Archive for June, 2012

Court Finds Cop “Immune” for DUI Arrest Without Evidence

Friday, June 29th, 2012

The following facts are fairly typical of what happens in a disturbing number of DUI cases:  

Ohio: Federal Court Overturns Bogus DUI Arrest

Chillicothe, OH.  June 19 — A sober woman is fighting back after she was falsely arrested and imprisoned for driving under the influence of alcohol (DUI). The Sixth Circuit US Court of Appeals ruled last Wednesday that Catrena Green could proceed in her lawsuit against Ohio State Highway Patrol Trooper Adam B. Throckmorton after lab tests proved she had a blood alcohol content (BAC) level of 0.0 and no drugs in her system.

The three-judge panel overturned the decision of a US district court granting Throckmorton immunity for his actions in Chillicothe, Ohio in August 2008. He had seen Green’s SUV driving in the opposite direction with her high beams activated. Throckmorton made a U-Turn and pulled her over in stop recorded by a dashboard camera. Green explained she had her high beams on because it was difficult to see in the wet conditions and she was trying to be careful. She asked whether she had done anything else wrong.

"No, not really," Throckmorton said during the stop. "You just brighted me and blinded me."

Throckmorton then claimed that Green’s pupils were "constricted" and that she had difficulty getting out of her seatbelt. Though Green did not smell of alcohol or drugs, Throckmorton decided to perform field sobriety tests on her. He noted that she was unable to follow the swift motion of his pen in a horizontal-gaze nystagmus test that he spent twenty seconds administering. He noted that "she talked slowly" while repeating the letters of the alphabet beginning with "L" and ending in "S." She struggled to stand on one leg in the balance test. Green, who was 42 and overweight at the time, swayed slightly while performing the walk-and-turn test.

On the basis of those tests, Throckmorton arrested Green for DUI. She spent two days in jail while trying to meet bail with only a credit card. Green argues she was detained and tested without probable cause, in violation of the Fourth Amendment. She insisted that the lab tests proved the trooper was lying.

"We find her argument persuasive," Judge Ronald Lee Gilman wrote for the court. "What matters here, rather, is what mattered in Miller: that a subsequent test for drugs and alcohol showed that the driver was in fact sober. That evidence alone is sufficient to cast doubt on the truthfulness of Throckmorton’s testimony regarding Green’s pupils."

The court decided that a jury should decide whether there were specific and articulable facts, not just a hunch, justifying Green’s detention for the sobriety tests.

"We understand, of course, the difficulty inherent in making on-the-fly determinations regarding possible driving impairments, just as we recognize the severity of drunk driving and the potential consequences of an incorrect call had Green ultimately proven to be impaired," Judge Gilman wrote. "But this difficulty and these consequences always exist when an officer stops someone for a traffic violation. Yet officers do not have free rein to administer field sobriety tests to whomever they please and then to arrest that person for making the slightest misstep while performing the tests. Whether that is what happened in this case is a question for the jury."

So….no erratic driving….no slurred speech….no alcohol on the breath….no swaying or poor balance….no bloodshot eyes…no difficulty understanding directions.  But she used her bright lights, had trouble standing on one leg (42, overweight and nervous) and "failed" a nystagmus test which was clearly incorrectly given. Oh….and she had no alcohol or drugs in her body.

The only question here is:  Why did the lower court give this idiot a free pass?  Since when do cops have "immunity"?  


New Concept from Canada: Licenses Suspended “Indefinitely” in DUI Cases

Saturday, June 23rd, 2012

I've written in the past about the guilty-until-proven-innocent approach to DUI license suspensions and the almost complete lack of due process.  See, for example, "Due Process" for DUI License Suspensions, Secret Memo: DMV License Suspension Hearings Rigged and Judge: DUI License Suspension Hearings "Unacceptable".      

In California, for example, when a citizen is suspected of drunk driving and is arrested, the cop confiscates the license and gives the suspect a "Notice of Suspension".  The citizen has 10 days in which to call the DMV to demand a hearing, or the right to contest the cop's automatic suspension is lost.  If a hearing is granted, it will be at the DMV's offices; the prosecutor will be a DMV employee with a high school degree.  Oh yes, and the judge will be….the same person.  Right: judge, jury and executioner — without any legal training and answerable only to his/her employer — the DMV.

As bad as this is, apparently our northern neighbors in the province of Alberta have gone a step further:  unlike DUI suspensions in the U.S., which are for a specific period of time, those in Alberta are for an indefinite period — until the criminal charges are "resolved" in court.  In other words, the accused — guilty or innocent — is coerced into pleading guilty if he wants his license back.

Lawyers Call Alberta's Drunk Driving Penalties Unconstitutional

Edmonton, Alberta, Canada.  June 19 – Civil Liberties Association lawyer Joseph Arvay has been retained by Alberta firm Roadlawyers, which specializes in drunk driving cases, one of several that are decrying the Alberta government’s decision to indefinitely suspend licences of drivers who blow over the Criminal Code limit of .08 blood-alcohol content.

Drivers police deem are over the .08 limit will immediately have their licences suspended without even seeing a judge, a penalty that will remain in place until the charge is resolved in court.

“I think it’s clearly contrary to the Constitution and clearly contrary to the Charter (of Rights and Freedoms),” said Roadlaywer attorney Tim Foster.

“We intend to challenge the legislation as soon as we get retained on a file dealing with one of these — we’re going to bring a Constitutional challenge to try to strike the law down.”…

In what’s being called a first for Canada, Transportation Minister Ric McIver came out Monday saying drivers who blow over .08 will be hit hard with an indefinite suspension starting July 1, one of several get-tough measures rolled out in the Traffic Safety Amendment Act passed last year.

McIver said drivers simply weren’t refraining enough from tipping their glasses before hitting the roads and harsher penalties were needed to ensure “all of us feel more secure when we go out on Alberta roadways.”

Many lawyers, however, say the new penalties are nothing more than a tactic that will strong-arm drivers into issuing guilty pleas rather than challenge their cases in court.

“There’s some good and bad about that from a public policy perspective,” said Alan Pearse, who specializes in DUI cases in Calgary.

“The good news is you will almost certainly force guilty people to plead guilty. The bad news is you’re likely going to force some innocent people to plead guilty as well.”

Lawyer Bob Sawers called it the government’s way to “extort” guilty pleas from Albertans who can’t afford to lose their licences for several months and said he would demanding trial dates be set within two months.

Apparently, Transportation Minister McIver's idea that "harsher penalties were needed to ensure all of us feel more secure" is to simply force anyone suspected of drunk driving to plead guilty.

I can imagine prosecutors, cops and Mothers Against Drunk Driving drooling over the idea of adopting this approach in the States….


Field Sobriety Test Studies Found to Be Flawed

Monday, June 18th, 2012

Proponents of the so-called “standardized” field sobriety tests (SFSTs) have long pointed to federally-funded field studies which indicate a high correlation between performance on the tests and actual blood alcohol concentrations (BAC). 

Subsequent studies, however, have called those conclusions into question.

Originally, the National Highway Traffic Safety Administration (NHTSA) paid a private group, the Southern California Research Institute, to conduct studies to find which among the various field sobriety tests used by police were most effective and to develop a standardized 3-test battery.  SCRI subsequently reported to NHTSA that a battery of walk-and-turn, one-leg-stand and nystagmus provided a strong correlation with breath test results.

Confronted with questions about those conclusions, NHTSA later commissioned the same researcher who had conducted the original studies, Marcelline Burns, to  corroborate the accuracy of her own tests of the SFSTs – rather than commission an independent source. 

Burns accompanied a small number of San Diego officers conducting actual DUI investigations in the field.  After administering the SFSTs, the officers were asked to guess whether suspects had blood alcohol  concentrations (BAC) over or under .08%.   Burns reported a 91% correlation between SFSTs and BAC over-under estimates, thereby validating the battery of tests she had helped create.

A subsequent scientific article challenged Burns’ corroboration of her own research.  In Hlastala, Polissar and Oberman, “Statistical Evaluation of Standardized Field Sobriety Tests”, 50(3) Journal of Forensic Sciences 1 (May 2005), the raw data used in the validation study were obtained from NHTSA through the Freedom of Information Act.  The methodology used was then reviewed and the data subjected to statistical analysis.

The methodology was found to be seriously flawed in a number of respects.  For one thing, many of the suspects had very high BACs, making estimates of whether a suspect was over .08% obvious regardless of SFST performance.  For another, there was no attempt to isolate the influence of SFST performance from other factors:  officers estimated BACs after the field sobriety tests, but they also took into account earlier observations, such as erratic driving, slurred speech, odor of alcohol, flushed face, admissions as to amount of alcohol consumed, etc.

The most glaring defect in Burns’ corroborative study was that “all police officers  participating in the study were equipped with NHTSA-approved portable breath testing devices”.  In other words, the San Diego officers already had the results of portable breath tests before they were asked to estimate the BACs later obtained at the station!

After reviewing the flawed methodology, the raw data was then statistically analyzed.  The conclusions:

If we consider three ranges of MBAC [measured blood alcohol content], 0.00% to 0.04%, 0.04% to 0.08%, and 0.08% to 0.12%, the officers’ EBAC [estimated blood alcohol content] overestimated the MBAC 76%, 67% and 48% of the time, and underestimated it 14%, 26% and 28% of the time. 

In other words, officers relying upon field sobriety tests were far more likely to overestimate  BACs than underestimate — particularly with those suspects having very low BACs. 

(T)he utility of the SFST depends very much on how intoxicated an individual is.  Accuracy (and specificity) are low when individuals are close to 0.08% MBAC, but if the individuals are quite intoxicated, such as above 0.12%, then accuracy is high.

In borderline cases involving persons at or under the legal limit, then, officers were very poor at estimating blood-alcohol levels based upon SFSTs.  And it is these cases, of course, that are critical.  Suspects with high BACs are relatively easy to single out without the help of field tests; it is for the closer cases, particularly those who are innocent (below .08%), that the SFSTs are designed.  And it is with these very cases that the tests apparently fail. 

Put another way, accuracy in using field sobriety tests is high when they are not needed — and low when they are.

For another independent study conducted by Professor Spurgeon Cole of Clemson University, in which he found field sobriety tests to be worthless, see Are Field Sobriety Tests Designed for Failure?.


The National College for DUI Defense

Wednesday, June 13th, 2012

Until a few years ago, attorneys attempting to defend a client against drunk driving charges were general practitioners who had little, if any, understanding of the nature of the offense. They were unfamiliar with such DUI investigatory methods as field sobriety tests, and there was an almost complete lack of seminars on how to defend these clients.

Most importantly, defense lawyers were completely ignorant about the complexities of blood alcohol analysis — whether of blood, breath or urine samples. How does this "breathalyzer" work? What is "infrared analysis"? "Gas chromatography"? How is alcohol metabolized in the human body? What is "Widmark’s formula"? "Hematocrit"? What is "retrograde extrapolation" and how does that work? What physiological variables occur between individuals? What medical conditions can effect a breath reading and how? What happens if blood samples ferment or coagulate?

Chemical analysis of blood, breath or urine involved knowledge of such highly technical fields as physiology, organic chemistry, physics, biophysics, electrical engineering — subjects far beyond the experience and training of lawyers.

Then about 17 years ago, ten of the most prominent DUI defense attorneys in the country met in a hotel conference room near Chicago’s O’Hare Airport.  Over the following three days they hammered out plans for a new professional organization: "The National College for DUI Defense". They created this as a non-profit organization dedicated to improving the quality of the DUI bar, primarily through providing educational seminars, and donated their own money for initial funding.  An important secondary purpose of the organization was to address the problem of insularity in the profession — the isolation of lawyers; the College would be a tool with which attorneys across the country could share information, ideas and experiences.

I am proud to say that I was one of those ten founders, and have since served as Dean and on its Board of Regents. For each of us, the College was a true labor of love.

The first national seminar was held at Harvard Law School. It was an intense 3-day series of lectures, demonstrations and workshops, featuring a faculty of the top lawyers, scientists and forensic toxicologists in the field.

The experiment was a huge success, and has been repeated every July at Harvard for the past 16 years. In fact, the College’s governing Board of Regents soon expanded this educational effort by creating a second 3-day annual seminar in the winter. This proved another resounding success: in the recent session held in Las Vegas, there were over 500 lawyers attending from all over the country.  Other annual seminars, one focusing on blood-alcohol science exclusively, soon followed.

The National College for DUI Defense also created an internet website, along with an email discussion group where attorneys could share information and ideas. There are currently hundreds of members across the country using this forum — and discovering, for example. that what one lawyer in Texas has found effective in dealing with the effects of diabetes on breath tests can be helpful to another in Oregon.

Having provided the means to develop greater skills in this demanding field, the College next addressed the need to recognize those lawyers who had achieved the highest levels of competence. Within recent years, they began certifying attorneys as specialists in DUI defense. In order to be Board-certified, an applicant must satisfy demanding requirements of practice and trial experience, as well as pass intensive written and oral examinations.

Most recently, the College has been successful in applying to the American Bar Association for recognition of a new legal specialty: DUI defense. After considerable study, the ABA went further and recognized the National College for DUI Defense as the sole organization authorized to certify attorneys as specialists in this new field. 

Today, with headquarters in Montgomery, Alabama, the College has a membership of over 1200 attorneys across the country.  It continues to sponsor or c0-sponsor numerous national seminars annually, including the original seminar at Harvard Law School; maintain an extensive online library of legal and scientific literature related to drunk driving litigation; contribute funds and support to Supreme Court appeals involving important DUI-related legal and constitutional issues; supervise demanding ABA-approved oral and written exams of attorneys applying for certification as DUI specialists; and provide a busy online discussion forum for its 1200+ members and selected blood-alcohol scientists to share ideas, problems and solutions.

The result: if you are some day accused of this demonized offense, you are more likely to have an attorney who understands the very complex legal and scientific issues involved — in other words, you are more likely to realize your constitutional right to competent counsel and due process.


DUI Suspect Forced to Have Penis Catheterized

Thursday, June 7th, 2012

Just when you thought MADD’s "War on Drunk Driving" had reached the limits of sanity…. 

Man Sues Police Over ‘Forced Catheterization"

Salt Lake City, UT.  May 24 - A 22-year-old college student has filed an $11 million federal lawsuit against police in central Utah, claiming they forced a catheter in him after he refused to consent to a search for marijuana…

“I don’t think it’s right what they did,” Cook told FOX 13 on Thursday. “I’m pretty sure they’re doing it to other people. They made me feel like an animal.”

The former Snow College student said he was smoking cigarettes with friends back in 2008 when police approached their car, parked on a roadside in Ephraim. His lawsuit, filed in February in U.S. District Court, claims police searched the young men and their vehicle. The police claimed they could smell marijuana, but could not find any during a search, Cook claims.

After a K-9 still could not find marijuana, an officer popped the trunk and found a glass pipe inside. Cook claims the officers then asked him to drive his friend’s car to the police station.

“If somebody’s under the influence of marijuana, the last thing you want to do is put them in a car and drive,” said Cook’s attorney, Lindsay Jarvis. “That goes against every statute the state has, and so that’s where it gets a little frustrating and it gets out of control from there.”

Cook said he believed that after driving his friend’s car to the police station, he thought he would be free to go. Instead, he was put in a holding cell and officers demanded he take a drug test.

“I asked for an attorney because I didn’t know if this was right what they were doing,” he said. “Once I did that, they said ‘We’re getting a search warrant so we’re going to have your urine by the end of the night.’ “

Police obtained the warrant, his lawsuit claims, and they drove him to Sanpete Valley Hospital. After being told that a catheter would be inserted into his body to obtain urine, Cook said he said he would consent to giving a sample but became “nervous” and could not urinate.

“The nurse told (an officer) to hold my shoulders, so he held my shoulders and then the nurse undid my pants, wiped me down with iodine and put the tube in me,” Cook told FOX 13. “And then they took me to jail.”

Cook was arrested for marijuana possession and resisting arrest. Jarvis said the resisting arrest charge was for refusing to give a urine sample. She accused police of “bullying” people with forced catheterization.

“This is being used as a punishment to try and get them to comply,” she said. “Rather than employ a simple blood test, they’re forcibly catheterizing these people.”

Forced catheterization is a relatively new issue in the courts. A similar lawsuit was filed by a woman in 2008 against police in neighboring Sevier County. It was dismissed after a federal judge ruled the officers acted without malice and their intent was to “bring her to justice” for the charges she was facing at the time…

“I want them to be accountable for what they did,” Cook said.

If you think this incident in 2008 is an isolated one, you may be surprised to discover that forced catheterization for urine samples is a growing DUI law enforcement technique.  See, for example,  Catheter Forced Up Penis After DUI Arrest (Washington) and DUI Cops Inspired by CIA? (Indiana).  Forced draws of blood with syringes have already become a staple in the "War" – including draws with syringes used by the cops themselves:  Taking Blood by Force, Forced Blood Draws by Cops Spreading and Blood Draws in the Backseat by the Dashboard Light.