Archive for December, 2011

Let’s Define the Objective: Preventing Drinking – or Traffic Fatalities?

Tuesday, December 27th, 2011

As I’ve mentioned in past posts, six years ago Mothers Against Drunk Driving changed their "Mission Statement" from one of preventing drunk driving to a dual goal: preventing drunk driving — and underage drinking (regardless of driving).  See, MADD Continues Shift Toward Prohibition.  Clearly, the focus is on alcohol rather than on preventing injuries or fatalities.  

Interestingly, MADD has been silent as the greater danger increasingly appears to no longer be from alcohol:  statistics now clearly point to distracted and drowsy driving as greater threats on the highways.  See, for example, Most Dangerous: Drunk, Drowsy or Distracted?

Now let’s add one more type of impaired driving to the scale: drugged driving….

Driving on Drugs Skyrockets, Drunk Driving Drops

Phoenix, AZ.  Dec. 21 –  East Valley DUI Task Force officers almost need to be chemists to keep up with the concoctions used by impaired drivers. Drug arrests are soaring while alcohol arrests are declining.

The job of nabbing impaired drivers is becoming far more complicated, with drivers under the influence of not only alcohol but prescription and illegal drugs, said Mesa police Sgt. Dave Meicke, a supervisor of this year’s crackdown.

He said drug arrests by one of the nation’s longest and largest DUI task forces have increased from 13 percent in 2002 to 59 percent this year.

Meicke attributes the change to steady progress on education about the hazards of driving under the influence, more officers trained to recognize drug impairment and more people abusing prescription and illegal drugs…

Perhaps MADD’s focus should be on preventing injuries and death on the highways — rather than on Prohibitionist attacks on the evils of alcohol.  


How to Get Road Rage Revenge — and Make a Quick Buck

Friday, December 23rd, 2011

Need an easy $100? Just use your cell phone and report that guy who’s been tailgating you…

Call in Drunk Driver, Get Paid $100

Chicago, IL.  Dec. 21 – This holiday season, you can earn a little extra cash by reporting suspected drunk drivers on the roads.

The Alliance Against Intoxicated Motorists (AAIM), an anti-drunk driving group, is expanding its program throughout the streets of Illinois for the next two weekends, according to the Chicago Sun-Times.

The "Drunkbusters" program gives callers the opportunity to collect $100 for reporting an intoxicated driver. In order to be paid, the call must lead to a DUI arrest.
Drunkbusters was established in 1990 and has since given out more than $445,000, which resulted in the arrests of more than 4,450 impaired motorists, according to the Sun Times.

Note:  The $100 does not depend on the person reported being convicted — only for being arrested.  And the cop responding to the call already has you as a witness to what you claim is drunken driving, so chances of an arrest are high. I wonder how many of those 4,450 arrested motorists were actually convicted?

Bounty hunting on the highways….


Why Do Police Always Destroy Breathalyzer Evidence?

Monday, December 19th, 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. In fact, it’s the only evidence of the crime of driving with over .08% blood alcohol. And it’s pretty important for the “driving under the influence” charge, 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 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 he administered the test correctly and that the test results were from the defendant.

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 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?

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.

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 decision 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.



Coercing Breath Tests With Threats of Pain

Monday, December 12th, 2011

I’ve written in the past about the growing practice of forcibly taking blood from a drunk driving suspect, sometimes done by a cop in the field.  See, for example, Taking Blood by Force, Forced Blood Draws by Cops: Constitutional?Forced Blood Draws by Cops SpreadingBlood Draws in the Back Seat by the Dashboard Light and Forced Blood Draws: Citizen Backlash?.   

Here’s a new tactic: threaten the suspect with strapping him down and painfully jabbing a needle into him (however many times it takes to get a blood sample)…unless he agrees to "voluntarily" take a breath test.

Texas Blood Test Aims at Drunk Drivers

Wall Street Journal, Dec. 11 —  Texans arrested for drunken driving should be prepared to give blood this holiday season.

Cities and counties across the state are increasingly demanding that drunken-driving suspects who refuse to take breathalyzer tests submit to blood tests that measure the amount of alcohol in their systems.

The blood-test policy—dubbed "no refusal" by law-enforcement officials, because it prevents drivers from refusing to provide evidence of intoxication—has grown from a novel procedure used in a few Texas jurisdictions to an initiative used by police statewide, particularly during weekends and holidays when drunken driving is most common. The no-refusal initiative has also caught on in other states, including Florida, Illinois, Louisiana and Missouri…

Texas courts have uniformly upheld the constitutionality of mandatory blood testing, attorneys said. But criminal-defense lawyers say such mandatory tests trample suspects’ rights to be free from unreasonable searches and seizures. "It’s an erosion of civil liberties," said Austin defense lawyer Samuel Bassett. "If we can poke people involuntarily for evidence, where do we draw the line?"…

Police are empowered to strap a suspect to a chair, if necessary, to obtain a blood sample. That allows blood to be drawn quickly—a key benefit to prosecutors because blood-alcohol concentrations dissipate over time…

In El Paso, police find that the policy actually encourages people to submit to breath tests. "We give people the option of blowing into a tube or getting poked with a needle," said Lt. Rod Liston. "People increasingly are going with the less painful option."…

Hmmm…Threatening to "poke" a suspect with a needle actually "encourages" him to submit to a breath test?  What a surprise!  But I guess this wouldn’t be "torture" using the Attorney General’s definition requiring organ failure.

So:  "Submit to a breath test…or we’ll strap you into a chair and jam needles into you."   Welcome to the War on Terrorism…I mean, Drunk Driving.


MADD’s Mothers Hitting the Bottle?

Thursday, December 8th, 2011

Mothers Against Drunk Driving has been very successful in pushing for lower blood-alcohol levels, Draconian criminal penalties, widespread roadblocks, unreliable evidence — and eroding our constitutional rights in the process.  See, for example, The DUI Exception to the Constitution and DUI, MADD and the "New Prohibition".

However, it would appear that MADD’s aim might be constructively redirected to their fellow Mothers…

Drunken Driving Arrests for Women Up 36 Percent

Washington, DC. Dec. 6
 – The number of drunken-driving arrests for women has shot up in recent years according to a study being released today by the Traffic Injury Research Foundation.

They’ve increased 36 percent over the last decade.

In case you’re thinking about having a glass of wine or two before bringing your child to a friend’s house, here’s more to ruin the idea: The study also found that the average female drunk driver is older and better educated than her male counterparts. They also tend to hold lower-paying jobs and be primary caregivers to children.

That profile wasn’t a shock to researchers since the study, funded by the distillers’ association The Century Council, was triggered by the attention-getting accident in 2009 when a mother, Diane Schuler, drove her minivan down the wrong side of a New York highway. She caused a crash that killed herself, her daughter, her three nieces and three men in another car. It was later determined that she had been drunk and high.

Schuler’s was an extreme case that jolted attention to the unspoken truth that some parents drink to excess while caring for their children. Upsetting as it was, though, the news left many parents thinking that her drinking shared no resemblance to their own. A glass or two of wine during the day didn’t seem in the same league.

What today’s study reveals is that mothering and drinking may be a more common problem than we realize…

Physician, cure thyself?