Archive for August, 2013

Sleeping Under the Influence?

Thursday, August 29th, 2013

I received a number of queries concerning my previous post, "Parking Under the Influence". And the answer is….Yes, you can be arrested in many states for "sleeping under the influence" in your parked car — on the shaky theory that you were probably driving some time earlier and were probably intoxicated at the time.

What was unusual about the Alabama story was that those asleep in their cars had admittedly never driven — but were arrested because they might. The response of MADD and government has been that this helps prevent DUI-related fatalities. As the Alabama sheriff said, "What if they woke up at 2:00am…and decided to drive?" What is frightening, of course, are the obvious ramifications: Where do we stop once we decide to punish folks for what they might do?

In any event, despite the rhetoric about preventing traffic fatalities, the real concern seems increasingly focused on punishment rather than prevention:


Question: If an individual begins driving home from a restaurant and realizes he has had too much to drink, what do we want him to do — if we are truly interested in preventing an accident?

Answer: We would like to see that person pull over and sleep it off.

Question: How do we encourage that conduct?

Answer: We don’t punish him for doing it.

Question: Then why do police continue to arrest and the courts continue to convict these folks for drunk driving?


There are two issues involved. First, the legal issue: Although under the influence, was the individual driving?  The various states have slightly different definitions of what constitutes "driving", but they usually involve "operating" or being "in physical control" of a motor vehicle.

Second, the public policy issue: Shouldn’t we encourage conduct that seeks to avoid danger to the public and/or commission of a crime?

Looking at the legal issue first, how can a person be "operating" or "in physical control" of a vehicle if he is asleep? Well, in their stampede to "get tough" on drunk drivers, many states have stretched their definitions of "driving" to the breaking point — and beyond. In State v. Lawrence, 849 S.W.2d 761, for example, the Tennessee Supreme Court held that a defendant who was asleep on the driver’s side of his parked vehicle with the keys in his pants pocket was in "physical control" within the meaning of the DUI statute — and thus guilty of drunk driving. Similarly, in State v. Peterson, 769 P.2d 1221, the Montana Supreme Court held that the defendant was in "actual physical control" of the vehicle when he was found parked off the roadway, asleep in the driver’s seat with the keys in his pocket. There are, fortunately, other courts which have held that this does not constitute driving. See, for example, State v. Bugger, 483 P.2d 404 (Utah).

Most courts do not address the second issue: legalities aside, as a public policy matter should such conduct be punished? This is possibly because judges may feel that is a matter for the legislature to address. But consider the holding of an Arizona court in reversing a DUI conviction:


The interpretation we place on the legislature’s imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway. Arizona v. Zavala, 666 P.2d 456.


Makes sense. Of course, angering MADD is not a good way to get reelected to the bench or the legislature.
 

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Parking Under the Influence?

Sunday, August 25th, 2013

So just how far are we going with all of this DUI craziness?  Well, consider the following news story from WAFF-TV NEWS (Huntsville, Alabama):


DRUNKS ARRESTED FOR PARKING UNDER THE INFLUENCE

Next time you go partying, you may want to think before you drink. That advice from Morgan County Sheriff Greg Bartlett.

“All you got to do is prove they are intoxicated. Most of the time it’s obvious if they are passed out in a vehicle,” said Bartlett.

Some drunk drivers crawl behind the wheel, taking their chances on the highway. The ones caught driving under the influence are given a breath test, then handcuffed and taken to jail. But did you know you don’t have to be driving drunk to get a DUI?

“It’s not for them to decide if they are too drunk to drive. It’s for us to decide,” said Bartlett.

Here’s how the state’s DUI law works. You are out drinking. You decide to leave the bar and get into your car. Even if your car is parked and the keys are in your pocket, an officer can charge you with DUI. The same is true sitting in your own driveway.

“What if they woke up at 2 a.m. and decided to look around. They didn’t see anybody and decided to drive then they still may be under the influence and still hurt somebody,” Bartlett explains….

While not everyone agrees with the state’s law, Bartlett says its better to be safe than sorry.

“We know they can start driving at anytime. You can’t sit there and watch them. It gives the officer a chance to get them off the road.”


Arrested for going to sleep — because you might wake up and decide to drive?  Why not arrest anyone who buys a gun — because they might decide to shoot someone?  Think about that….
 

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Life in Prison…For Drunk Driving

Wednesday, August 21st, 2013

The insanity continues…


Waco Man Gets Life Sentence for Driving Drunk

Waco, TX.  June 10 — A man has been sentenced to life in prison after being convicted of drunken driving — his ninth such charge since 1984.

Russell Don Sneed faced a minimum 25-year penalty when McLennan County jurors sentenced him in Waco on Thursday, a day after his conviction. 

Defense attorney Melanie Walker had told jurors no one was seriously injured in last year’s rollover accident and her client suffers from alcoholism.

However, prosecutor Lauren McLeod said alcoholism is no excuse for criminal behavior.

The Waco Tribune-Herald reports that the 52-year-old Sneed and his wife both testified that she was driving. Karroll Sneed told jurors she fled over fears of being jailed on misdemeanor warrants. Sneed said he took the blame out of concern for his wife, who had recently suffered a stroke.


Life in prison for a DUI?  Rape gets 15 years, 2nd degree murder 25.  Just an aberration, right?  Wrong.  See, for example, Third DUI = Life in Prison (Mississippi, alcoholic with 2 priors), Another Life Sentence for Drunk Driving (Texas, alcoholic with 9 priors), 99 Years for Drunk Driving (Texas, alcoholic with 7 priors). 

One of the premier DUI attorneys in the country, Troy McKinney of Houston, made an Open Records Act demand on the Texas Department of Criminal Justice, asking:  How many Texans are serving sentences of 60 years to life in prison for drunk driving? Not for drunk driving resulting in injury or death — just for drunk driving (or driving over .08%). The response from the Department:

21 to 25 years    125 
26 to 30 years     39 
31 to 40 years     55 
41 to 59 years     16

And finally:

60 to 98 years     23 
99 years 6 Life     13

Repeat: These are sentences just for drunk driving or driving over .08% — not for DWI causing death or serious injury. To trigger the longer sentences, the DWI was at least the offender’s fourth offense.

It would be a fairly safe assumption that these prisoners are alcoholics. In other words, life in prison for having a genetically-predisposed disease and being unable to control it…..without help.

So, what if they got help? What does it cost to keep a citizen in prison for the rest of his life? For even one year? And what does it cost to offer that person rehabilitative therapy? Even, perhaps, to involuntarily commit him to a facility for treatment of the disease?

Justice and humanity aside, do the math….

For a more effective, inexpensive and humane approach to dealing with drunk drivers who are suffering from alcoholism, see Time for a Change.
 
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Truth, Justice and the New DUI: “Driving With Alcohol on Your Breath”

Sunday, August 18th, 2013

As any experienced criminal attorney knows, truth, justice and fairness can be rare commodities in our courts when dealing with a drunk driving offense. This has become such a common phenomena that it has acquired a label: "The DUI exception to the Constitution". When it comes to cases involving driving under the influence of alcohol or drugs, there seems to be a distinct bias in favor of "streamlining" procedures and facilitating convictions.

Cynics might suggest that this may have something to do with political considerations — with the desire of some judges to get reelected. We’ll talk about that in a moment….. In the meantime, let’s take a look at an example of what kind of thinking goes on in the judicial mind in a DUI case. In fact, let’s go to the highest court of the most populated state in the country: the Supreme Court of California.

In People v. Bransford, the Court was confronted with a defendant who was challenging his .08% DUI conviction on the grounds that he was not permitted to offer scientific evidence to the jury. Specifically, he was not permitted to offer the testimony of recognized experts that the breath machine’s computer was programmed to assume that there were 2100 parts of alcohol in his blood for every 1 part it measured in his breath. He was also prevented by the trial judge from offering further evidence that this 2100:1 ratio was only an average — and that the actual ratio varied widely from person to person, and within one person from moment to moment. (If, for example, a suspect’s ratio had been 1300:1 at the time he blew a .10% on the machine, his true blood-alcohol would have actually been .06% — that is, he would have been innocent.)

The Supreme Court affirmed the conviction, ruling that such scientific facts are irrelevant: the law was written in a way that concerned the amount of alcohol in the blood "as measured on the breath". In a display of either twisted logic or ignorance of the scientific facts involved, the Court simply said that the crime consisted of the amount of alcohol in the blood — but only as measured on the breath. In other words, although the crime is having .08% alcohol in the blood, you can’t offer evidence about the amount of alcohol actually in the blood! An amazing decision.

More interesting, perhaps, is language in the opinion — an opinion which gives us a window into the justices’ minds. In what must have been a complete failure to appreciate the significance of what they were writing, the Court justified its ruling in a rather frank — and incredible — admission of its hidden agenda:


It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges." People v. Bransford, 8 Cal.4th 894 (1994).


In other words, barring an accused from defending himself with scientific truth serves justice by making it easier to get convictions! 

Are all judges oblivious to the truth? Not entirely. One judge, Justice Joyce Kennard, dissented from the majority opinion. She wrote in a separate opinion: "The majority…has on its own created the new crime of driving with alcohol in one’s breath."

Exactly.
 

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Trial by Machine

Sunday, August 11th, 2013

All states now have two drunk driving laws: (1) driving under the influence of alcohol (aka “DUI”, with local variations, such as “driving while intoxicated” or “DWI”), and (2) the so-called per se law of driving with .08% or higher blood-alcohol concentration (BAC). Unless you refuse to take a chemical test, you will be charged and prosecuted for both offenses — and can be convicted of both.

The various models of breath machines (commonly — and inaccurately — referred to as “breathalyzers”) used to obtain the BAC are, obviously, critical to the drunk driving case. As for the per se offense, the only evidence of the crime is the machine: if the machine says .08% or higher and the jury believes it, the defendant is guilty.  In effect, if you are accused of driving with .08% BAC, you will face "trial by machine" — and you will not be able to confront your accuser.

It gets worse….

Even as to the DUI charge, the readings will be considered presumptive: that is, if the machine's reading is .08% or higher, the jury will be instructed by the judge that the defendant is presumed to be guilty — and he must be found guilty unless he can prove his innocence.  See Whatever Happened to the Presumption of Innocence?.

These machines are all-important: they determine guilt or innocence. But despite the manufacturers refusing court orders to disclose the software that runs the machines (see What Are Breathalyzer Manufacturers Hiding?), they continue to assure us that the things are “state of the art”.  So how accurate are they?

Well, as I’ve written in the past, not very.  Just a few examples:

Breathalyzers — and Why They Don’t Work 
Close Enough for Government Work 
The Mouth Alcohol Problem 
Breathalyzers: Why Aren’t They Warranted to Measure Alcohol? 
Driving Under the Influence of….Bread? 
Warning: Breathalyzer in Use 
Breath Fresheners and Breathalyzers 
Diabetes and the Counterfeit DUI 
Why Breathalyzers Don’t Measure Alcohol 
Can Body Temperature Affect Breathalyzer Results? 
The Effect of Anemia of Breath Tests 
GERD, Acid Reflux and False Breathalyzer Results 
Driving Under the Influence of….Gasoline? 
Do Breathalyzers Discriminate Against Women? 
Breathalyzer Inaccuracy: Testing During the Absorptive State 
Breathalyzer Inaccuracy: Post-Absorptive 
Breathalyzer Inaccuracy….It Gets Worse 
Warning: Smoking Can be Hazardous to Breathalyzer Results 
How to Fool the Breathalyzer 
Breathalyzer Manufacturers Won’t Tell How They Work

State of the art?  Far from it, yet thousands of American citizens — many of them innocent — continue to be accused and convicted by these machines…..
 

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