Archive for September, 2012

DUI Roadblock: 240 Sober Drivers, 1 DUI Bicyclist

Monday, September 24th, 2012

So I’ve posted repeatedly in the past about the pointlessness (not to mention questionable constitutionality) of DUI roadblocks (aka "sobriety checkpoints").  See, for example, Do DUI Roadblocks Work?, Do DUI Roadblocks Work? (Part 2),  Are DUI Roadblocks Constitutional?.  And I’ve commented on the ridiculous extents to which cops will go to find a "DUI".  See, for example, DUI in a Wheelchair?, DUI on a Horse? and DUI on a Lawn Mower.

In today’s news, we have both….

Bicyclist Arrested on Suspicion of Riding Under the Influence

Red Bluff, CA.  Sept. 22
– A man was arrested after he was found to be riding a bicycle while impaired, police said.

The arrest came during a sobriety checkpoint held Friday in Red Bluff, said officers with the Red Bluff Police Department. They said Christopher Pence, 30, of Paradise, rode his bike into the checkpoint area. Officers said they stopped him because he didn’t have a headlight on his bike, as required by law.

Police said Pence appeared intoxicated and was arrested on suspicion of riding a bicycle while under the influence.

About 240 drivers were also screened between 8 p.m. and 1 a.m. One man was issued a citation for an outstanding warrant from Butte County. Two others were issued citations for driving with a suspended license, and two other drivers were driving with expired licenses.

Another successful DUI roadblock:  240 drivers stopped…no DUIs — but they made the world safe from one tipsy bicyclist!


Busted for Riding a Horse Under the Influence

Wednesday, September 19th, 2012

Just when you thought MADD's "War on Alcohol" — I mean "War on Drunk Driving" – had reached the limits of insanity….

Kentucky Man Charged with Riding Under the Influence

Lexington, KY.  September 19, 2012 – A Kentucky man was arrested for driving under the influence in what deputies have called unusual circumstances. The man was riding a horse.

Danny Reynolds was riding his horse on a rural road near his house about 8 miles south of Nicholasville in Jessamine County.

Sheriff's deputies told the 55-year-old to get down from his horse. They said he staggered while dismounting the animal. Reynolds said he staggered because he was severely diabetic and feeling light-headed.

Officials said tests showed Reynolds' blood-alcohol level was two time over the legal limit. The arresting officer also found rolling papers and marijuana in his pockets.

Reynolds told CBS affiliate WKYT he drank a couple beers to celebrate his son's birthday, but did not think he was drunk. He said he normally doesn't drink.

According to the arrest report, "(Reynolds) had several beers in his saddle bag and a mason jar which he identified as moonshine."

Chief Deputy Allen Peel admitted it was a unique case, but the deputies were concerned about Reynolds' safety.

"He could have swerved into a car, causing danger to himself and others," said Peel.

Reynolds was charged with operating a non-motor vehicle under the influence, possession of marijuana and drug possession.

"I really didn't mean to cause any harm," Reynolds said. "I definitely learned my lesson and I hope other riders pay attention."

Similar cases have happened in Tennessee. A woman was arrested in 2009 while riding a horse in the Shelbyville Christmas parade. She was charged with public intoxication.

And if you think this Kentucky case is an isolated aberration, see my posts DUI on a Horse? (Pennsylvania),  DUI on a Horse (California), DUI on a Horse (Alabama) and Drunk Riding (Colorado).

What's next, riding a bicycle drunk? Or maybe driving a Zamboni on an empty ice rink under the influence?  Or a lawn mower?  Or even DUI in a wheelchair?

Ridiculous, you say?  See Felony Bicycle DUIZamboni DUI, More News from the Front (lawn mower) and DUI in a Wheelchair


Why Cops Can’t Testify to Evidence Pointing to Innocence

Saturday, September 15th, 2012

How does a police officer testifying in a drunk driving trial recall every detail of a DUI investigation conducted months earlier?

When an officer stops a motorist and suspects that he may be under the influence of alcohol, he begins to mentally record various observations. Was the driving erratic, and in what way? What was his reaction to the red overhead lights? How did he pull over and park? Was there an odor of alcohol on the driver’s breath, and how strong? Could it have come from the passenger? Was the driver’s face flushed, eyes bloodshot, speech thick and slurred? How did he respond to questions and directions? What were his answers to questions such as "Where are you going? What time is it? Have you been drinking? What? When? Where? How much?" Did he have a current license and registration? Did he fumble with his wallet pulling out his license? Stagger when stepping from the car? What did the passenger say? How did she appear? And so on.

Then there are the DUI field sobriety tests. How did he perform in the walk-and-turn test? Did he understand the instructions? Did he start before he was told to? How many steps out? Did he turn as instructed? How many steps back? Which, if any, of the 18 steps were off the line? Where did each step land relative to the line? Which, if any, were not heel-to-toe? Was he using his arms for balance? Did he say anything during the test?

And the other three or four drunk driving field tests….In the horizontal gaze nystagmus test ("Follow my pen with your eyes without moving your head"), was there "smooth pursuit" of the right eyeball? What did the pupil movement look like? How many eye passes were there? Did "onset" of nystagmus occur before 45 degrees? At what degree? Was the white of the eye visible at the extreme range of deviation? Was there "distinct nystagmus" at this extreme? And what about all these same observations in the left eye?

And maybe two or three other field sobriety tests. And then the arrest and the breath test at the station: What was the procedure used to administer the test? What messages were displayed by the machine in preparation? Did the suspect say anything about a medical condition? How many breath samples were captured? Was there a blank test run before each sample test? What were the readings of the blanks? Of the suspect’s two samples? And so on…

In other words, there are a vast number of things to remember about what happened in the course of a properly conducted drunk driving investigation. And the officer may have to testify some day in trial about all of these things. This has to be done from memory and under oath, and probably after dozens of other arrests in the meantime.

How does he do it?

Well, typically the officer sits down an hour or two after the arrest and writes out a "DUI arrest report". This has to be from short-term memory (few officers attempt to write down notes in the field: it is usually dark, one hand is tied up with a flashlight and police policy requires that the other hand — the gun hand — to be free at all times). This report may be only a couple of pages, or it may run to five or six pages. And this creates two basic problems…

First, how can the officer remember an hour or two later everything that happened? Imagine just one of the field sobriety tests, for example. In the walk-and-turn test, there are 18 steps — 9 out, 9 back. Most DUI reports have diagrams for the tests; in the walk-and-turn, there will usually be two arrowed lines, with the officer placing circles for the right foot and triangles for the left foot for each step on each of the two out-and-back lines: 18 circles and triangles. How is this officer able to recall an hour or two later each of 18 steps and exactly where each landed in relation to the line, at what angle and whether heel-to-toe?

And this is just one test. And what about the other tests, and the driving pattern, the symptoms, the defendant’s statements, his conduct, and all of the other details?

Second, how can the officer recall three or four months later in trial everything that happened? He can’t just read from the report: he has to testify to what he knows — that is, to what he independently remembers happened.

But here the law permits him an "out": He can "refresh his recollection" by reading the report after he is asked a question. Then he can testify with a newly "refreshed" memory — in reality, however, this is a game and he is just reciting what he just read in the report. In most trials, the officer has also "refreshed his recollection" just before testifying, and/or does so repeatedly during his testimony.

Problem: The report only contains incriminating facts.

The officer was gathering evidence against the suspect: he only wrote down what he saw and heard that pointed to the defendant’s guilt. He did not bother to record facts which pointed to the defendant’s innocence. He did not, for example, write down that the defendant had no trouble maintaining his balance or that his eyes were not bloodshot. In other words, in trial he is incapable of testifying to anything that indicated the defendant may not have been under the influence of alcohol. No matter how honest the officer is in his testimony, he simply cannot usually testify about things that happened but which are not in the report. And there will be little if anything in that report which will give the other side of the story.

Put another way, the most important witness in the trial is mentally incapable of recalling any evidence which may point to the defendant’s innocence.


Driver Arrested for DUI After Passing All 6 Field Sobriety Tests

Sunday, September 9th, 2012

The purpose of "field sobriety tests" (FSTs) is, of course, to determine if a driver is under the influence of alcohol. Rather than let the officer arrest anyone he wants, the tests supposedly provide objective evidence of impairment from alcohol.     

The usual DUI investigation includes the administration of 3 FSTs to the driver.  Commonly, this consists of the 3 "standardized" FSTs (SFSTs) recommended by the National Highway Traffic Safety Administration: walk-and-turn, one-leg-stand, and horizontal gaze nystagmus (the "eye test").  If some cops aren’t happy with the results, they may administer one or two more tests, hoping that the suspect will finally fail one of them.  

And then again, some cops just ignore the evidence…

Tennessee: Improper to Arrest Someone for Passing DUI Test

Knoxville, TN.  Sept. 5 — A Tennessee motorist who passed six roadside sobriety tests should not have been arrested for driving under the influence of alcohol (DUI), the state Court of Criminal Appeals ruled Friday. The three-judge panel rejected the attempt by prosecutors to overturn a trial court’s finding that David D. Bell should not have been taken into custody on January 12, 2010 after he displayed "excellent" mental acuity after being pulled over by a county sheriff’s deputy.

Bell had made a wrong turn in a construction area, briefly driving on the wrong side of the road — a mistake that a number of other confused drivers had made that day. Sevierville Police Officer Timothy Russell, who had extensive DUI training, arrived on the scene to take over from the deputy. Russell asked Bell to perform a four-finger count; say the alphabet from the letter G to S; identify the year of his fifth, sixth or seventh birthday; perform a one-legged stand while counting to thirty; and do a nine-step walk-and-turn. On the stand, Officer Russell testified that his mental performance was excellent, but that Bell "did not plant and turn as I had instructed him to." So Russell placed Bell under arrest.

Officer Russell admitted he did not follow proper procedure by turning off his flashing blue lights, which is a known source of distraction for the plant-and-turn test. After reviewing dashcam video from that night, the trial judge rejected Officer Russell’s conclusion.

"I honestly think that he did pretty dog-gone good on the field sobriety tests, better than most I’ve seen," Sevier County Circuit Court Judge Rex Henry Ogle observed. "I couldn’t pass them as well as he did."

Judge Ogle found the initial traffic stop legitimate but granted a suppression motion because the arrest went too far. The three-judge appellate panel also reviewed the videotape and sided with the trial judge. The appeals court found ample reason to suspect Bell might have been intoxicated, but the probable cause evaporated after testing.

"We interpret the slightly more colorful comments made by the trial court in its ruling from the bench on the defendant’s suppression motion as a finding, as a factual matter, that the defendant passed all of the field sobriety tests that he was given," Judge John Everett Williams wrote for the three-judge panel. "The state is not required to perform field sobriety tests on an individual prior to arresting him or her for driving under the influence. However, if the state chooses to administer such tests, it may not simply disregard the results if the individual involved performs them successfully. Had the defendant failed any of the field sobriety tests, we have no doubt that the state would have argued that the defendant’s failure provided strong evidence in support of probable cause. We believe that the defendant’s consistent success on a battery of such tests is likewise compelling evidence — in the other direction."

To paraphrase the great Humphrey Bogart film, Treasure of the Sierra Madre…"FSTs? FSTs!  I don’t need no stinkin’ FSTs!"


Some Perspective on a Politically Incorrect Crime

Tuesday, September 4th, 2012

As a former law professor, I would start my criminal law courses with the basics: There are two kinds of laws: malum in se and malum prohibitum.  With the first, a law exists because the prohibited conduct is inherently bad; murder, theft and rape would be obvious examples.  With the second, the conduct is illegal simply because we decide that it should be; gambling, prostitution and possessing drugs come to mind.

The malum in se laws are easy:  Is there a victim?  The malum prohibitum are more difficult: society must ask itself what kinds of conduct that does not directly involve harm to another should nevertheless be punished for whatever reason.  Often, the types of conduct included in this category are based upon moral judgments.

Where does drunk driving fall?  DUI carries increasingly severe criminal penalties: jail sentences, extensive license suspensions, stiff fines, alcohol education programs, ignition interlock devices, probation, and often more.  Is it inherently bad, or is it bad because we’ve decided to punish it — possibly for unrecognized moral reasons? 

There is no victim in the vast majority of DUI cases.  However, the severity of the punishment would seem to indicate this to be a malum in se offense, presumably on the grounds that there is a possibility that someone could be injured or killed. According to MADD’s own statistics, there were 159 million alcohol-impaired trips in one recent year, with 11,773 alcohol-related fatalities. So it is dangerous, although the likelihood of a death is very small:  about 1 in every 13,500 DUI incidents, according to MADD’s figures. One must add to this, of course, the likelihood of non-fatal injury.

So….Do we severely punish drunk driving solely because it is dangerous to human life — or is it at least partly because of a moral judgment about alcohol?

Before we answer that, let’s apply the same analysis to distracted driving — driving while talking on a cell phone or while texting (DWT), for example.  In many states it is perfectly legal to engage in such behavior; in others, it carries a minor fine with no other consequences (in California, for example, there is a small fine, there is no criminal record – and the police rarely enforce the law).

Yet….All of the recent studies have come to the same conclusion:  distracted driving is at least as dangerous to human life as drunk driving.  See my earlier posts, Alcohol vs Cell Phone: Which Is More Dangerous?Driving Under the Influence of…a Cell PhoneMost Dangerous: Drunk, Drowsy or Distracted?The Difference Between DUI and DWT Is…?Inebriated or Texting – Which Is More Dangerous When Driving?Feds Crack Down on DUI – and Cover Up DWT,

So….If the risk of harm is similar, why the huge disparity in the laws?  Why is one morally condemned and harshly punished — while the other receives a slap on the hand, if that?

If I haven’t made it clear, my point is not that drunk driving should be legal:  it is dangerous and should be punished.  But the punishment should be based upon the degree of danger — not upon a prohibitionist condemnation of alcohol.  And equivalent punishments should be meted out for distracted driving.