Archive for September, 2011

Police Department Explains “Real Purpose” of DUI Roadblocks

Thursday, September 29th, 2011

Readers are aware that one of my biggest peeves about the so-called "War on Drunk Driving" is DUI roadblocks (aka "sobriety checkpoints") — both because of their ineffectiveness and their inherent unconstitutionality.  See, for example, Do DUI Roadblocks Work?Do DUI Roadblocks Work? (Part II) and Are DUI Roadblocks Constitutional?  

Since it has become increasingly difficult for law enforcement agencies to ignore the overwhelming evidence that DUI roadblocks are ineffective at apprehending drunk drivers, many have cleverly reversed their justifications for them and adopted a Kafkaesque defense:  roadblocks are effective because they are ineffective.  The reasoning here is, "We aren’t arresting any drunk drivers at the roadblocks because they are so effective at keeping them off the road".  See my post DUI Logic: Roadblocks Effective – Because They’re Ineffective.  (Reminds me of the old joke:  "Why are you wearing a pink hat?"…"To keep the elephants away"…"But we don’t have elephants here"…"See?")

In a variation on this twisted theme, last week the Beverly Hills police department offered his own feeble defense of roadblocks to the city council:
 

DUI Checkpoints Discussed at Council Meeting 

Beverly Hills, CA.  Sept. 23 — Beverly Hills Police Department Lt. Mark Rosen gave a presentation on sobriety checkpoints at Tuesday’s City Council meeting.

"The main objective of the checkpoint is not to arrest drunk drivers," Rosen said. "The real objective … is to bring DUI driving to the forefront of people’s thought process."


Hmmmm…..So what is the real reason why local police agencies are so insistent on continuing to use admittedly ineffective roadblocks?  

The usual answer: money.  Simply put, DUI "sobriety checkpoints" are a cash cow — a subterfuge for stopping vehicles to find minor violations such as equipment violations, expired car registrations and drivers licenses not in possession.  See my posts, DUI Roadblock: 1131 Stops, 114 Tickets, 0 DUI ArrestsAnother "Successful" DUI Roadblock: 3000 Drivers Stopped, 0 DUIsDUI Roadblocks for Fun and Profit and The True Purpose of DUI Roadblocks.  

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A Different View of a DUI Lawyer

Friday, September 23rd, 2011

Because of my views over the years on DUI laws and law enforcement, I’ve grown used to being the target of media, government and social attacks ("How can you defend those drunk drivers!").  So it was a pleasant surprise to read in my hometown newspaper a more flattering account of my views and activities…  


Making a DUI Defendant’s Case

Long Beach, CA.  Sept. 20 — What Lawrence Taylor does for a living doesn’t exactly put him on the side of political correctness.

In fact, he’s at the opposite end of the spectrum from Mothers Against Drunk Drivers.

He defends people accused of drunk driving, a lot of them, thousands of them since he began doing so on a full-time basis in 1979.

He acknowledges he’s about as popular with MADD as, say, a liquor salesman is who shows up at an AA meeting preaching the virtues of drinking.

"Those accused as drunk drivers these days are stigmatized almost in the same league as child molesters," says the Long Beach resident.

During his 42 years in the law profession in which he represented the notorious Onion Field killer (Gregory Powell) before the California Supreme Court and was the legal adviser to the judge of the Charles Manson trial (Charles Older), Taylor has been a deputy county counsel, a deputy public defender, a deputy district attorney, an independent special prosecutor and a criminal lawyer.

He has been a professor at the Gonzaga University School of Law, a visiting professor at Pepperdine University and a Fulbright Professor of Law at Osaka University in Japan.

He has been a Marine, a boxer, a triathlete, a football player at San Pedro High and a water polo player at the University of California.

Prolific writer

He has written 14 books, several of them critically acclaimed, including the historical, "A Trial Of Generals (Homma, Yamashita, MacArthur)," the true crime tale "To Honor And Obey," and the legal textbook "Drunk Driving Defense."

It is the latter subject that has been Taylor’s legal focus for more than three decades and that has resulted in his becoming perhaps the most famous, if not most respected, DUI attorney in the country.

He not only has written two books on the subject – the other is called "California Drunk Driving Defense" – but also has lectured on DUI trial techniques and constitutional issues at more than 200 seminars in 38 states and is one of the 13 founders of the National College DUI Defense, which accorded him a Lifetime Achievement Award at a Harvard Law School ceremony in the summer of 2002.

He has been interviewed countless times on NPR, Court TV and other TV outlets, and has been featured in the Wall Street Journal, USA Today, People, Playboy, the American Bar Association Journal, the Christian Science Monitor and other publications.

He maintains offices in Long Beach, Irvine, Riverside, Pasadena and Brentwood, and his Internet narrative – duiblog.com – has become imperative reading for legal scholars interested in the subject. The blog is the one most visited in the DUI arena on the web.

He has strong opinions on a lot of areas in his field of expertise, but none are more passionate than his withering critique of DUI checkpoints, which have become a familiar weekend evening sight on Pacific Coast Highway in Seal Beach and also are occasionally seen in Long Beach.

"To me, the checkpoints are in clear violation of the U.S. Constitution’s Fourth Amendment, which forbids unlawful searches and seizures," says Taylor. "I know they are permissible under the Supreme Court’s 1990 ruling in the Michigan Department of State Police v. Sitz, a 5-4 ruling that eroded liberty to facilitate a compelling interest in reducing fatalities. Checkpoints would be easier to accept if they actually improved public safety, but most public safety experts acknowledge that traditional policing, in which officers look for drunken drivers while patrolling, is more productive.

"Drunk drivers kill. Those who drink, even a little, have no business getting behind the wheel of a motorized vehicle for the rest of the day. Society needs to eradicate drunk driving, but checkpoints aren’t the answer."

In one of Taylor’s recent blogs, he wrote, in part: "Colorado Springs police detained 1,420 drivers last Saturday in yet another ineffective effort to catch drunken drivers. As a result of detaining thousands and countless passengers, police cited eight – a whopping .56 percent – on suspicion they had driven under the influence.

"Meanwhile, cops working the checkpoints were not on the roads providing legitimate public safety."

The OT factor

He went on to cite a University of California investigation that revealed checkpoints generated more than $30million in annual overtime income for police officers in California.

"Checkpoints, which are funded with transportation grants, are public relations stunts," wrote Taylor. "Our police are supposed to protect and serve the public, not detain individuals to generate publicity and overtime pay. The fact is that most roadblocks are increasingly a means of illegally using DUI roadblocks to stop vehicles to find minor violations such as equipment violations, expired car registrations and drivers licenses not in possession. As long as local governments continue to rake in desperately needed revenues from these fraudulent police practices, roadblocks will continue."

Naturally, Taylor has a similarly strong aversion to the Breathalyzer and similar tests that police employ on suspects believed to be under the influence of alcohol.

"I’ve seen people blow more than a .08 (the legal limit), and have no alcohol in their system," he says. `The human body is infinitely variable, and the machine assumes that all human bodies have identical characteristics, which they don’t. And then there was another case I once had in which (a) guy accused of drunk driving took a blood test to prove that he hadn’t even had a drink. Well, the blood test came back, and showed a .15 reading. We sent the blood out to be DNA tested by an independent laboratory, and it turned out that it wasn’t even my client’s blood. The police lab had mixed up the tests. We got him off."

A 1959 graduate of San Pedro High, Taylor attended UC Berkeley for a year before deciding to do a hitch in the Marines.

"My time in the Marines was the best thing to happen to me," he says. "All I was doing that first year at Cal was play sports, drink and chase girls."

He later returned to Berkeley, decided to become a lawyer instead of a veterinarian, and wound up graduating from the UCLA Law School in 1969.

"One of my jobs when I was a deputy county counsel was giving legal advice to Judge Charles Older during the Manson trial," says Taylor. "It was on a variety of points, including the gag order he implemented.

"And, after I went into private practice, I was appointed by the State Court of Appeals to represent Gregory Powell, who was convicted of murder and given a death sentence in the `Onion Field’ killing of a Los Angeles cop in a case that was detailed in a best-selling book written by Joseph Wambaugh. Powell’s death sentence got overturned, but not his murder conviction.

"I also later was selected with two other attorneys to serve as an independent special prosecutor in a grand jury investigation of political corruption in Montana that was focused on the governor. I lived in the state’s capital, Helena, for a year."

In 1979, Taylor turned permanently to defending those accused of DUIs.

"To be honest, I just got tired of defending murderers, rapists, thieves and the like," he says. "And I also was concerned about the constitutional and evidentiary issues in regard to blood and breath alcohol tests."

Larry Taylor has lived an active and colorful existence, and has been married four times.

He has been with his current wife Judy, a nationally known consultant in child mentoring programs and, ironically, a teetotaler, for the past 18 years.

"I finally got it right this time," says Taylor, who has a son, Chris Taylor, 32, who is an Orange County public defender.

Well-traveled

The Taylors have a bayfront home in the tony Treasure Island area of Naples, and take exotic vacations – Tanzania, Kenya, Cambodia, Vietnam, Nepal, Galapagos Islands and the Antarctic – throughout the world when they manage to get a few weeks away from their busy schedules.

Taylor, 69, is a fitness devotee who lifts weights, paddleboards, kayaks, cycles and swims regularly across Alamitos Bay to the Peninsula.

He is also similarly committed to what has become his calling in life.

"The same forces that created the Volstead Act and Prohibition in 1919 are doing the same today, but in a more disingenuous manner with checkpoints and Breathalyzers and the continual lowering of the legal blood-alcohol limit," he says. "Now they’re trying to get it down to .05. I was giving a lecture at Harvard a while back, and had my wife come up and blow into a Breathalyzer. She blew a .04. And she’s never had a drink in her life. I’m against drunk driving. I’m also against having our civil liberties curtailed, which is what has been happening with ominous frequency in recent years."


(Thanks to Doug Krikorian.)
 

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MADD’s “War on Drunk Driving” Marches On

Thursday, September 22nd, 2011

A few years ago, MADD readjusted their prohibitionist crosshairs from drunk drivers to include under-age drinking generally – regardless of any driving.  As I pointed out in a previous post (MADD continues shift toward prohibition), the organization amended their official "Mission Statement" of preventing drunk driving:


By 1999, MADD had greatly expanded its work on preventing underage drinking and emerging research underscored our efforts to prevent youth alcohol use. MADD’s efforts in this area were also encouraged and supported by the government, corporations, educators, the media and public. The mission statement was officially changed to make preventing underage drinking a free-standing prong of the mission. The updated mission, which continues to guide the organization today, read “The mission of Mothers Against Drunk Driving is to stop drunk driving, support the victims of this violent crime and prevent underage drinking.”


So…where are we going with MADD’s so-called "War on Drunk Driving"?


Boy, 13, Suing Livonia Over Forced Alcohol-Breath Test

Detroit, MI.  Sept. 20 – A 13-year-old boy is suing the city of Livonia for allegedly forcing him and his friends to take an alcohol-breath test without a warrant during a school picnic, according to a lawsuit filed in federal court today.

According to the lawsuit: “A 13-year-old middle schooler with no history of alcohol abuse or disciplinary problems, was forced to take a breathalyzer test by the Livona police based on an unfounded accusation that he had been drinking during a school field trip to Rotary park.”

The breath test ultimately showed that the boy – an 8th grader at Discovery Middle School in Canton – had not been drinking, “but he should not have been subjected to the procedure in the first place,” the suit stated.

The American Civil Liberties Union, which filed the lawsuit on behalf of the boy and his mother, said the breathalyzer amounted to an unlawful search under the Fourth Amendment.

“Federal and state courts have ruled over and over again that if a teen is not driving, the police need a search warrant to administer a breath test,” said ACLU staff attorney Dan Korobkin. “The Fourth Amendment’s warrant requirement is designed to prevent exactly what happened in this case. When there is no evidence that a child has done anything wrong, he should never be subjected to this degrading and embarrassing procedure in front of his teachers and peers.”

According to the lawsuit, the incident happened during an eighth grade graduation celebration in Livonia’s Rotary Park. The plaintiff, who had graduated from Discovery Middle School in Canton, went into the woods with some friends for a short walk, the lawsuit stated.

When they returned, they were accused of drinking by the assistant principal who had followed them into the woods and found an empty liquor bottle on the ground, the suit stated. The students said that the bottle did not belong to them and that they weren’t drinking, but the assistant principal didn’t believe them and called the police, the lawsuit said.

When officers arrived, they forced the students to take a breath test without their consent, and without notifying the parents of the accusations, the ACLU argues.

The teens each registered a blood-alcohol level of 0.00, proving their innocence.

“My son has always been taught to respect his educators and law enforcement,” said Tina Barbee, the plaintiff’s mother, said in an ACLU press release. “In June, he was taught a very different lesson – educators and police make mistakes. Although a wrong was done, I truly believe it can be made right. My son is standing up for his constitutional rights so that what happened to him doesn’t have to happen to anyone else.”

 
MADD is well along the path toward its eventual goal.


(Thanks to Joe Cadillic.)
 

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A Growing Backlash Against DUI Roadblocks?

Tuesday, September 13th, 2011

Anyone who has read my blog for any length of time knows how I feel about the efficacy and constitutionality of DUI roadblocks (aka "sobriety checkpoints").  See, for example, Do DUI Roadblocks Work?, Do DUI Roadblocks Work? (Part II), DUI Logic: Roadblocks Effective Because They're Ineffective, and Are DUI Roadblocks Constitutional?.  

Recently, I've read some news articles and editorials that lead me to believe there is a growing backlash against these police-state procedures.  The following is from the Editorial Board of  the Colorado Springs Gazette:


Opinion: Cops Detain 1,407 Innocent Drivers

Colorado Springs, CO.  Sept. 6 – Colorado Springs police detained 1,420 drivers last Saturday in yet another ineffective effort to catch drunken drivers. As a result of detaining thousands of drivers and countless passengers, police cited eight — a whopping .56 percent — on suspicion they had driven under the influence. Meanwhile, cops working the checkpoints were not on the roads providing legitimate public safety.

This part is weird: Five others were cited for open containers. Imagine driving through a swarm of police, who are stopping vehicles and looking into them, with an open beer.

Drunk drivers kill. Those who drink, even a little, have no business getting behind the wheel of a motorized vehicle for the rest of the day. Just don’t do it for any reason.

Society needs to eradicate drunken driving, but sobriety checkpoints are not the answer. They violate the Fourth Amendment, which forbids unlawful searches and seizures. They are permissible under the Supreme Court’s 1990 ruling in Michigan Department of State Police v. Sitz, a case in which the majority decided to allow an erosion of liberty to facilitate a compelling interest in reducing fatalities. Checkpoints would be easier to accept if they actually improved public safety.

“The net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative,” wrote Justices Paul Stevens, William Brennan and Thurgood Marshall in their Michigan v. Sitz dissent.

Most public safety experts acknowledge that traditional policing, in which officers look for drunken drivers while patrolling, is more effective. Law enforcement brass like checkpoints because they create overtime pay. An investigation by the University California found that checkpoints generate $30 million in annual overtime pay in California alone. Checkpoints, which are funded with transportation grants, are public relations stunts…

Our police are supposed to protect and serve the public, not detain individuals to generate publicity and overtime pay. Please take a pass on future checkpoint grants in Colorado Springs and use traditional methods to catch drunk drivers.


The fact is that most roadblocks are increasingly a means of illegally using DUI roadblocks as an excuse for stopping vehicles to find minor violations such as equipment violations, expired car registrations and drivers licenses not in possession.  See my posts, DUI Roadblock: 1131 Stops, 114 Tickets, 0 DUI Arrests, Another "Successful" DUI Roadblock: 3000 Drivers Stopped, 0 DUIsDUI Roadblocks for Fun and Profit and The True Purpose of DUI Roadblocks

As long as local governments continue to rake in desperately-needed revenues from these fraudulent police practices, "DUI" roadblocks will continue.
 

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Why is the Most Important Evidence in DUI Cases Always Destroyed?

Tuesday, September 6th, 2011

As we all know from watching TV, the police are always very careful to preserve the evidence in criminal investigations…

Except in DUI investigations.

What is the single most important piece of evidence in most drunk driving cases? The Breathalyzer test, of course  In fact, it’s the only evidence offered to prove the crime of driving with over .08% blood alcohol. And it’s pretty important to the related charge of "driving under the influence", too: the law presumes the defendant is under the influence if the test result is .08% or higher.

Evidence just doesn’t get more important than that.

So, of course, the police are careful to preserve the breath sample, right? I mean, there may be some question later of whether the machine was working correctly; it would be a simple matter to save the breath sample so it could be tested again on another machine. And, hard to believe, but the defense may not want to just take the officer’s word that the test results were from the defendant’s actual test.

Unfortunately, the breath sample is routinely destroyed moments after it is tested.

But how can this be? That’s a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and reversed the conviction:


Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).


How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a "field crimper-indium encapsulation kit" was readily available, cheap and approved by the California Department of Health Services. So why isn’t the evidence saved in DUI cases today?

The Trombetta case was eventually appealed by the state to the United States Supreme Court….where it was reversed:


"Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case." California v. Trombetta, 467 U.S. 479 (1984).


What? Neither of these two conditions is met in a DUI case? Let’s take another look at the Supreme Court’s test:


1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..

What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of any value to the suspect?  And if not, how is any defendant supposed to prove that value?

2. The defendant was able to "obtain comparable evidence by other means"…..

How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him — but it would probably be so much later that it would not be relevant or even admissible in court.  And the cops are unlikely to accommodate him: why would they want evdience that might contradict their own evidence?  And besides, it takes too much time and effort to go to a hospital.


Another example of  The DUI exception to the Constitution.

It’s interesting that the New Hampshire Supreme Court later rejected the Supreme Court’s reasoning, and relied upon its own state constitution in requiring breath samples to be saved:


A suspect would face numerous practical difficulties in obtaining a second sample on his or her own. While in police custody, the suspect would have to locate an available, licensed technician capable of promptly performing a second test, no matter what time of day or night. Even if a defendant successfully obtained an independent second test, the results would not have the same evidentiary force as would a second test performed on the same machine at approximately the same time.  Opinion of the Justices, 557 A.2d 1355 (1989).


The Trombetta decison was, as intended, a huge green flag to police agencies across the country: Go ahead and destroy the main evidence — but only in DUI cases. And law enforcement agencies have happily complied ever since.
 

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