Archive for November, 2010

Another Vigilant “DUI SuperCop”

Monday, November 22nd, 2010

I’ve posted repeatedly in the past about so-called "DUI Super Cops".  These are officers who rack up record numbers of drunk driving arrests — and are rewarded with MADD awards, departmental awards, promotions and astronomical overtime pay for court testimony. See, for example, Super Cops…and Super Cons, How To Be a DUI Super CopAnother DUI Super Cop and The Latest DUI Super Cop.

 

Cop Arrests Biker With Cerebral Palsy for DUI

Salt Lake City, UT.  Nov. 9
– A Utah man who suffers from cerebral palsy, epilepsy and other disabilities was stopped while riding a motorized bicycle and charged with DUI after admitting he takes medication. 

As CBS Affiliate KUTV correspondent Chris Jones reports, Mike Tilt was pulled over by Utah Highway Patrol Trooper Lisa Steed on October 28 and asked to take a field sobriety test. 

Tilt, whose left leg is shorter than his right, told the officer that he would likely fail the test (which requires him to put one foot in front of the other), and he did. Tilt told Steed he did not have a driver’s license – he’d given it up 15 years before due to his seizures. 

After asking Tilt if he took medication for his epilepsy, she handcuffed him. 

According to Tilt, when he asked if he were being arrested, Steed replied, "Yeah, for DUI." 

Ironically, Tilt had forgotten to take his medication that night.

In defending the trooper’s actions, Utah Highway Patrol told KUTV that many people drive under the influence of prescription medications. 

They also praised Steed, who was named Trooper of the Year in 2007 for her arrests of drivers suspected of being under the influence. Over the past eight she has made nearly 800 DUI arrests, roughly half that in 2009 alone…

Tilt’s daughter, Courtney Tilt, told Jones, "If she’s proud of taking in an epileptic patient for a DUI, I don’t know what to think of her and her character." 

But further investigation by KUTV found cases where Steed was chastised by judges for allegedly disregarding UHP procedures, in one instance calling her actions "especially troubling." Another judge said she "lacks credibility." 

In some instances (though not in Tilt’s case) Steed conducted field sobriety tests out of view of her police car’s dashboard camera, counter to UHP policy. 

Defense attorney Glen Neeley, who has represented several people stopped by Steed, said to Jones that Steed’s goal is to pull over as many people as possible with the goal of making DUI arrests. 

After KUTV began looking into Steed’s record, UHP contacted the station, telling them they’d started their own inquiry of the trooper’s actions. 

"Was it consistent with what we’re trying to do with our overall perspective of DUI enforcement and review of it? No, it wasn’t," Capt. Mike Rapich told the station of the Tilt case. "This individual is not to be prosecuted for DUI." 

So Tilt is off the hook – but so is Steed. UHP stands behind Steed’s other DUI arrests, saying they "conform to prescribed procedure and the law." 

 

Whatever happened to ethics, fairness and plain common sense in drunk driving cases? 

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New Police Tactic

Thursday, November 18th, 2010

In today's news, the latest insanity from the front lines….


Huntington Beach Might Post DUI Arrests on Facebook

Huntington Beach, CA.  Nov. 18
– Huntington Beach is considering a new tactic in its crusade against drunk driving: public shaming on Facebook.

The city's Police Department is looking into posting the names of suspected drunk drivers on Facebook, said Lt. Russell Reinhart…

Reinhart said the Police Department began looking for a new way to publicize drunk-driving arrests after the Huntington Beach Independent, a community newspaper published by The Times, stopped running listings of the arrests.

 

Note:  the police are destroying people's reputations — based upon an arrest, not a conviction.  There is nothing in the plans for retractions when those arrested are acquitted or have their cases dismissed.  

Note #2: Huntington Beach is not some quirky little town, but a metropolitan city of over 200,000 in Orange County, California – about 10 miles from my law offices.
 

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MADD Lobbying for Breathalyzers as Standard Equipment in All Future Cars

Monday, November 15th, 2010

In the wake of their recent success in requiring mandatory ignition interlock devices (IIDs) in the cars of drivers who have been convicted of drunk driving, Mothers Against Drunk Driving has been planning the next push: requiring IIDs in all cars. In other words, no car could be sold in the U.S. without devices which would require you to pass a breath test every time you wanted to start the vehicle.  See All U.S. Cars To Have Ignition Interlock Devices?

I've posted in the past about how such devices are, at best, inaccurate and problematic. See, for example, Will Ignition Interlock Devices End Drunk Driving?  These are not the expensive, constantly-calibrated high-tech machines used in police stations, but rather assembly-line equipment made by car manufacturers, subject to endless sources of false readings and failures — which can, ironically, cause accidents.  See Ignition Interlock Devices: Dangerous But Profitable.

And I've documented that 3 of MADD's 6 biggest corporate contributors are auto manufacturers who stand to make big profits from mandatory IIDs (another of the 6 major contributors is MADD's telemarketing company).  See The Truth About Ignition Interlock Devices..

MADD is now finally making their push for federal legislation.  And based upon past successes with legislators unwilling to oppose MADD, the their chances are good.  In today's news:


MADD Lobbying for Device to Keep Cars From Starting in Driver is Intoxicated

Dallas, TX.  Nov. 15
— …Now in its 30th year, MADD has a new plan and wants to end drunken driving for good. The nonprofit is pushing for the development of alcohol-sensing technology that prevents cars from starting if the driver is intoxicated.

Some say the group is going too far. The $60 million proposed federal legislation to develop the technology has led to the latest round of charges that the group is "neo-prohibitionist."…

And the American Beverage Institute, a restaurant industry group, criticized MADD's fund-raising techniques this year. MADD relies heavily on expensive telemarketing, which led to poor marks from two charity watchdog groups…

MADD is lobbying Congress to pass an amendment to the Motor Vehicle Safety Act to provide the $60 million needed over five years for the sensor technology. Cars would not start if the driver has a blood alcohol level above the legal limit, at .08 or higher…

MADD's top critic, the American Beverage Institute in Washington, D.C., says the group is now going after social drinkers.

"They are no longer a mainstream organization," said Sarah Longwell, the institute's managing director. "Many of their policies are extremely fringe at this point."

The institute fears the alcohol sensing technology will be used against people just having a drink or two.

"When they talk about alcohol sensing technologies, ultimately what it does, it eliminates people's ability to drink anything before driving," Longwell said. "It's not about drunk driving anymore, it's about trying to demonize any drinking prior to driving."…

 
Would you trust Detroit to mass-manufacture sophisticated breathalyzer technology for your dashboard?
 

 

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Should We Punish Drivers Who Pull Over To Sleep It Off?

Wednesday, November 10th, 2010

I continue to receive queries concerning a news article I commented on a long ago, "Parking Under the Influence". And the answer is….Yes, you can be arrested in many states for "sleeping under the influence" in your parked car — on the shaky theory that you were probably driving some time earlier and were probably intoxicated at the time.

What was unusual about that Alabama story was that those asleep in their cars had admittedly never driven — but were arrested because they might.The response of MADD and government has been that this helps prevent DUI-related fatalities. As the Alabama sheriff said, "What if they woke up at 2:00am…and decided to drive?" What is frightening, of course, are the obvious ramifications: Where do we stop once we decide to punish folks for what they might do?

In any event, despite the rhetoric about preventing traffic fatalities, the real concern seems increasingly focused on punishment rather than prevention:

Question: If an individual begins driving home from a restaurant and realizes he has had too much to drink, what do we want him to do — if we are truly interested in preventing an accident?

Answer: We would like to see that person pull over and sleep it off.

Question: How do we encourage that conduct?

Answer: We don’t punish him for doing it.

Question: Then why do police continue to arrest and the courts to convict these folks for drunk driving?

There are two issues involved. First, the legal issue: Although under the influence, was the individual driving? The various states have slightly different definitions of what constitutes "driving", but they usually involve "operating" or being "in physical control" of a motor vehicle. Second, the public policy issue: Shouldn’t we encourage conduct that seeks to avoid danger to the public and/or commission of a crime?

Looking at the legal issue first, how can a person be "operating" or "in physical control" of a vehicle if he is asleep? Well, in their stampede to "get tough" on drunk drivers, many states have stretched their definitions of "driving" to the breaking point — and beyond. In State v. Lawrence, 849 S.W.2d 761, for example, the Tennessee Supreme Court held that a defendant who was asleep on the driver’s side of his parked vehicle with the keys in his pants pocket was in "physical control" within the meaning of the DUI statute — and thus guilty of drunk driving. Similarly, in State v. Peterson, 769 P.2d 1221, the Montana Supreme Court held that the defendant was in "actual physical control" of the vehicle when he was found parked off the roadway, asleep in the driver’s seat with the keys in his pocket. There are, fortunately, other courts which have held that this does not constitute driving. See, for example, State v. Bugger, 483 P.2d 404 (Utah).

Most courts do not address the second issue: legalities aside, as a public policy matter should such conduct be punished? This is possibly because judges may feel that is a matter for the legislature to address. But consider the holding of an Arizona court in reversing a DUI conviction:

The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway. Arizona v. Zavala, 666 P.2d 456.

Makes sense. Of course, angering MADD is not a good way to get reelected to the bench.
 

 

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Is the Tide Turning?

Saturday, November 6th, 2010

 I’ve railed long and hard in the past about MADD’s neo-prohibitionist goals and its costs to our Constitution.  And it is no coincidence that the organizations’s founder, Candi Lightner, resigned years ago in disgust, saying that MADD had strayed from its original goal of saving lives and become prohibitionist.

Perhaps the public is beginning to awaken to the damage being done by this organization.  In the staff editorial of today’s Toronto Sun:


Have They Gone Madd?

Toronto, Canada.  Nov. 6 –  What was once a maternal grassroots movement to warn of the perils and tragedies associated with drinking and driving, Mothers Against Drunk Driving has sadly devolved into the WCTU.

It must be losing its grip.

The stridently puritanical Woman’s Christian Temperance Union, which brought its tea pot to Canada in 1874, believed even a sniff of demon alcohol caused unemployment, disease, prostitution, poverty and immorality.

And it wanted this "evil" not just restricted but abolished.

Is this MADD’s next mission?

The anti-drunk-driving crusaders, not satisfied with the successful RIDE campaigns they helped launch, are now demanding legislation that would allow police to stop anyone on the pretext of conducting random roadside breath tests (RBT) — anywhere and anytime.

That’s right, without cause, as in a police state — claiming their Ipsos Reid polling has 77% of Canadians support RBTs.

We find this impossible to believe.

The CEO of MADD Canada is Andrew Murie, the same exec who defended a Toronto-area police force last year that, to us, was sending a mixed pre-Christmas message by handing public-intoxication tickets to bar goers waiting on the sidewalk for their prearranged designated driver service.

Instead of congratulating the bar goers for not drinking and driving, and being responsible, however, Murie congratulated the police for busting them, and then laid blame on the bars for over-serving.

Mothers Against Drunk Driving is supposed to be against drunk driving, not the act of having a drink or even having one too many drinks.

But it now appears to be against drinking altogether — and this could put its charitable Project Red Ribbon campaign in peril.

The public can only take so much lecturing, hectoring and infringement of its civil liberties.

And we, for one, have had our fill.

MADD had best go back to its maternal grassroots before the public cashes them out as over-bearing, self-important zealots.

We loathe drinking and driving, and we say this without reservation. We are in the news biz, after all, and we daily see far too many tragedies across this country not to agree with MADD’s original cause.

But, unlike MADD, we have not gone temperance.

Nor do we advocate police statism.
  

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