DUI BLOG

 Ok, I guess I'm on another MADD rampage, but the following editorial in the San Francisco Examiner seems to indicate that the tide is turning:

MADD's New Focus: Prohibition

San Francisco, CA.  July 27 — Mothers Against Drunk Driving (MADD)  is suffering from mission creep. A victim of its own success, the non-profit group is now pursuing Prohibitionist anti-alcohol policies – such as calling for alcohol detectors in all cars – instead of focusing on its original goal of reducing drunk driving deaths.

“The public needs to realize that MADD isn’t the same group it was 20 years ago,” says American Beverage Institute (ABI) Managing Director Sarah Longwell.

MADD founder Candy Lightner agrees. The non-profit group she started in 1980 after her daughter was killed by a drunk driver “has become far more neo-prohibitionist than I had ever wanted or envisioned … I didn’t start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving.”

Part of the problem is MADD’s prior success in bringing the issue of drunk driving to the public’s attention.

“The biggest problem in reducing drunk driving fatalities now consists of the hard core of alcoholic drivers who repeatedly drive with BAC’s of .15 or higher,” says Dr. David Hanson, professor emeritus at the State University of New York/Potsdam. “But MADD has now decided to go after social drinkers and to eliminate driving after drinking any amount of alcohol beverage. This change appears to reflect the influence of a growing neo-prohibitionist movement within MADD.”

The change in focus has been accompanied by a change in the way MADD spends donor funds. The American Institute of Philanthropy recently downgraded MADD to a “D” in its 2010 Charity Guide and Watchdog Report, citing the group’s diminished focus on education and victim services in favor of fundraising and anti-drinking activism.

According to the AIP, MADD spent nearly double the average amount on fundraising, leaving just a little more than half of its revenue for programs. In 2008, despite declining revenue, two-thirds of its  budget – almost $30 million – was spent on staff salaries (which increased 56 percent).  Meanwhile, spending on community programs dropped 17 percent. It may be even lower than that, as MADD reportedly counts payments to professional fundraisers as charitable work, claiming they help educate potential donors.

Charity Navigator, which rates the effectiveness of various charitable organizations, also gave MADD just one out of four possible stars.

 In the "no comment necessary" department:

Mothers Against Drunk Driving Receives "D" Score
 

Goose Creek, SC.  July 26 – Mothers Against Drunk Driving (MADD) is in the hot seat after a dismal score from the American Institute of Philanthropy (AIP). The AIP Charity Guide and Watchdog Report gave MADD a "D" rating on a A-F scale in its 2010 report.

In today’s news, a perfect example of the idiocy of MADD’s holy crusade:  

Schumer: Steering Wheels Could Stop Drunk Driving

Elmira, NY.  July 23 — In the future, cars may be able to detect — through a driver’s skin — whether he or she is drunk, and prevent the engine from starting.

U.S. Sen. Charles Schumer, D-N.Y., was in Elmira on Friday to promote a bill that would fund research of alcohol detection devices that could make such a scenario possible.   Called the ROADS SAFE Act of 2010, or Senate bill 3039, the act would direct the National Highway Transportation Safety Administration to spend $60 million over five years to figure out whether it’s possible to make an alcohol-detecting ignition lock that is both reliable and affordable.

"There’s a real chance for a tremendous breakthrough that doesn’t prosecute drunk driving after the act, but prevents it," Schumer said during a news conference with area officials at the Hazlett Building…

Schumer said sensors that can detect blood alcohol content could be placed on steering wheels and driver’s seats. He said that technology is already in use in an alcohol-sensing bracelet, such as one worn by actress Lindsay Lohan.

"It detects through sweat that is always coming out of your pores, even when you can’t feel it, the legal limit of alcohol," Schumer said. "And when she was over it, it would go beep beep, and law enforcement would come get her."… 

Hmmm….Shutting down the car’s ignition if the steering wheel detects sweat from the hands.  Clever, except….uh, what about gloves?   

Gee, $60 million of your taxes and all that technology…foiled by a cheap pair of gloves!  So guess what now becomes standard equipment in cars in their…uh, glove compartments?  Or…maybe they could make possession of gloves in a car illegal?  Or maybe…

I think we’re going to need another $60 million.
 

For the past two decades, Mothers Against Drunk Driving has — very successfully — engaged in a holy war against drunk driving and underage drinking.  Through MADD’s political pressures on legislators and judges, the offense has been redirected from impairment to blood-alcohol levels, penalties have been radically increased, and constitutional rights have been repeatedly ignored. The offense has been demonized in the public eye to the point that it approaches the status of child molesting, and MADD continues to press for outlawing ever-lower blood-alcohol levels.

First, let’s get something clear:  drunk driving is dangerous.  That’s why we have DUI laws — not to punish the use of alcohol, but to punish those who represent a danger behind the wheel and thereby deter that person and others from endangering the public.  

The purpose, then, is protection of the public through deterrence of dangerous conduct.  It is not to punish people for drinking.  If the goal is to protect the public from the dangers of impaired driving, then , why is the focus today solely on alcohol?  As I’ve mentioned in previous posts, numerous studies all indicate that, for example, driving while using a cell phone, distracted driving (eating or putting on lipstick in the read-view mirror) and driving while drowsy are at least as dangerous as drunk driving.  See, for example, Drunk Drivers vs Distracted Drivers, Most Dangerous: Drunk, Drowsy or Distracted?, Alcohol vs Cell Phone: Which is More Dangerous? and Inebriated or Texting While Driving – Which is More Dangerous?.

Yet we largely ignore these types of life-threatening conduct, while continuing to focus laws and law enforcement on DUI.

Again, I’m not suggesting that we legalize drunk driving; it should be punished.  But the hysteria needs to be toned down, and the focus should shift to the danger that impaired driving of any kind represents — not to whether alcohol is involved or not.

From a recent news story:

Study: Radio Sports Can Distract Drivers

Wokingham, England.  July 2 — British researchers said a study indicates listening to sports on the radio while driving can be as dangerous as drunken driving.

The Transport Research Laboratory in Wokingham, England, said its study involving nine men and nine women ranging in age from 25 to 45 found reaction times were slowed by up to 20 percent when drivers were listening to sports, adding nearly 20 feet of additional stopping time for a car travelling 70 mph, the Daily Telegraph reported Friday.

"To put this into context, this increase in distance traveled is 10 percent further than the additional distance when driving with a blood alcohol level at the U.K. legal limit", the report read.

Perhaps MADD should concentrate on accident prevention, not on returning to prohibition.  
 

In the current climate of political correctness, drunk driving is approaching the status of child molesting — and legislators, police, prosecutors and judges seem hell-bent on expanding the offense far beyond any reasonable interpretation. A recent example:

Appeals Court Nullifies Drunk "But Not Yet Driving" Offense

Pewaukee, WI.  July 14 — A state appeals court nullified a drunk driving arrest today against a woman who was nabbed in Pewaukee before she could even start her car.

Brittany Meye was arrested in January of last year, just after she got into her car at a gas station.  A police officer approached her, noticed a strong scnet of alcohol on her breath, and arrested her before she could start the car and pull away.

The Second District Court of Appeals in Waukesha said it’s wrong to suspect that a driver is drunk, just by smellin alcohol on people’s breath before they get behind the wheel.

Pretty obvious, right?  Then why was Ms. Meye arrested by the cop — and charged by the prosecutor?

And if you think this is an isolated example, see a few of my earlier posts: State Supreme Court: DUI Doesn’t Require Driving, Convicted of Drunk Driving…Without Driving, Sleeping Under the Influence and How to "Drive" Under the Influence While Sleeping.

 Earlier this week I posted about the increasing practice of police officers in DUI investigations to write arrest reports before the arrest — in fact, before the suspect is even seen driving.  This has gotten to the point that computer templates are increasingly used: the officer simply inputs the suspect’s name, address, etc., and prints out a form DUI report with symptoms such as erratic driving, slurred speech, alcoholic breath and impaired balance already entered.

This is bad enough, as the reports are supposedly signed under oath and subject to perjury charges.  But it becomes particularly serious when you realize that very few officers can remember the details of a given case when testifying months later.  In almost all cases, the officers read their own reports before taking the stand — and then testify essentially to what they read in the report.  And in DUI cases, they are increasingly testifying based upon a fictional "xeroxed" case.

For example, California defense attorney Jon W. Woolsey got a court order requiring the California Highway Patrol to turn over any templates or forms used by the officer who arrested his client for DUI.  The following is the template that was used:

FIELD SOBRIETY TESTS

All FST’s were explained and demonstrated.  I asked Name if he/she understood each test completely and he/she stated that he did.  All tests were performed on a Location dirt/asphalt Parking lot/Shoulder that was free of debris.  The weather was cool, clear/cloudy, and daylight/dark.    

1)Horizontal Gaze Nystagamus:

Name eyes showed lack of smooth pursuit, distinct nystagmus at the extremes and an onset prior to 45 degrees.  Name’s eyes showed vertical gaze nystagmus.        

2)One leg stand:Name lifted his/her right/left foot and dropped it immediately on the count of 1000.  

3)Romberg:Name estimated 30 seconds in 0000 seconds.  Name body swayed in a circular motion 1 to 2 inches from center of mass. 

4)Finger Count:I explained the test to Name 

5)Preliminary Alcohol Screening Device:

I admonished Name regarding the Preliminary Alcohol Screening Device (PAS) and he/she agreed/refused to take the test.  I administered the PAS to Name at 0000 and 0000 hours with BAC results of .000% and .000%.

Other Factual Information:

All times are approximate and may vary from the times on the Preliminary Alcohol Screening Device, the breath test and times provided to me by dispatch.

First Observations:

On 0-00-07 I was on routine patrol in a fully marked CHP patrol vehicle, with my partner officer nnn.  I was traveling

Observations After Stop:I contacted the driver and advised him/her the reason for the stop.  As I spoke with the driver I smelled the strong odor of an alcoholic beverage emitting from his/her breath.  I noticed that the driver had red watery eyes, as well as slow and slurred speech.  I asked the driver for his/her driver’s license, which he/she provided me.  I identified the driver using his/her CaliforniaDriver’s License as John Doe 00-00-00. I asked the driver if he/she had anything to drink and he stated, “–.”  I asked the driver to exithis/her vehicle and meet me at the right front of my patrol vehicle.  I noticed that as the driver walked he had an unsteady gate.  As I spoke with the driver I noticed that he/she had an odor of an alcoholic beverage emitting from his/her breath and person.  I also noticed that the driver was unsteady on his/her feet swaying in a circular motion 1 to 2 inches from center of mass, he/she had slow slurred speech, and red and watery eyes.  I advised the driver that I smelled a strong odor of alcohol emitting from his/her breath and askedhim/her how much he/she had to drink and he/she stated, “—-.”  I explained and demonstrated several FST’s to Name, which he/shecould not complete as explained and demonstrated.  

Arrest:  Based on my observations of Name’s driving, Name’s objective signs of alcohol intoxication, and his/her performance on the FST’s, I formed the opinion that Name was driving under the influence of an alcoholic beverage and unable to safely operate a motor vehicle.  I placed Name under arrest for 23152 (a) CVC at 0000 hours.  I advised Name of implied consent and he/she chose theblood/breath test.  I booked Name into the Sonoma County Jail.

Recommendations:

I recommend a copy of this report be forwarded to the Sonoma County District Attorney’s for review, and that Name be prosecuted for violation of 23152 (a) CVC driving under the influence of an alcoholic beverage, and _____

Basically, the report tells the officer what he should have seen — not what he actually saw.   And as any honest cop will tell you, drunk driving cases rarely follow such a neat, pre-described script.  But it is convenient.  And avoids messy complications – like the actual facts.   

One size fits all.

 

In recent years, there has been a growing trend among law enforcement to use pre-written arrest reports in drunk driving cases. In other words, they are writing out a batch of phony reports — including "observed" driving symptoms, slurred speech, failed field sobriety tests, admissions of drinking — and then just filling in the names, dates, etc., when they actually make an arrest.

Saves a lot of time.

In this computer age, however, this practice is commonly abbreviated even further by using computer templates: word processing forms which have all of the "facts" already entered, with blanks to fill in for name, date, etc.  And this has been going on for some time now, as the following news story from a few years ago shows:
 

DUI Suspects May Go Free Due To Questionable Arrest Reports

Orlando, FL. November 16 — 9 Investigates has uncovered dozens of DUI suspects that may go free because sheriff’s deputies appear to be using pre-written arrest reports. There are some experts who believe this may even amount to perjury.

When a deputy makes a DUI bust, the officer writes an arrest report. It’s the official record of what the deputy says happened. But Eyewitness News has uncovered dozens of Orange County DUI arrest reports that apparently have come from pre-written templates. One report, for instance, says the suspect "stumbled slightly when walking and swayed moderately … with a three inch to five inch orbital rotation/sway." At least ten reports, written by the same deputy over a six-month period, use the exact same phrase. Even reports written by other deputies contain that exact phrase.

In many reports, the deputy noticed the "strong odor of an alcoholic beverage within my interior cab." That exact phrase appears in report after report. And it’s there whether the suspect’s blood alcohol content was anywhere from .03 to .16. 9 Investigates found 11 other reports, written by a different deputy, that use those exact words, again, no matter how much the suspect had to drink.

"It just doesn’t smell right," said DUI defense attorney Stu Hyman. "It’s a sad state of affairs when somebody hasn’t even committed the offense yet, but the report has already been written." 9 Investigates found one deputy whose suspects always do an "orbital rotation" and always "counter-clockwise." Five deputies always leave their suspects in the car for exactly five minutes before smelling alcohol. In one case, a suspect was described as "he/she."

It all leads Hyman to believe the reports were pre-written. "Why is it that everyone is swaying three to five inches? Why isn’t it two to eight? Why not one to seven inches?" questioned Hyman….

9 Investigates found court testimony where a deputy indicated the sheriff’s office has computer DUI templates. The deputy testified, "I’ve been told people use them. I just choose not to."

None of this comes as any surprise to experienced DUI attorneys, who are used to seeing what I have called in my book and lectures "xeroxed symptoms". This has been going on for a long time.  Years ago, I used to get a court order for copies of an arresting officer’s DUI reports for the previous 30 days; the symptoms often proved remarkably similar.  When the reports became an embarrassment, the Orange County (California) D.A.’s office finally appealed and stopped the judges from issuing the orders — but never prosecuted a single officer for perjury or filing a false report.