DUI BLOG

Last week I granted an interview which touched on a broad range of interesting subjects.  Videotapes on YouTube of the 50-minute interview may be of interest to readers of this blog, both attorneys and laymen…. 

     DUI: The nature of the crime  (5:29)

     What is wrong with the present system of drunk driving laws and law enforcement?  (3:48)

     Are tougher DUI laws making it harder to defend a DUI client?  (5:49)

     What advice do you have for drivers who are stopped for a possible DUI?  (6:22)

     What are the most serious consequences of a drunk driving conviction?  (2:04)

     What are the best DUI defenses?  (3:26)

     Can you get a fair trial in a drunk driving case?  (3:28)

     How hard is it to get a DUI charge reduced?  (3:07)

     How can an attorney become more effective at defending DUI cases?  (2:08)

     You’ve created the term "the DUI Exception to the Constitution":  Do you see a growing loss of constitutional rights generally?  (3:26)

     What tips do you have for attorneys representing a DUI client today?  (2:33)

     How have you become the best-known DUI attorney in the country?  (2:58)

     Many years ago you decided to represent DUI clients exclusively:  Why?  (5:33)

The interview and taping was conducted by representatives from MyDUIAttorney.org.   
 

Police agencies across the country continue to deny that they employ DUI quotas — which force officers to make unjustified stops and/or arrests.  See, for example, DUI Quotas, Yes We Have No DUI Quotas and "Inside Edition" Documents DUI Quotas Across the U.S.   A few agencies, however, actually brag about them. 

Deputies Get Quota for Hoopfest DUI Patrols

Spokane, WA.  June 26 – Spokane County sheriff’s deputies have been asked to contact at least three motorists per hour this weekend as part of extra impaired driving patrols…

A Washington State Patrol Cessna plane will be above the city today and Sunday to catch impaired reckless drivers.  When the plane isn’t up, the sheriff’s helicopter will be.

The sheriff’s office has scheduled extra patrols for impaired drivers and boaters.  Deputies have been asked “to make at least three motorist contacts per hour and to have a zero tolerance for impaired drivers.”…

So…Stop at least three citizens every hour on suspicion of drunk driving — whether there is any sign of impaired driving or not!  

There goes "probable cause" and the Fourth Amendment again:  the "DUI Exception to the Constitution".
 

About 20 years ago, I coined the phrase "The DUI Exception to the Constitution" to describe a disturbing but growing treatment of DUI as a "politically incorrect" offense.  Created and fostered by the demonization of the crime  by Mothers Against Drunk Driving, the pressures on legislators and judges — most of whom face MADD’s wrath at re-elections–  resulted in the steady erosion of  constitutional rights, accurate evidence and fair trials.

In today’s news: 

DUI Charge Without Being Seen Driving
 
Albuquerque, NM.  June 26 – The New Mexico Supreme Court has ruled that cops can arrest someone for drunk driving, even if they never saw that person driving. The court’s ruling centers around a case from December of 2007.

A mall employee tipped off Santa Fe police about Marcos Martinez, saying he was drunk and tried to unlock several vans before finding his and speeding off.

By the time police tracked down Martinez, using his license plate number, he was already home.  Officers say Martinez was falling-down drunk when he came to the front door. The officer felt the hood of Martinez’s van, and it was still warm. 

The officer never saw him driving but arrested him anyway.

Martinez fought the DWI charge and the case was dismissed, but the state’s highest court decided his aggravated DWI charge should stand.

“It shouldn’t just be a free pass because you were able to beat the police home," Albuquerque Public Safety Director Darren White said, 

Gary Cade with the Bernalillo County District Attorney’s office explained this change in policy now means, “The police will handle DWI’s like they handle felony crimes.” 

He went on to say that cops won’t need to spend time getting a warrant…

Officials hope this decision will encourage even more people to report suspected drunk drivers. 

 
In other words, all misdemeanor offenses must meet legal procedures such as observation of the offense and the need for warrants — except drunk driving, which will be treated as a felony.  

Yet another in the unending examples of what I labelled "The DUI Exception to the Constitution" 20 years ago.
 

How does a police officer testifying in a drunk driving trial recall every detail of a DUI investigation months earlier?

When an officer stops a motorist and suspects that he may be under the influence of alcohol, he begins to mentally record various observations….Was the driving erratic, and in what way? What was his reaction to the red overhead lights? How did he pull over and park? Was there an odor of alcohol on the driver’s breath, and how strong? Could it have come from the passenger? Was the driver’s face flushed, eyes bloodshot, speech thick and slurred? How did he respond to questions and directions? What were his answers to questions such as "Where are you going? What time is it? Have you been drinking? What? When? Where? How much?" Did he have a current license and registration? Did he fumble with his wallet pulling out his license? Stagger when stepping from the car? What did the passenger say? How did she appear? And so on.

Then there are the DUI field sobriety tests….How did he perform in the walk-and-turn test? Did he understand the instructions? Did he start before I told him to? How many steps out? How did he turn? How many steps back? Which of the 18 steps were off the line? Where did they land? Which, if any, were not heel-to-toe? Was he using his arms for balance? Did he say anything during the test?  Etc.

And the other three or four drunk driving field tests…

In the horizontal gaze nystagmus test ("Follow my pen with your eyes without moving your head"), was there "smooth pursuit" of the right eyeball? What did it look like? How many times was it given? Did "onset" of nystagmus occur before 45 degrees? At what degree? Was the white of the eye visible at the extreme range of the eye? Was there "distinct nystagmus" at this extreme? And what about all these observations in the left eye?

And maybe two or three other field sobriety tests: Rhomberg ("modified position of attention"), one-leg-stand, finger-to-nose, reverse count, or others.

And then the arrest and the breath test at the station: What was the procedure used to administer the test? What messages were displayed by the machine in preparation? Did the suspect say anything about a medical condition? How many breath samples were captured? Was there a blank test run before each sample test? What were the readings of the blanks? Of the suspect’s two breath samples? And so on….

In other words, there are a vast number of things to remember about what happened in the course of a properly conducted drunk driving investigation. And the officer may have to testify some day in trial about all of these things. This has to be done from memory and under oath.

How does he do it?

Well, typically the officer sits down an hour or two after the arrest and writes out a "DUI arrest report". This has to be from short-term memory (few officers attempt to write down notes in the field: it is usually dark, one hand is tied up with a flashlight and police policy requires that the "gun hand" be free at all times). This report may be only a couple of pages, or it may run to five or six pages. And this creates two basic problems….

First, how can the officer remember an hour or two later everything that happened? Imagine just one of the field sobriety tests, for example. In the walk-and-turn test, there are 18 steps — 9 out, 9 back. Most DUI reports have diagrams for the tests; in the walk-and-turn, there will usually be two arrowed lines, with the officer placing circles for the right foot and triangles for the left foot for each step on each of the two out-and-back lines: 18 circles and triangles. How is this officer able to recall an hour or two later each of 18 steps — and exactly where each landed in relation to the line, at what angle and whether heel-to-toe?

And this is just one test. What about the driving pattern, the symptoms, the defendant’s statements, his conduct, and all of the other details?

Second, how can the officer recall months later in trial everything that happened? He can’t just read from the report: He has to testify to what he knows — that is, to what he independently remembers happened.  He can’t simply testify by reading his report.

But here the law permits him an "out": He is permitted to "refresh his recollection" by reading the report after he is asked a question. Then he can testify with a newly "refreshed" independent memory.  In reality, of course, he is simply testifying to what is in the report. In most trials, the officer has also "refreshed his recollection" just before testifying, and/or does so repeatedly during his testimony.

Problem: The report only contains incriminating facts.

The officer was gathering evidence against the suspect: he only wrote down what he saw and heard that pointed to the defendant’s guilt. He did not bother to record facts which pointed to the defendant’s innocence. He did not, for example, write down that the defendant had no trouble maintaining his balance or that his eyes were not bloodshot or his speech not slurred.

In other words, in trial the officer is incapable of testifying to anything that indicated the defendant may not have been under the influence of alcohol. No matter how honest the officer is in his testimony, there is no way for him to "refresh his memory" about things — things pointing to innocence — that happened but which are not in the report. And there will be little if anything in that report which will give "the other side" of the story.

Put another way, the most important witness in the trial is mentally incapable of recalling any evidence which may point to the defendant’s innocence.
 

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, DWI or OUI) and driving with .08%, which takes place in the courts.

In other words, even though he only committed one act, the individual is being prosecuted 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?

It gets worse….

The driver has already been punished for driving over .08% (or for refusing to be tested) 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, DUI schools, ignition interlock devices, probation — and a restricted, suspended or revoked license.

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 what I’ve been calling for years "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 awfew years, 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 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 committing two different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC (or refusing to be tested). 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 multiple punishment since the DMV license forfeiture 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.”

As every experienced DUI attorney (and patrol cop) knows, DUI quotas commonly exist — despite the repeated denials of police bureaucrats.  See my past posts DUI Quotas, "Inside Edition" Documents DUI Quotas Across U.S. and "What DUI Quotas?". 

They may be unwritten, or disguised as "suggestions" or "guidelines", but the intent to the patrol cop is clear:  make the quota or else.  And the coercive effect of this can be considerable, leading many cops to make arrests where there may be insufficient reason to do so.

In today’s headlines:

Alabama Troopers at Birmingham Post Instructed to Cite More for DUI

Birmingham, AL.  June 13 —   The number of tickets for DUI written by state police from the Birmingham post doubled in March after a memo from the acting post commander threatened to punish any trooper who did not make at least three DUI arrests by the end of that month.

Trooper officials defended the memo from now-retired Sgt. Steve Bryant and obtained by The Birmingham News. The memo said each trooper should make at least three DUI arrests by the end of March, and that those who failed to do so could lose their day-shift assignments or opportunities for overtime pay…

"Initially, this issue is lose-lose for both sides of the table; the trooper on the roadway and the citizens of this area," said Whitney Polson, a DUI defense attorney in Homewood.  "The arrest determination should be based upon facts, not threats of lost pay and time away from the family," Polson said.

Polson and another attorney also said they believed the quota in the e-mail could cast doubt on the legitimacy of DUI arrests.

Phillip Price, a Huntsville attorney and author of the legal reference Alabama DUI Handbook, said he believes quotas exist in law enforcement but he had never seen it put in writing like that before…
 

I’ve posted well over 100 times during the past six years on this blog about the multitude of reasons why breath alcohol machines are both inaccurate and unreliable.  See, for example, How Breathalyzers Work (and Why They Don’t), Breath Alcohol Testing: "State of the Art"?, Breathalyzer Inaccuracy: Testing During the Absorptive Stage, "Close Enough for Government Work" and Why Breathalyzers Don’t Measure Alcohol.

In today’s news, just another example of the tens of thousands of American citizens who face "trial by machine"…and are wrongly convicted: 

 
Wash., DC.  June 10 – Nearly 400 people in Washington, D.C., have been convicted of driving while intoxicated based on faulty breath tests that calculated blood alcohol levels about 20 percent higher than the reality.

D.C. Attorney General Peter Nickles said the problem was caused when a police officer set improper baseline levels on the machines, the Washington Post reports. Nickles’ office is contacting the convicted drivers and their lawyers.

About 200 of those convicted spent some time in jail, the story says. At least one lawsuit has already been filed based on the revelation.

Nickles’ office launched an investigation after an outside consultant indicated a possible inaccuracy.

(Thanks to Steve Oberman, Nashville, TN, co-author of my book Drunk Driving Defense and Dean of the National College for DUI Defense.)
 

The drunk driving laws make it a criminal offense to drive a vehicle while under the influence of alcohol (DUI) or while having a blood-alcohol concentration (BAC) of .08% or higher. It is not, however, a criminal offense to be under the influence or to have a BAC of .08% while taking a breath test in a police station an hour or two after driving.

So how does the prosecution prove what the BAC was when the defendant was driving? It’s a problem…

They can try to guess what the BAC was in a DUI case — by projecting backwards, using average alcohol absorption and elimination rates, but it’s only a very inaccurate guess. The process is called retrograde extrapolation — a fancy name for trying to guess back in time. The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates at different times depending on many variables.

In one study, for example, researchers found a wide range of metabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. Dubowski, "Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects", Journal on Studies of Alcohol (July 1985).

As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged. From the recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma:

It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded. 21(1) Journal of Forensic Sciences 9 (Jan. 1976).

So, Mr. Prosecutor, you’ve got a breathalyzer reading of .10% an hour or two after the driving and the scientists say you can’t accurately project that BAC back to the time of driving: if the BAC was rising, it could have been a .07% or even lower. That kind of leaves you in a pickle. What do you do?

Simple: You just get the legislature to pass a law saying that the blood-alcohol when tested is the same as it was when driving.

What? But that’s not true: BAC constantly changes as alcohol is metabolized. How can we legally presume what we know is not true? Well, yes, but we can never really know, can we? And it sure makes the prosecutor’s job easier, doesn’t it? Let the defendant try to prove what his BAC was an hour or two earlier.

That’s right: Most states now have laws saying your BAC was the same 2 or 3 hours earlier — unless you can prove it wasn’t! Typical is California’s law:

It is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving. Vehicle Code sec. 23152(b).

Wait a minute….What about the State having the burden of proof — proof beyond a reasonable doubt? How can the law simply presume guilt and force the defendant to disprove it? What about the "presumption of innocence"?

Details, details…The important thing here is that we get these drunk drivers off the road, isn’t it?
 

When the police administer a breathalyzer, the suspect’s breath sample is analyzed — and then destroyed by purging it into the air. Although it is easy and inexpensive to save the sample so that it could later be independently analyzed by the defense, the U.S. Supreme Court in California v. Trombettaruled that there is no right to this. (See "Why Do Police Destroy the Evidence in DUI Cases?".)

Recognizing that an accused should have some minimal rights even in a DUI case, many states have enacted laws requiring the police to advise the suspect that he has the right to have an independent blood sample drawn so that it may be later analyzed and compared to the breath test results. California’s Vehicle Code Section 23614 is an example:

(a) ….a person who chooses to submit to a breath test shall be advised before or after the test that the breath testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later…

(b) The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcohol content of the person’s blood. If the person completes a breath test and wishes to provide a blood or urine sample to be retained, the sample shall be collected and retained in the same manner as if the person had chosen a blood or urine test initially. [italics added]

Sounds fair. Except officers don’t like handling a suspect’s urine or spending an hour or so finding a blood technician to draw a sample. Result: this law is commonly ignored by the police. (Some DUI report forms contain a place for the officer to indicate that he advised the suspect of the right to an independent test, and it is routinely checked off — and ignored.)

So what can a defendant do if this legal right is violated? Well, the statute clearly says "shall" advise and collect: it is mandatory, not optional. It would seem to follow that there would be some legal sanction for a willful refusal to follow this law.  Under Miranda, for example, a failure to advise a suspect of his rights results in the suppression of any statements.  Thus, the only meaningful remedy would be suppression of the breath test.

Wrong. Remember: This is a DUI case we’re dealing with. If you look closely, another little provision at the end of California’s statute adds the following:

(d) No failure or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcohol content of the blood of the person arrested.

Cute, no? The law gives you a "right", and then makes it unenforceable. It is, as we lawyers say, "a right without a remedy". And, of course, since there are no consequences for ignoring this advisement of the right to an independent test, most officers continue to ignore the law. Practically speaking, then, officers do not have to follow the law and advise the suspect of his right to an independent test.

There are some court decisions, however, which seem to say that interfering with attempts by the arrested person to have blood drawn may be grounds for suppression of the breath test. See, e.g., In re Martin, 58 Cal.2d 509. And many states will suppress breath test results if the police refuse to permit the suspect to obtain a blood sample. In State v. George, 754 P.2d 460, for example, the Kansas court ruled that breath results should have been suppressed where the arresting officer refused a suspect’s request for an independent test because of the time required to transport him to a hospital and find a physician.

Yet another example of "The DUI Exception to the Constitution".