 Pulitzer Prize for local reporting:   

California Cops Exploit DUI Checkpoints to

Bring in Money for Cities, Police

California police are turning DUI checkpoints into profitable operations that are far more likely to seize cars from unlicensed minority motorists than catch drunken drivers.

Berkeley, CA. Feb. 13 – An investigation by the Investigative Reporting Program at UC Berkeley with California Watch has found that impounds at checkpoints in 2009 generated an estimated $40 million in towing fees and police fines – revenue that cities divide with towing firms.

Additionally, police officers received about $30 million in overtime pay for the DUI crackdowns, funded by the California Office of Traffic Safety…

In the course of its examination, the Investigative Reporting Program reviewed hundreds of pages of city financial records and police reports, and analyzed data documenting the results from every checkpoint that received state funding during the past two years. Among the findings:

• Sobriety checkpoints frequently screen traffic within, or near, Hispanic neighborhoods. Cities where Hispanics represent a majority of the population are seizing cars at three times the rate of cities with small minority populations. In South Gate, a Los Angeles County city where Hispanics make up 92 percent of the population, police confiscated an average of 86 vehicles per operation last fiscal year. 

• The seizures appear to defy a 2005 federal appellate court ruling that determined police cannot impound cars solely because the driver is unlicensed. In fact, police across the state have ratcheted up vehicle seizures. Last year, officers impounded more than 24,000 cars and trucks at checkpoints. That total is roughly seven times higher than the 3,200 drunken driving arrests at roadway operations. The percentage of vehicle seizures has increased 53 percent statewide compared to 2007.  

• Departments frequently overstaff checkpoints with officers, all earning overtime. The Moreno Valley Police Department in Riverside County averaged 38 officers at each operation last year, six times more than federal guidelines say is required. Nearly 50 other local police and sheriff’s departments averaged 20 or more officers per checkpoint – operations that averaged three DUI arrests a night…

With support from groups such as Mothers Against Drunk Driving, California more than doubled its use of sobriety checkpoints the past three years.

State officials have declared that 2010 will be the “year of the checkpoint.” Police are scheduling 2,500 of the operations in every region of California. Some departments have begun to broaden the definition of sobriety checkpoints to include checking for unlicensed drivers…

It’s probably just a coincidence that California, on the verge of bankruptcy, has decided to make this the "year of the checkpoint".

(Thanks to David Baker.)


Red Bull and Driving Don’t Mix

Friday, February 12th, 2010

A recent university study confirms earlier research indicating that consuming energy drinks while drinking alcohol can reduce the symptoms and sensations of intoxication from the alcohol.

Study Links Alcoholic Energy Drinks to Intoxication, Drunk Driving

Feb. 11 — Bar patrons who consumed energy drinks mixed with alcohol were three times more likely to leave drunk and four times more willing to drive drunk compared to patrons who drank alcohol alone, according to researchers who surveyed college-aged drinkers as they left bars.

The University of Florida researchers surveyed more than 800 bar patrons at random between the hours of 10 p.m. and 3 a.m., and also collected breath samples to test blood-alcohol content (BAC). The average BAC for alcoholic energy drink consumers was 0.109 percent, well above the legal standard for intoxication.

Patrons who consumed alcohol mixed with highly caffeinated energy drinks like Red Bull also were more likely to have consumed alcohol for longer periods of time, and left bars later than other drinkers.

The study was led by Dennis Thombs of the school’s College of Public Health and Health Professions. "His approach is unique because it was conducted in a natural drinking environment — college bars," said Wake University’s Mary Claire O’Brien, author of previous research on alcoholic energy drinks. "His results clearly support the serious concern raised by previous research, that subjective drunkenness may be reduced by the concurrent ingestion of caffeinated energy drinks, increasing both the likelihood of further alcohol consumption, and of driving when intoxicated."

Friends don’t let friends drive wired.


Latest Breathalyzer Proves No More Reliable Than Others

Monday, February 8th, 2010

As readers of this blog are aware, one of my pet peeves is the public’s blind trust in the little metal boxes that analyze a DUI suspect’s breath and spit out a number that supposedly represents the amount of alcohol in his blood.  The simple, scientifically proven fact is that all the various models of these so-called "breathalyzers" are both inaccurate and unreliable.  See, for example, How Breathalyzers Work (and Why They Don’t).

Ask yourself:  If these machines are so trustworthy, why do all the manufacturers keep coming out with new, "improved" versions?  See "State of the Art" Breathalyzers: A History

One of the latest "improved" models is the Intoxilyzer 8000, manufactured by one of the biggest companies in the field, CMI, Inc., of Owensboro, Kentucky.  CMI has previously produced two of the most popular machines (in different versions tailored for local law enforcement preferences) — the Intoxilyzer 4011 and the Intoxilyzer 5000. 

So how good is this latest, "state-of-the-art" model? 

$7 Million DUI Tests Little Used

Columbus, OH.  Feb. 7 — In the nine months since state officials unveiled a new device hailed as a potent new weapon against drunken driving, the equipment has been used rarely and only in a few rural and suburban pockets of Ohio.

A federal grant provided $7 million to buy 710 portable breath testers in December 2008 despite warnings from attorneys, local judges and some scientists that the machines were unreliable and vulnerable to legal challenges.

The Intoxilyzer 8000 made its debut in Clermont County in May. Since then, the instrument has been used just 1,116 times, in five counties that, combined, have only 3 percent of Ohio’s population. Officials could not say how many drunken-driving convictions have resulted from the use of the instrument.

Priced at about $9,000 each, the Intoxilyzer 8000 is supposed to be a big step forward in efforts by police to take drunken drivers off the road…

Lawyers in several other states have been able to get thousands of convictions thrown out based on the refusal of the Intoxilyzer manufacturer, CMI Inc. of Kentucky, to turn over details of the machine’s operations.

But Fairfield driver Lindsey Fintak and other Ohio drunken-driving suspects apparently won’t be able to challenge Intoxilyzer results on that basis. A 1984 Ohio Supreme Court decision barred defendants from attacking the reliability of breath testers once they’ve been certified for use by the state Health Department…

So why are the manufacturers — including CMI — refusing to let anyone (even prosecutors and judges) look into the software that drives these machines?  In the one case where the manufacturer (Draeger) obeyed a court order — from the New Jersey Supreme Court — the machine involved (AlcoTest 7110) was found to use antiquated software that failed to meet even the most basic governmental and industrial standards.  See Secret Breathalyzer Software Finally Revealed

So how accurate and reliable are these machines that are used in court to establish guilt beyond a reasonable doubt?  Put simply, "Close enough for government work".

Finally, ask yourself:  When these machines constitute the sole evidence of an accused citizen’s blood-alcohol level, why are defense attorneys in Ohio not permitted to question their reliability in trial?