Archive for April, 2013

Double Jeopardy and Multiple Punishment in DUI Cases

Sunday, April 28th, 2013

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 blood-alcohol of .08%, is administered in most states by its department of motor vehicles, and (2) the criminal prosecution for the two separate offenses of driving under the influence of alcohol (DUI, DWI or OUI) and driving with .08%,  which takes place in the courts.

In other words, even though he only committed the act of driving once, the individual is being prosecuted in court for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses (although he can only be punished for one). How is this possible?

It gets worse…

The driver has already been punished by one state agency (the Department of Motor Vehicles) for driving over .08% by having his license suspended. If he is prosecuted and convicted by another agency in the state's criminal court of driving over .08% (and/or driving under the influence), he will be punished once again. The sentence may involve jail, fines, DUI schools, community work, probation, ignition interlock devices — and a restricted, suspended or revoked license.

How many times can the state prosecute 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 "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 usually 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. 


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 license suspension?

This one caused the judges a bit more trouble. This wasn't a case where the person was committing two arguably different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC. But there had to be some way to get around the Constitution…

The courts could not agree. Some said that there was no double jeopardy or double punishment 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 1989 U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435) 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, insurance companies and pretty much everyone else who did not take the Constitution too seriously. But rescue arrived  from a later, 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 long-standing 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'ss not really double jeopardy or multiple punishment. It just looks an awful lot like it.

From Lewis Carroll's 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".


Can You Be Charged with Attempting to Drive Drunk?

Tuesday, April 16th, 2013

Let’s say you’ve had too much to drink, and you get into your car, put the key into the ignition and….the car won’t start:  the battery is dead.  About that time, an officer arrives and asks you to step out of the car for some field sobriety tests….

Is it possible to be convicted of attempting to drive under the influence?

The courts are not in agreement on whether there is such an offense as attempted drunk driving.  In Strong v. State, 87 S.W.3d 206, for example, a Texas court held there is not.  In People v. Garcia, 262 Cal. Rptr. 915, however, a California court said there was – but said also that it was "not unmindful that there might be some troublesome questions which will have to be resolved in later cases."

Troublesome questions?  The court didn’t explain that cryptic comment, but one that occurs to me is that  attempted DUI becomes a specific intent crime.  So what, you ask? 

Well, there are two kinds of offenses: those requiring only a general intent, and those requiring a specific intent.  Burglary, for example, is a specific intent crime: it requires entry with the intent to commit theft or a felony; without that intent, it is just a trespass.  DUI is a general intent crime: the prosecutor need only prove the act of driving under the influence – not the intent to do it. 

You can, of course, be convicted of attempting to commit a criminal offense.  But it follows that to attempt it you must intend to commit the offense: attempt requires a specific intent to commit the crime (along with steps toward its commission).  Thus, attempted DUI would become a specific intent crime.

So, while intoxication is not defense where there is only a general intent required, it can be a defense where specific intent must be proven:  intoxication can prevent the person from being able to knowingly and intelligently form the intent to accomplish the criminal act.

In other words, we may have a Catch-22:  If a person is mentally and physically too impaired to drive, doesn’t that fact tend to negate the specific intent required for an attempt to drive intoxicated

A "troublesome question"….


“Immaculate Intoxication”

Saturday, April 13th, 2013

Can alcohol be created by the human body itself — without any drinking? Apparently so.

In an interesting scientific article, two physicians at Union Memorial Hospital in Baltimore reported that they detected the odor of beer in three of their patients. This was in an isolated hospital setting; there was no access to alcoholic beverages. The doctors had urine samples taken and analyzed by gas chromatography. Result? All three showed the presence of alcohol in their systems. Two of these were then tested for actual blood-alcohol concentration (BAC). One showed a BAC of .043%. The other was .121% — or 1 1/2 times the legal limit for DUI!

"The presence of alcohol in human specimens containing glucose and yeast should come as no surprise," the two physicians wrote. "Several have made this observation. Under normal circumstances trace amounts of alcohol may be found in the blood; the alcohol is then channeled into an energy pathway by hepatic alcohol dehydrogenase…

"The Japanese report the "auto brewery syndrome" in which they have seen middle aged patients with bowel abnormalities, most often after surgery, who have yeast overgrowth, usually candida, in the G.I. tract and who ferment ingested carbohydrates, producing enough alcohol to result in drunkeness." Mullholland and Townsend, "Bladder Beer – A New Clinical Observation", 95 Transactions of the American Clinical Climatological Association 34 (1983).

In other words, the body is manufacturing alcohol by itself — in some cases, enough to become legally intoxicated. This has been confirmed by other studies. Swedish researchers, for example, have found that:

"Increasing evidence has emerged to show that endogenous ethanol does exist, the the concentrations seen have large inter-individual variations. Our results show a markedly skewed distribution of values…The reason for the wide inter-individual variation in healthy abstaining individuals is hard to explain".  Jones et al., "Determination of Endogenous Ethanol in Blood and Breath By Gas Chromatography, 18 Pharmacology, Biochemistry and Behavior 267 (1983).

How many folks, with "immaculately conceived" alcohol in their systems, have been arrested and convicted for DUI? These people were innocent, right?

Wrong. In the rush to convict drunk drivers (and with federal pushing), all states have long since passed so-called "per se" laws: driving with a BAC of .08% or more. Neither intent, negligence or even knowledge is required. The crime consists of simply having the alcohol in your body.

Even if you’ve had nothing to drink.


Field Sobriety Tests Are Designed to be Failed

Wednesday, April 10th, 2013

Roadside field sobriety tests ("FSTs") are commonly used by police officers in DUI investigations to determine whether a driver is under the influence of alcohol. Typically, they consist of a battery of 3-5 excercises, such as heel-to-toe, one-leg stand, "nystagmus" ("follow the pencil with your eyes"), finger-to-nose, alphabet recitation, "Rohmberg" (eyes-closed, modified position-of-attention), etc. The officer will subjectively decide whether the individual "failed".

These DUI tests have an aura of scientific credibility to juries. Unfortunately, however, they have no real basis in science and are almost useless in a drunk driving case.

First, as any traffic officer or DUI attorney knows, the decision to arrest is made at the driver’s window; the FSTs given supposedly to determine probable cause to arrest are actually for the purpose of providing "evidence" to support the officer's opinion of intoxication.

Second, since the officer has already made up his mind, his subjective decision as to whether a person passed or failed field sobriety tests is suspect: as with any human, he will "see" what he expects to see.

Third, the conditions under which the field sboriety tests are taken almost guarantee failure: usually late at night, possibly cold, along a graveled or sloped roadside, with bright headlights from passing cars (setting up wind waves), the officer’s flashlight and patrol car’s strobe and headlights providing the lighting — and given to a person who is nervous, frightened and completely unfamiliar with the tests.

Fourth, field sobriety tests are irrelevant and, in fact, designed for failure. What scientific basis exists to validate FSTs in a DUI investigation? Only a "study" by a private business firm, the "Southern California Research Institute", with a grant from the federal government to find a "standardized" battery of usable DUI tests.

To earn their money, SCRI came up with three tests which, they said, were not foolproof but were much better than all of the other FSTs that were being used. These three tests were heel-to-toe, one-leg-stand and nystagmus.  Yet after some study even this company concluded that, using the three standardized tests, 47 percent of the subjects tested would have been arrested for DUI — even though they were under the then-.10% limit.  Burns and Moskowitz, Psychophysical Tests for DWI Arrest: Final Report, DOT-HS-802-424, NHTSA, 1977.

Unhappy with this, the federal government sent the company back to the drawing board and, in 1981 the firm came up with some better figures: only 32 percent of those who "failed" the tests were actually innocent. (Tharp, Burns and Moskowitz, Development and Field Sobriety Test of Psychophysical Tests for DWI Arrests: Final Report, DOT-HS-805-864, NHTSA, 1981.) Thus, SCRI was paid to put their stamp of approval on a set of field sobriety tests.

But what has been the reaction of the (non-profit) scientific community? In 1991, Dr. Spurgeon Cole of Clemson University conducted a study on the accuracy of FSTs. His staff videotaped individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink and drive". Unknown to the officers, the blood-alcohol concentration of each of the 21 DUI subjects was .00% — stone sober.

The results: the officers gave their opinion that 46% of these innocent people were too drunk to drive! In other words, the field sobriety tests were hardly more accurate at detecting intoxication than flipping a coin. Cole and Nowaczyk, "Field Sobriety Tests: Are they Designed for Failure?", 79 Perceptual and Motor Skills Journal 99 (1994).


When is a Refusal Not a Refusal?

Thursday, April 4th, 2013

When a DUI suspect is arrested, he is asked to submit to a blood, breath or urine test. If he refuses, his license will be suspended — for a considerably longer time than if a test had shown .08% or higher.  In California, for example, the suspension is for one year — compared to 4 months for a non-refusal.  In addition, many states impose an increased penalty in the criminal phase, usually a mandatory jail sentence; some states make refusal a separate crime independent of the underlying DUI.

Finally, the fact of refusing can be used as evidence of “consciousness of guilt” in trial — a practice which has been held by the U.S. Supreme Court not to be a violation of the Fifth Amendment right against self-incrimination. (See my earlier post, “Believing You Have Constitutional Rights in a DUI Case Can be Dangerous”.)

The reason for harsher treatment is, of course, to encourage suspects to provide evidence considerably more reliable than an officer’s opinion: it is the evidence that is desired, more than a desire to punish for not cooperating. It would follow, of course, that if a suspect changes his mind and agrees to provide a blood, breath or urine sample — what is referred to as “curing” the refusal — there would be no penalties.

Wrong — in most states. A summary of the situation was presented by a New Jersey appellate court where the defendant had initially refused to take a breath test until he could speak with his attorney:

We have been referred to various out-of-state decisions in the briefs of counsel. The majority rule in those cases which have an implied consent statute like ours….is that the initial refusal is final and hence that there is no right to “cure” an initial refusal… The cases expressing the majority view essentially turn on the question of the unreasonableness of having police officers turn aside from other duties to administer a test after the driver has initially refused. The cases allowing a “cure” generally do so on the basis that a change of mind after a relatively short delay does not prejudice the presentation of the state’s evidence nor defeat the purpose of the implied consent statute. State v. Corrado, 446 A.2d 1229.

The New Jersey court decided to follow the majority approach. A Florida appellate court, however, chose the opposite view:

The subsequent consent to take the test cures the first refusal when the request to take the first test is made within a reasonable time after the the prior first refusal…. By approving a flexible rule we believe that this important evidence will be more frequently available and therefore the prophylactic purpose of the implied consent law will be achieved. Larmer v. State, 522 So.2d 941.

The disagreement, of course, reflects two very different underlying philosophies: Which is more important — obtaining key evidence or punishing non-cooperation? The minority recognizes that actual evidence of blood-alcohol concentration is crucial; the majority prefers to focus on deterring future suspects from refusing. Which is the “correct” view?

As usual, California has adopted its own approach: If a suspect refuses, he can be physically restrained and a blood sample forcefully taken from him — and he will still be charged with a refusal.  Many other states are following this approach.