Archive for April, 2011

DUI and the Double Jeopardy Game

Thursday, April 28th, 2011

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 a blood-alcohol concentration (BAC) of .08% or higher, in most states administered by its department of motor vehicles; and

(2) the criminal prosecution for the two separate offenses of (a) driving under the influence of alcohol (DUI) and (b) driving with .08%, which takes place in the courts.  Even though he only drove once, the individual is being prosecuted for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses. 

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 call "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 awhile, 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 – so long as you don’t punish him for both.

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 in some states 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 identical crime: driving with .08% BAC. 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 since the DMV license foreiture 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 Lewis Carroll wrote 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.”



More Defective Breathalyzers…

Thursday, April 21st, 2011

I’ve posted repeatedly in the past about the inaccuracies and unreliability of breath-alcohol testing machines.  See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.  

And news stories of massive breathalyzer failures keep rising to the surface. For a few recent examples, see Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines (two months ago), Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia (less than one month ago), and 400 Wrongly Convicted in Washington: Faulty Breathalyzers (last year).      

And two days ago: 

Defective Breathalyzers Could Lead to Tossing Out Hundreds of DUI Convictions

Ventura, CA. April 19 – Hundreds of drunken driving convictions in Ventura County could be tossed out because a defect in some of the handheld Breathalyzer machines purchased earlier this year is causing inaccurate blood-alcohol readings.

The Ventura County District Attorney’s Office has sent memos to local attorneys saying that eight Intoximeter Alco-Sensor V breathalyzers have shown "erratic results" in blood-alcohol tests taken between Jan. 20 and March 31, according to Kevin Drescher, the supervising attorney with the felony unit.

The county purchased 128 of the devices, paying about $4,800 for each one.

Drescher said he didn’t know how many people charged with DUI were tested with the Alco-Sensor V during that time…

The District Attorney’s Office sent the memo to the Public Defender’s Office on April 15, said Chief Deputy Public Defender Monica Cummins. She said about 160 clients who were either convicted of drunken driving during this time, or have DUI cases pending, will be contacted by the office…

Cummins said the Public Defender’s Office will move to have the convictions dismissed in cases where there may have been blood-alcohol errors. But some people who were found guilty or pleaded guilty as a result of these false readings have already served jail time, paid thousands of dollars in fines and have done community service as part of the conviction, Cummins noted.

Also, harsher penalties are meted out to motorists who blow a .15 percent blood-alcohol level, said Cummins. In California, a blood-alcohol reading of .08 is considered the benchmark for being legally intoxicated.

"Truthfully, there is a whole cornucopia of problems that will likely arise," she said.The Alco Sensor V is manufactured by Intoximeters, Inc. of St. Louis, Mo.

According to the company’s website, "The ASV provides a simple, economical method of determining a subject’s breath alcohol concentration with evidential grade accuracy."

Company officials didn’t return calls.

Remember: these are just cases where the problems have been detected — and discovered by the media.  Do you really think that the thousands of other breathalyzers across the country are reliable?

It is a crime to drive a vehicle with a blood-alcohol level of .08% or higher — as measured by one of these fallible machines.  And how do you cross-examine a machine?  Yet in today’s "trial by machine", the reading alone is sufficient to find an accused guilty — beyond a reasonable doubt.  

Law once again trumps science…

(Thanks to Lane Scherer, an attorney in my law firm.)


Which Age Group Has the Highest DUI Fatality Rate? Which is Rising Fastest?

Wednesday, April 20th, 2011

So over the past 10 years, who are the most dangerous drivers on the road?  In other words, drivers in which age group are most likely to drink too much and end up killing someone on the highway?  And how if at all are the fatality rates changing? 

Drunk Driving Killing Male Baby Boomers: Report

Detroit, MI.  April 13
– The rate of driving-related deaths for male baby boomers is rising, in sharp contrast to a decline in driver-related deaths for every other male and female age group, recent federal data shows.

The increase coincides with an increase in drunk driving fatalities among baby boomers, both men and women.

An analysis of driver fatality data from the National Highway Traffic Safety Administration found that the number of annual traffic fatalities for men between the ages of 51 to 65 rose by nearly 25% between 2000 and 2009.

During the same period, annual fatality figures for all male drivers regardless of age declined by more than 20%. Fatality figures for all females also declined 20% during the same ten-year period.

Meanwhile, drunk driving fatalities among men and women ages 51 to 65 increased by 37% between 2000 and 2009, while overall drunk driving fatalities among all drivers fell by nearly 7%, said.

"We spend a lot of worthwhile energy teaching younger generations about the virtues of staying safe on the road — especially when it comes to the dangers of drinking and driving," said CEO Jeremy Anwyl, in a prepared statement. "But the baby boomer generation is not heeding the same advice they’re giving to their children."

The data analyzed by Edmunds also shows that men are twice as likely to be intoxicated when getting into a fatal accident as women, and that drivers between the ages of 26-35 are more likely to be intoxicated when getting into fatal accidents than any other age group.


Criticisms of “Sobriety Checkpoints” Growing

Wednesday, April 13th, 2011

I mentioned in a post a couple of days ago that there appeared to be the beginnings of a backlash against DUI roadblocks (aka "sobriety checkpoints").  See Law Proposed to Ban DUI Roadblocks, objecting to them as trappings of a "police state".  Interestingly, the following article appearing a few days earlier also challenged roadblocks — but on the grounds of inefficiency: 

Some Valid Questions About Lodi’s DUI Checkpoints

Lodi, CA.  Apr. 2 – Are DUI checkpoints worth the time and money? Our recent front page story asked that question, and it is a fair one.

Lodi police have been running the checkpoints through a grant from the state Office of Traffic Safety. Lodi gets $102,000 to operate the checkpoints and so-called saturation patrols.

The goal is worthy: Get drunken drivers off the streets of Lodi.

The reality, though, has raised several issues, including:

The checkpoints are expensive, drawing 14 officers, all on overtime, for an estimated cost of $4,400 per checkpoint.

The results are rather unimpressive. The checkpoints have produced an average of 2.8 DUI arrests each — about $1,500 per arrest. (That may be in part because many local bar owners learn quickly of the checkpoints and alert their customers.)

In contrast, the checkpoints have caused many cars to be towed and impounded because their drivers are unlicensed. The average has been 20 cars per checkpoint. Most of these drivers aren’t inebriated, just unlucky. They have to cough up big bucks — one local car owner paid $1,600 — to get their vehicle back. And they have to wait 30 days for that privilege. No doubt some have lost not just a car, but a job. A young car owner told reporter Fernando Gallo that she and her boyfriend had to walk home because the police denied her use of a cell phone to call for a ride after her Honda was towed away. That doesn’t strike us as the most courteous reaction.

So-called saturation patrols are more efficient at catching DUI drivers than checkpoints, but Lodi police have to run the checkpoints as part of the deal with the state safety office.

Is this a well-intended program that’s too expensive and intrusive? Are taxpayers getting their money’s worth with this? Are the checkpoints a sledgehammer slaying flies?

We’ve learned since our story appeared that Lodi police do not, in fact, have to request driver’s licenses of those who go through the checkpoints. Maybe changing that policy is worth exploring. After all, the aim is to arrest intoxicated motorists, not deprive Lodians of their cars, right? The impoundments seem like a sort of collateral damage.

Beyond that, perhaps the traffic safety office should look at shifting resources toward the saturation patrols that Lodi police say are more effective.

Maybe folks are beginning to notice that the Emperor is wearing no clothes…


Law Proposed to Ban DUI Sobriety Checkpoints

Monday, April 11th, 2011

As I’ve argued repeatedly in the past, drunk driving roadblocks (MADD and the police prefer the less ominous phrase "sobriety checkpoints") are overly intrusive and ineffective compared to police patrols.  See, for example, Do DUI Roadblocks Work? and Do DUI Roadblocks Work? (Part II).  And — despite a controversial 5-4 Supreme Court decision — they are unconstitutional. See Are Roadblocks Constitutional?  

Their only real benefit is raising large amounts of cash for local municipalities from all the tickets and towed cars from unrelated license, registration and equipment violations (for which roadblocks would be illegal).  See, for example, DUI Roadblocks for Fun and Profit and The New "Highway Robbery": Money-Making DUI Roadblocks Growing.

Recently, however, there appears to be the beginnings of a backlash from a few legislators unafraid of MADD’s political influence.

R.I. Lawmaker: Outlaw DUI Checkpoints, Providence, RI.  Apr  9 – A Rhode Island state lawmaker says drunk-driving checkpoints are unfair and should be banned.

Rep. Charlene Lima, a Cranston Democrat, has introduced a bill in the General Assembly to prohibit police from conducting traffic checkpoints to identify drunk drivers. A legislative panel reviewed the legislation Wednesday.

Lima says she supports laws against drunk driving, but that checkpoints "smack of a police state." She said there’s no reason sober drivers should have to prove to police that they’re not driving drunk.

A voice in the wilderness….