Archive for February, 2011

“Do As I Say, Not As I Do”

Saturday, February 26th, 2011

The hypocrisy continues…..


Former President of MADD Arrested on DUI Charge

Gainesville, FL.  Feb. 24 – A former president of the defunct local chapter of Mothers Against Drunk Driving was arrested recently by the Gainesville Police Department on a DUI charge.

Debra Oberlin, 48, was arrested after she had difficulty on a field sobriety test. She registered a .234 and .239 on breath alcohol tests. Florida’s legal limit for driving is .08.

Oberlin, a Realtor, had no comment when contacted Thursday by The Sun.

On Feb. 18 at 1:10 a.m., an officer spotted Oberlin driving erratically on Northwest 19th Street, swerving and crossing lanes, an arrest report states. Oberlin was pulled over in the 3600 block of Northwest 39th Avenue.

The officer wrote that Oberlin smelled of alcohol and had watery, bloodshot and dilated eyes. The report states that Oberlin told the officer she had four beers.

Gainesville’s MADD chapter existed for several years in the 1990s before closing in 1996 because of lack of financial support. Oberlin was the chapter president for three years.


Thanks to Matthew Kensky of Fairfax, Virginia.
 

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Cops Increasingly Use DUI Arrest Reports…Written Before the Arrest

Wednesday, February 23rd, 2011

I’ve commented in past posts that it is becoming an increasingly common practice for police officers to simply use form or template arrest reports in drunk driving cases — what I have referred to in my books as "xeroxed" reports.  See Police Using Pre-Written DUI Reports.  In other words, rather than going to all the "trouble" of writing a report of the actual investigation and arrest, cops are using pre-written reports — and then changing a few details to fit the defendant.

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 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 at0000 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/herdriver’s license, which he/she provided me.  I identified the driver using his/her California Driver’s License as John Doe 00-00-00. I asked the driver if he/shehad anything to drink and he stated, “.”  I asked the driver to exit his/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 asked him/her how much he/shehad to drink and he/she stated, “—-.”  I explained and demonstrated several FST’s to Name, which he/she could 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 the blood/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.
 

 

 

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The Next Step in “The War on Drunk Driving”?

Tuesday, February 15th, 2011

I suppose it was inevitable….


Passengers Get Prison Terms in Fatal Drunk Driving Accident

Saitama, Japan.  Feb. 15 — Two men were sentenced to two years in prison Monday for abetting a fatal traffic accident caused by another man who had given the pair

a ride in his car after drinking alcohol in Kumagaya, Saitama Prefecture, in 2008.

The Saitama District Court ruled that the two men's consent to the third man's offer to give them a lift had encouraged him to drive, despite their obligation to stop him

from getting behind the wheel while under the influence…

In the ruling, presiding Judge Makoto Tamura said the two men's acceptance of the driver's offer after drinking together had helped him to decide to drive.

Prosecutors had demanded eight years' imprisonment for both. Oshima and Sekiguchi had pleaded innocent during their trial.

The focus of the trial was whether the pair were aware that the driver had been intoxicated at the time, and whether they had turned a blind eye to his drunken driving…


Guess what Mothers Against Drunk Driving's next brilliant idea will be to end drunk driving driving?
 

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Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines

Wednesday, February 9th, 2011

If you are accused of DUI or DWI, a reading results in a legal presumption of guilt; if charged with driving with a blood-alcohol content of .08% or higher, the machine is the only evidence of blood-alcohol.  In essence, either way you will be facing a "trial by machine".

So how good are these machines?  Good enough to constitute "proof beyond a reasonable doubt"?  Or are they just "close enough for government work"?

As regular readers know, one of my pet peeves is the unreliability and inaccuracy of breathalyzers (or, more accurately, any of the various breath testing models sold by a handful of manufacturers).  See, for example, Breath Alcohol Testing: "State of the Art?, Why Breathalyzers Don't Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable
 

D.C. Attorney General Drops Drunk Driving Cases

Wash. DC.  Feb. 8 — The District's attorney general has dropped dozens of drunken driving cases since Jan. 31 and hundreds of others could be dropped as the police department shuts down its troubled alcohol breath-test program. Problems dating back more than three years with the city's breath analyzers were first revealed in February 2010, when it was discovered the machines' results were inaccurate. Since then, the D.C. medical examiner's office has refused to sign off on the accuracy tests of new analysis machines, officials said.

"The alcohol breath-analysis program? It doesn't exist anymore," said Ilmar Paegle, who discovered problems with the Intoxilyzer 5000s soon after he took over the city's breath-analysis program on Feb. 1, 2010. Paegle's contract ended last week. As he left, he said, the police department pulled off the street the Intoximeter, which replaced the Intoxilyzer last spring. "It's a royal mess," Paegle said.

A spokeswoman for D.C. Attorney General Irvin Nathan said he couldn't be pulled from a meeting to comment Tuesday. Nathan dropped eight more drunken driving cases Tuesday.

City policy requires the medical examiner's office to certify the program, and it has not done so, citing concerns raised by the problems with the previous models, Paegle said. Although officers had been using the Intoximeters, the results were not being included as evidence, according to Paegle and internal police e-mails obtained by The Washington Examiner.

The medical examiner's office declined to comment, citing pending litigation. Dozens of defendants have sued the city after being convicted on potentially faulty breath-test results.

Assistant police Chief Patrick Burke said officers are now taking urine samples to test blood alcohol levels for potential future prosecutions.

Meanwhile, the two police officers who account for a third of the city's 1,400 annual drunken driving arrests have had their trial testimony called into question. They are the subjects of an internal affairs investigation that began after they spoke out about problems with the breath analyzers.

Officers Jose Rodriguez and Andrew Zabavsky learned that the medical examiner hadn't signed off on the program and began mentioning that in their trial testimony last spring, according to an e-mail from Zabavsky to police Chief Cathy Lanier. Later in the spring, the attorney general's office began an investigation into the officers, saying a woman they arrested for driving under the influence in June 2009 had complained the two watched her take a urine test.

In December, the case was turned over to internal affairs.

"On a day-by-day basis, cases are being dismissed because the officers involved are being investigated," said defense lawyer Bryan Brown.

The result, police union chief Kris Baumann said, is "our ability to enforce DUI laws in the District has been crippled".


The breathalyzers involved are the most commonly used across the country.  Do you really think only those in Washington D.C. are giving false results? 

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The Metamorphosis of a Crime

Sunday, February 6th, 2011

Drunk driving is bad.  It’s potentially dangerous to human life.  It should be punished.  So, many years ago a law was passed: 

"Thou shalt not drive drunk."

It was a fair law and it addressed the problem.  So…what happened?  Why do today’s laws punish drivers when they are neither "drunk" nor "driving" — nor even in a "vehicle"? 


"Drunk"

The original laws prohibited driving a vehicle "under the influence of alcohol" — commonly referred to as "DUI".  In some states, it’s called "DWI" (driving while intoxicated) or "OUI" (operating under the influence).  In other words, the accused had to be (1) driving (2) a vehicle (3) while intoxicated to the extent that he or she was unable to safely operate it.

This changed a few years ago with the passage of so-called per se laws.  Prosecutors and groups like MADD were frustrated with the difficulties in proving that a driver was, in fact, under the influence.  So legislators, anxious for re-election endorsements from prosecutors, police and MADD, passed a new law:

"Thou shalt not drive with a blood alcohol level of .10% or more."

Well, this made it much, much easier to convict citizens suspected of drunk driving.  First, prosecutors no longer had to prove that a driver was impaired in his judgment, reflexes, perception and coordination.  All they had to do was produce a number: .10%.  Never mind that the American Medical Association conducted studies and announced in 1938 that a driver was only "impaired" at .15%.  Never mind that MADD was later successful in getting the number reduced further down to .08% (and is lobbying for further reduction to .05%).  And never mind that every person’s tolerance to alcohol varies widely — that some drivers may be under the influence at .07%, while others may not be intoxicated at .11%.  The law was no longer interested in whether the driver was a danger or not: the crime was in having alcohol in your body.

The second reason the new per se laws were wildly popular with prosecutors, police and MADD was that the arrested citizen could now be charged with both crimes — DUIand .08%.  This had two big advantages.  First, it gave the prosecutor two shots at the defendant; if he didn’t get him for one, he might get him for the other.  Second, it gave juries that were unsure of the defendant’s guilt an option: convict him of one charge but acquit him of the other.  Juries that were not unanimous could use this as a compromise — even if some jurors felt the accused was not really proven guilty.

Just to make it even easier, many courts have followed the California Supreme Court in ruling that the breath alcohol reading cannot be questioned on the grounds that it does not accurately reflect the alcohol actually in the person’s blood.  See Bransford v. California.  (One dissenting justice in that case, less concerned with politics than with common sense, wrote: "The majority…has on its own created the new crime of driving with alcohol in one’s breath.")


"Driving" 

The second half of drunk driving is…"driving".  This would seem obvious: how can you be driving under the influence if you’re not…well, driving?

No problem.  If you have judges who do not want opposition from prosecutors, police and MADD at the next election, you will have strange judicial interpretations of what "driving" means.  And in recent years there has been a flood of judicial interpretations which have stretched the word beyond recognition.  A couple of examples:

Sleeping in (or near) the car.  See my posts Sleeping Under the InfluenceHow to "Drive" Under the Influence While SleepingConvicted of Drunk Driving Without Driving and When Does the Insanity End?

Sitting in a parked car.  See Parking Under the Influence and Sitting in a Parked Car  


"Vehicle"

Just as the judges stretched the meaning of "driving" beyond the limits of credulity, so they also expanded the definition of what constituted a "vehicle".  Now, a "vehicle" is commonly understood to mean a car or truck, and so it has been applied for decades.  But this, too, has been slowly expanded to include such "vehicles" as:

Bicycles.  See my posts DUI on BicyclesFelony DUI Bicycle and DUI While Walking a Bicycle

Lawnmowers.  See More News From the Front and The "War on Drunk Driving" Marches On

Horses. See DUI on a Horse

Wheelchairs.  See DUI in a Wheelchair

Toy bikes.  See DUI on a Foot-High Toy Bike 

Golf carts.  See The War on Drunk Driving Continues

Zamboni ice machines.  See News From the Front


As Humpty Dumpty explained to Alice so many years ago:


"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.”


We used to have laws punishing drunk drivers. They were good laws, designed to protect citizens.  Whatever happened to them?
  

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