Archive for September, 2010

DUI As Murder

Wednesday, September 29th, 2010

I've mentioned in past posts the growing trend among prosecutors around the country to elevate drunk driving fatality cases from the crime of manslaughter to the crime of murder, usually resulting in life imprisonment.  See for example, DUI Murder?, How to Convict a Drunk Driver of Murder and The Death Penalty for DUI?

The most recent example concerns a DUI murder case this past week in Orange County, California, reported in an Associated Press news story entitled "Murder Charges Increasing in Fatal DUI Cases" (article offline).  In the trial, the defendant was only charged with murder, not with manslaughter.  After extensive deliberations, the jury returned a verdict of guilty.

During the trial, I granted two interviews with the reporter.  As so often happens, however, I was misquoted.  The two points I was trying to make to the reporter in objecting to a murder charge rather than one for manslaughter are important to understand:


Murder vs Manslaughter and the Concept of "Malice"

The legislature of California passed a law specifically for the situation where a death results from drunk driving:  vehicular manslaughter.  It is a "general intent" crime, that is, the driver does not have to intend to kill the victim to be guilty of manslaughter.  They also passed a law for murder:  "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought".  The statute made the killing first degree murder if it was premeditated, and added that "All other kinds of murder are of the second degree".  Thus, an intentional killing without premeditation is second degree murder….as is any killing that is done with "malice"  

So….What is "malice"?  Much like the legal definition of "obscenity", no one seems to know.  The California statutes fumble with the definition, settling on:  "…when the circumstances attending the killing show an abandoned and malignant heart".  Ok, but how do you define an "abandoned" heart"?  How do you prove or disprove a "malignant heart"?  What is a jury supposed to do?

A few years ago, a clever prosecutor in California charged a defendant in a DUI fatality case with murder rather than manslaughter.  He believed that he could get a jury to buy the idea that driving under the influence of alcohol (or driving over .08%) satisfied the vague concept of  "malice".  He was right, and the practice began to spread.  This was accelerated by the California Supreme Court's decision in People v Watson, where the Court said that a drunk driver could have the required "malice"…whatever that is.  

Since then, there have been a number of appellate decisions trying to establish what is required to prove malice in a DUI case.  The result:  it is malice if the driver knew that drunk driving could be dangerous.

Duh…Don't we all know that?  

Clearly, these are vague terms which can mean what you choose them to mean.  As the Mad Hatter 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.”

The simple fact is that there is a very clear and concise statute which was intended for drunk driving causing death: manslaughter.  There is no mention of DUI in the murder statute, nor was it ever intended for that situation.


Prosecutorial Tactics in Bypassing the Manslaughter Law

The prosecutor in last week's Orange County case used an increasingly common but clever tactic: don't charge the defendant with the usual murder and manslaughter — just with murder.  If both are charged, the jury is likely to understand that (1) the manslaughter statute is clear and fits the facts, and (2) "malice" is too vague to send a man to prison for life.

But isn't that a big gamble by the prosecutor?  If the jury doesn't buy the murder theory, the defendant goes free.

Exactly!  And the prosecutor know this: he is putting the jury in the position of either convicting the defendant of murder…or letting him walk out of court unpunished for a deadly crime.  He knows the jury does not want to let a drunk driver who killed a man get away with it, even if they may be uneasy with "malice".  And they are never told that there is a manslaughter law intended for this kind of case.  


Many years ago when I was a deputy district attorney in Los Angeles, there was a cynical saying in the office:  "Anyone can convict a guilty man; it takes real skill to convict an innocent one"….

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A Look Into Our Future

Friday, September 24th, 2010

From our neighbors to the north, a preview of things to come…


Cops Now Judge, Jury, Prosecutor

Vancouver, B.C.  Sept. 24 — B.C.’s tough new drunk-driving laws are giving police too much power and are putting a serious chill on the restaurant business, critics say.

There’s also widespread confusion over what the average person can consume, and safely drive. But supporters of the new penalties rolled out this week, which are the toughest in Canada, say one drink at dinner is one too many.

Under the new rules, testing for a blood-alcohol reading of 0.08 and failing a roadside test means an immediate 90-day driving ban, along with a 30-day vehicle impoundment. Drivers may face a criminal charge, and up to $4,060 in penalties.

And being in the warning range of 0.05 to 0.079 means an immediate three-day driving ban, a $250 fine, $200 to get your licence back and a possible three-day vehicle impoundment — all for a first offence.

David Eby, executive director of the B.C. Civil Liberties Association, says everyone wants drunk drivers off the road — but handing police the sole power to impose fines, plus take away cars and licences without giving the driver a day in court, is dangerous.

"The police officer at the side of the road has become judge, jury and prosecutor," Eby said.

SFU criminologist Neil Boyd said on the one side, too many drunkdriving charges were being "evaded" in court by well-heeled citizens in B.C. — a problem the government can solve with new powers and penalties.

But "there has to be some recourse to the courts," he said. "There’s something a little awry with giving the police a rather extraordinary administrative power."…


By drunk driving charges being "evaded in court", I assume the criminologist meant defending yourself against charges — "a problem the government can solve with new powers and penalties".  By turning the "trial" over to the cop. 
 

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79 DUI Cases Thrown Out: False Police Reports

Wednesday, September 22nd, 2010

Drunk driving is one if those crimes which is highly susceptible to falsifying evidence.  This is because the offense is highly dependent on the cop’s own observations and opinion.  Typically, proving "driving under the influence of alcohol" depends upon the officer’s testimony of such symptoms as weaving on the highway, odor of alcohol on the breath, flushed face, slurred speech, bloodshot eyes, poor balance, staggering when walking, etc.  Usually, there are no other witnesses to contradict these "observations"; certainly, no one will believe the accused.  

The only evidence that can contradict the officer is a blood or breath test.  However, this is easily avoided: the cop simply claims that the arrested citizen "refused" to submit to testing.  This results in higher criminal penalties — and avoids any evidence contradicting the officer’s damning observations and opinion of intoxication.

How common is this?  See my past posts: Supercops…and SuperconsAnother "DUI Super Cop", and More "DUI Super Cops"…and More Innocent Victims.  

The motive?  Fulfilling quotas, overtime pay for testifying in court, promotions for high numbers of arrests, gaining awards in personnel files from MADD, etc.  See 3rd Chicago "DUI Super Cop", "Inside Edition" Documents DUI Quotas Across U.S., DUI SuperCops and SuperCops: The Smoking Gun

The following recent news article is yet another example of the proliferation of false DUI arrests:  


DA Throws Out DUI Cases Due to False Reports

Sacramento, CA.  Sept. 17
— Sacramento District Attorney Jan Scully announced Friday morning that she is dismissing 79 criminal cases, mostly DUI cases in which a former Sacramento Police officer falsified reports.

The dismissal of the cases in a result of a lengthy investigation of over 200 cases of arrests made by former Sacramento Police officer Brandon Mullock. Mullock resigned from the police department on August 27th. He was initially placed on administrative leave in January after being arrested for brandishing a weapon while off-duty after getting in an argument with someone on 9th St. and J St . Mullock later plead guilty to disturbing the peace.

During the course of the investigation of Mullock, discrepencies were discovered in several DUI reports made by Mullock and police forwarded their case to the District Attorney’s office which lead to the dismissal of the 79 cases today.

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Film a Cop and Go to Prison

Friday, September 17th, 2010

I posted a couple of weeks ago about the disturbing trend toward prosecuting citizens for recording cops with such devices as cell phones — even if they are engaged in illegal conduct such as beating a helpless person.  See Taping a Cop Making an Arrest is a Felony.  The following news article contains an interesting video from the CATO Institute of police filmed by citizens. 


Police Continue to Harass Citizens Who Record Them 

Wash. DC.  Sept. 13  – A number of cases show how police continue to misunderstand citizens’ rights to record their behavior, and they’re now neatly compiled into a video from the Cato Institute.

The Examiner editorialized on the subject in June, noting that those who record police frequently are “more of a threat to the jobs of public safety officers than to public safety itself. One is not the same as the other.” State legislatures should start addressing this issue to prevent more misunderstandings and wrongful arrests.  

One has to wonder how recording from a distance interferes with the officer's duites?  Why wouldn't police and prosecutors welcome any clear evidence of the truth?  What are they trying to hide?
 

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Breathalyzers: When Alcohol Is Not Alcohol

Monday, September 13th, 2010

Breathalyzers don’t actually measure alcohol.

That’s right.  What these machines actually detect and measure is any chemical compund that contains the methyl group in its molecular structure. There are thousands of such compounds — including quite a few which can be found on the human breath. And this machine that determines a person’s guilt or innocence will “see” all of those chemicals as alcohol — and report a falsely high “blood-alcohol” concentration (BAC).

Most breath machines used by law enforcement in DUI cases today employ a technology called infrared spectroscopy. The DUI suspect breathes through a tube connected to the machine and a breath sample is captured in a small sample chamber inside the machine. Then beams of infrared light are shot through the captured breath sample. If there are any compounds containing the methyl group, they will absorb some of this light; the more of the chemical compound in the breath sample, the more light is absorbed. The more light that is absorbed, the less that reaches sensors at the other end of the sample chamber. And the less light that is detected by the sensors, the higher the supposed “blood-alcohol” reading.

Problem: the machines are, scientifically speaking, fairly unsophisticated. They are, as scientists say, non-specific — that is, they are not capable of detecting and measuring a specific compound.  More important for government work, they are relatively cheap.  Rather than use more expensive filters and/or multiple filters, for example, most breathalyzers use only one or three less-costly filters.  Result:  these machines can only detect and measure a broad range of compounds containing the methyl group — and they then simply assume that the unknown compound within this group is ethyl alcohol.

If a person has any of these other compounds on his breath, called interferents by the scientists, he will get a falsely high breath alcohol test result. And if there are two or three such compounds on his breath, the machine will read a cumulative result: it will add them up and falsely report the total as the breath-alcohol level.

So what kinds of compounds may be on a person’s breath that can cause false BAC readings in a DUI case? In one study of eight men, 69 different compounds containing the methyl group were discovered.  “Trace Composition of Human Respiratory Gas”, 30 Archives of Environmental Health290.  In another study invoviing 28 subjects, researchers found that the “combined expired air comprises at least 102 various organic compounds of endogenous and exogenous origin”.  “Characterization of Human Expired Air”, 15 Journal of Chromatographic Sciences 240.  And Canadian scientists have discovered over 200 such compounds.  “The Diagnostic Potential of Breath Analysis”, 21(1) Clinical Chemistry 5.

What are these compounds?  Are there any on my breath?  Well, for starters, diabetics with low blood sugar can have high levels of acetone — which is “seen” as alcohol by breathalyzers. And scientific studies have found that people on diets can have reduced blood-sugar levels, causing acetone hundreds of times higher than found in normal individuals. Frank and Flores, “The Likelihood of Acetone Interference in Breath Alcohol Measurements”, 3 Alcohol, Drugs and Driving 1. And there are many other so-called “interferents”. See, for example, “Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol”, 9 Journal of Analytical Toxicology 246.

If you are a smoker, your breathalyzer result is likely to be higher than expected. The compound acetaldehyde — reported by the breathalyzer as “alcohol” — is produced in the human body as a by-product in metabolizing consumed alcohol, and eventually passes into the lungs and breath. Researchers have discovered that levels of acetaldehyde in the lungs can be 30 times higher in smokers than in non-smokers. Result: higher BAC readings on the machine.

And then there are the industrial compounds: paint, glue, gasoline, thinners, and other compounds contain the methyl group. No, you don’t have to drink the stuff: simply absorbing it through your skin or inhaling the fumes can result in significant levels of the chemical in your body for hours or even days, depending upon the half-life of the compound. So if you’ve painted a room or been around gasoline in the last day or two, don’t breath into a breathalyzer.

Some law enforcement officials say that this is not a problem, claiming that levels of the compound would have to be at toxic levels to raise a breath test result to .08% or higher. These officials are displaying their ignorance of the science involved — specifically, of the partition ratio. This is the ratio of the compound found in the breath to that found in the blood. With ethyl alcohol, the ratio is 2100-to-1, which means that, on average, there will be 2100 units of alcohol in the blood for every unit found in the breath. These officials are using this ratio for all compounds, but every compound has its own ratio. Toluene (found in paint, glue, thinners, cleaning solvents. etc.), for example, has a partition ratio of only 7-to-1; a far greater amount of toluene in the blood will pass into the breath, and so a much smaller amount in the body will have a far greater impact on the breath machine.
 

 

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