Archive for January, 2014

DUI + Death = Manslaughter….or Murder?

Friday, January 31st, 2014

I've mentioned in past posts the growing trend among prosecutors around the country to elevate drunk driving fatality cases from the crime of manslaughter to the crime of murder, usually resulting in life imprisonment.  See for example, DUI Murder?How to Convict a Drunk Driver of Murder and The Death Penalty for DUI?

A typical example concerns a DUI murder case in Orange County, California, reported in an Associated Press news story entitled "Murder Charges Increasing in Fatal DUI Cases" (article offline).  In the trial, the defendant was only charged with murder, not with manslaughter.  After extensive deliberations, the jury returned a verdict of guilty.

During the trial, I granted two interviews with the reporter.  As so often happens, however, the reporter did not understand the law and I was misquoted.  The two points I was trying to make to the reporter in objecting to a murder charge rather than one for manslaughter are important to understand:


Murder vs Manslaughter and the Concept of "Malice"

The legislature of California passed a law specifically for the situation where a death results from drunk driving:  vehicular manslaughter.  It is a "general intent" crime, that is, the driver does not have to intend to kill the victim to be guilty of manslaughter.  

They also passed a law for murder:  "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought".  The statute made the killing first degree murder if it was premeditated, and added that "All other kinds of murder are of the second degree".  Thus, an intentional killing without premeditation is second degree murder….as is any killing that is done with "malice"  

So….What is "malice"?  Much like the legal definition of "obscenity", no one seems to know.  The California statutes fumble with the definition, settling on:  "…when the circumstances attending the killing show an abandoned and malignant heart".  Ok, but how do you define an "abandoned heart"?  How do you prove or disprove a "malignant heart"?  What is a jury supposed to do?

A few years ago, a clever prosecutor in California charged a defendant in a DUI fatality case with murder rather than manslaughter.  He believed that he could get a jury to buy the idea that driving under the influence of alcohol (or driving over .08%) satisfied the vague concept of  "malice".  He was right, and the practice began to spread.  This was accelerated by the California Supreme Court's decision in People v Watson, where the Court said that a drunk driver could have the required "malice"…whatever that is.  

Since then, there have been a number of appellate decisions trying to establish what is required to prove malice in a DUI case.  The result:  it is malice if the driver knew that drunk driving could be dangerous.

Duh…Don't we all know that?  

Clearly, these are vague terms which can mean what you choose them to mean.  As the Mad Hatter said to Alice in 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.”


The simple fact is that there is a very clear and concise statute which was intended for drunk driving causing death: manslaughter.  There is no mention of DUI in the murder statute, nor was it ever intended for that situation.


Prosecutorial Tactics in Bypassing the Manslaughter Law

The prosecutor in the Orange County case used an increasingly common but clever tactic: don't charge the defendant with murder and manslaughter — just with murder.  If both are charged, the jury is likely to understand that (1) the manslaughter statute is clear and fits the facts, and (2) "malice" is too vague to send a man to prison for life.

But isn't that a big gamble by the prosecutor?  If the jury doesn't buy the murder theory, the defendant goes free.

Exactly!  And the prosecutor know this: he is putting the jury in the position of either convicting the defendant of murder…or letting him walk out of court unpunished for a deadly crime.  He knows the jury does not want to let a drunk driver who killed a man get away with it, even if they may be uneasy with "malice".  And they are never told that there is a manslaughter law intended for this kind of case.  


Many years ago when I was a deputy district attorney in Los Angeles, there was a cynical saying in the office:  "Anyone can convict a guilty man; it takes real skill to convict an innocent one"….

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High Breath Alcohol?…or Just Pumping Gasoline?

Monday, January 27th, 2014

Folks who have read my post, "Why Breathalyzers Don’t Measure Alcohol", seem quite surprised to find out these DUI machines are not as reliable as MADD and law enforcement agencies would have us believe. In fact, the manufacturers of some of these machines have refused in the past to even warrant them to do what they’re supposed to: accurately measure blood-alcohol levels (see my earlier post, "Breathalyzers: Why Aren’t They Warranted to Measure Alcohol?")

So how reliable are these "breathalyzers" that determine a person’s guilt or innocence in DUI cases? And just what do they measure?

Well, thousands of different chemical compounds, according to scientists. Gasoline for one. Consider an article appearing on the front page of the Spokane Spokesman-Review in which a person sitting in jail awaiting trial for DUI claimed that he had nothing to drink. He said he had run out of gas and had been siphoning gasoline from a container into his tank before being stopped by the officer and arrested. In siphoning, he had sucked on the hose to get it started and accidentally swallowed a small amount of the gasoline. He claimed that this must have caused the later high breathalyzer reading. The individual finally talked the sheriff into a demonstration to prove his story.

Taken from his cell after one week of incarceration, he swallowed a cup of unleaded gasoline and then blew into the breath machine — in this case, an Intoximeter 3000. The results? After 5 minutes, the reading was .00%…..after 10 minutes, .04%……after 20 minutes, the Intoximeter registered .31%…..and after one hour, the reading was .28%. Even after three hours, the person still blew a .24% on the machine — three times the legal limit! (A quick call from the sheriff to a local gasoline distributor confirmed that gasoline contains no alcohol.)

This was not a freak occurrence. The results have been scientifically verified in a study conducted by CMI, Inc., the manufacturer of a competing breath machine, the Intoxilyzer 5000, and reported in 8(3) Drinking/Driving Law Letter 6. The CMI technicians mixed a simulator solution of 800 micrograms of gasoline with 500 milliliters of distilled water, then introduced it into their machine. The solution produced readings of .619%, .631% and .635% — or about eight times the legal limit for "alcohol" levels.

You don’t have to drink gasoline to get a reading on the breathalyzer. Breathing the fumes will do it. Or even absorbing fumes through the skin.  Like at a gasoline pump.
 

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“Selective Memory” in the DUI Officer’s Testimony

Wednesday, January 22nd, 2014

How does a police officer testifying in a drunk driving trial recall every detail of a DUI investigation 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 I told him to? How many steps out? How did he turn? How many steps back? Which, if any, of the 18 steps were off the line? Where did they land? Which, if any, were not heel-to-toe? Was he using his arms for balance? Did he say anything during the test?

In the "horizontal gaze nystagmus" ("Follow my pen with your eyes without moving your head") test, was there "smooth pursuit" of the right eyeball? What did it look like? How many times was it given? Did "onset" of nystagmus occur before 45 degrees? At what degree? Was I able to see the white of the eye at the extreme range of the eye? Was there "distinct nystagmus" at this extreme? And what about all these 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 in dozens of other investigations conducted by the officer before and after the arrest in question. 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. 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 "gun hand" 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 driving pattern, the symptoms, the defendant’s statements, his conduct, and all of the other details?

Second, how can the officer recall in trial five or six months later 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, theoretically, he can testify with a newly "refreshed" memory of the events — in reality, however, he is testifying to what he wrote 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 "refresh his memory" 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.
 

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Give a Breath Sample — or Be Strapped Down and Jabbed With Needles

Sunday, January 19th, 2014

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 ForceForced 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 strap a suspect down and "poke" him with a needle actually "encourages" him to submit to a breath test?  Welcome to MADD's "War on Drunk Driving".   
 

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“Sleep Driving”

Monday, January 13th, 2014

DUI defense attorneys across the country are encountering clients arrested for driving under the influence of drugs — but who do not recall driving.  The common thread appears to be that the last thing they recall is taking prescription sedatives of some type and falling asleep.  There have been reports of sleep walking and "sleep driving".  And, of course, police and prosecutors have scoffed at this latest "defense lawyer trick"…just as they scoffed at mouth alcohol problems, chemical interferents on the breath and radio frequency interference – before breathalyzer manufacturers quietly began installing mouth alcohol detectors, interferent detectors and RFI detectors on their machines) .

Does "sleep driving" exist?  Well, consider the following press release from the U.S. Food and Drug Administration:


FDA Requests Label Change for All 
Sleep Disorder Drug Products

For immediate release. 

The U.S. Food and Drug Administration (FDA) has requested that all manufacturers of sedative-hypnotic drug products, a class of drugs used to induce and/or maintain sleep, strengthen their product labeling to include stronger language concerning potential risks. These risks include severe allergic reactions and complex sleep-related behaviors, which may include sleep-driving. Sleep driving is defined as driving while not fully awake after ingestion of a sedative-hypnotic product, with no memory of the event.


What is the legal significance of all of this?  Well, there are two components to a crime: the guilty mind (mens rea) and the guilty act (actus reus).  As for the mental element, unlike most crimes drunk driving is a strict liability offense: it is categorized as a general intent offense, and the lack of specific intent to drink too much and drive is not a defense.  But an underlying requirement of all offenses is that there be a volitional physical act.  In other words, although there does not need to be an intent to do a specific act, there must be conscious control of that act.  An epileptic, for example, would not be criminally charged with assault if the incident occurred during a seizure: even if there had been a preexisting intent, there was no conscious control.

So….If you take a prescription such as Ambien or Restoril to help you sleep, you may well wake up in a jail cell falsely charged with DUI.  (For a list of the 13drugs which the FDA has found may cause "sleep driving", see the FDA's "Sleep Disorder Drug Information".)
 

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