It’s long been a common practice for cops to cover-up for other cops, of course, particularly where drunk driving is involved.  And I’ve posted repeatedly in the past about this "Blue Code".  See, for example, The Unwritten Code, The Blue Code: Cover-Up of a Cover-Up, The DUI Double Standard and Guarding the Guardians. 

But the Code continues….

SAPD Investigating 7 Officers After Alleged Drunk Driving Accident, Attempted Cover-Up  

San Antonio, TX.  Feb. 6 – The San Antonio Police department has launched an investigation into seven of its officers after an apparent alcohol-related crash and a possible cover up, San Antonio Police Chief Bill McManus said.

Chief McManus said the off-duty sergeant was apparently driving under the influence, headed north in an unmarked patrol car on Highway 281 and crashed into a barrier near Josephine at about 5:30 Thursday morning. The sergeant wandered away from the vehicle to a building several blocks away, where security guards called police.

McManus said a "number of improprieties" were found involving six responding officers during the initial investigation, including an attempt to take the sergeant home and remove evidence from the car.

The sergeant is a 20 year veteran of the force who had been working the night before the accident and some of his officials responded, McManus said. The sergeant’s blood was drawn "within hours" of the accident but he was not arrested.

"I don’t take this lightly. I take this very, very seriously and I think our actions have proven it," said McManus.

McManus would not identify any of the officers involved and he would not release the results of the blood or urine test. He also wouldn’t detail what lead up to the accident or where the sergeant was headed.

The responding lieutenant, three sergeants and two officers are being investigated, he said. The sergeant driving the vehicle is on administrative leave and the six others on administrative duty. McManus said the criminal and internal investigations are ongoing.

An officer at the scene who reported the incident is not facing any charges.

Maybe there’s hope.  One of the eight cops decided not to dishonor the oath he took when he put on a badge.
 

In a well-reasoned and fascinating article appearing in today’s issue of The New Yorker entitled "The Caging of America", author Adam Gopnick analyzes the reasons behind this growing phenomenon.  In doing so, he comments upon an almost uniquely American development:
 

New York, NY.  Jan.30 — …(A) growing number of American prisons are now contracted out as for-profit businesses to for-profit companies. The companies are paid by the state, and their profit depends on spending as little as possible on the prisoners and the prisons. It’s hard to imagine any greater disconnect between public good and private profit: the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible. No more chilling document exists in recent American life than the 2005 annual report of the biggest of these firms, the Corrections Corporation of America. Here the company (which spends millions lobbying legislators) is obliged to caution its investors about the risk that somehow, somewhere, someone might turn off the spigot of convicted men:

Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities. . . . The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.

It is, of course, the "American Way" for big corporations to spend millions through lobbyists to influence legislation and policies which contribute to increased profits.  Are we that far from our fellow citizens being incarcerated because of laws that are designed to improve the "business" of prisons — i.e., increase the supply of prisoners?  

Is it already happening?

(Thanks to attorney Deandra Grant of Richardson, Texas.)
 

Man Spends 2 Years in Solitary After DWI Arrest

Dona Ana County, NM.  Jan. 25 – A New Mexico man who said he was forced to pull his own tooth while in solitary confinement because he was denied access to a dentist has been awarded $22 million due to inhumane treatment by New Mexico’s Dona Ana County Jail.

Stephen Slevin was arrested in August of 2005 for driving while intoxicated, then thrown in jail for two years. He was in solitary at Dona Ana County Jail for his entire sentence and basically forgotten about and never given a trial, he told NBC station KOB.com Tuesday night.

"[Jail guards were] walking by me every day, watching me deteriorate," Slevin said. "Day after day after day, they did nothing, nothing at all, to get me any help."

Slevin’s medical problems extended beyond his dental issues, he said. His toenails started curling around his foot because they were so long, he told KOB.com. And his countless requests to see a doctor for depression medication were ignored, he said.

He said his lawsuit "has never been about the money. I’ve always wanted this to make a statement."

The $22 million, awarded by a federal jury Tuesday, is one of the largest prisoner civil rights settlements in U.S. history, according to KOB.com.

"I wanted people to know that there are people at The Dona Ana County Jail that are doing things like this to people and getting away with it," said Slevin, who now suffers from PTSD and believes he will have to take medication for life as a result. "Why they did what they did, I have no idea."

The mistreatment started from the moment his client was arrested, Slevin’s attorney, Matt Coyte, told msnbc.com.

"He was driving through New Mexico and arrested for a DWI, and he allegedly was in a stolen vehicle. Well, it was a car he had borrowed from a friend; a friend had given him a car to drive across the country," Coyte said.

Slevin was depressed at the time, Coyte explained, and wanted to get out of New Mexico. Instead, he found himself in jail.

"When he gets put in the jail, they think he’s suicidal, and they put him in a padded cell for three days, but never give him any treatment."

Nor did they give him a trial, Coyte said. Slevin said he never saw a judge during his time in confinement.

After three days in a padded cell, jail guards transferred Slevin into solitary confinement without explanation.  "Their policy is to then just put them in solitary" if they appear to have mental health issues, Coyte told msnbc.com.

Dona Ana County officials were tight-lipped about the case, refusing to answer questions about whether any jail employees were reprimanded or fired over Slevin’s treatment…

While in solitary confinement, a prisoner is entitled to one hour per day out of the cell, but often times, Slevin wasn’t even granted that, Coyte said. He was deprived of showers and grew fungus underneath his skin. He lost his will to even want to get out and live in the outside world, Coyte told msnbc.com.

"Your insanity builds. Some people holler or throw feces out their cell doors," he said. "Others rock back and forth under a blanket for a year or more, which is what my client did."

By the time Slevin got out of jail, his hair was shaggy and overgrown, his beard long, and his face pale and sunken, a drastic contrast from the clean-shaven booking photo taken of him when he was arrested two years prior…

"Hs life has been devoted to survival [since his release from solitary]," Coyte told msnbc.com. "He is totally inequipped; he is hollow. They’ve removed his humanity from him."

His suffering hasn’t been in vain though, Coyte said.  "He’s a brave guy. When he says it’s not about the money, he really means it. He wants no one to go through what he went through. And people do, in New Mexico and across this country."

This wasn’t China or North Korea.  This happened in America.  And as his attorney said, this kind of thing isn’t going on just in New Mexico, it’s happening "across this country".
 

(Thanks to Robert Battle and Bill Sullivan.)
 

That’s right. It’s because the physiology of alcoholics is different in some important respects. One of those is that their bodies produce more acetaldehyde — far more. Acetaldehyde? That’s a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. Unfortunately, alcohol in the lungs has been found to metabolize there as well as in the liver — and to produce acetaldehyde there.

The amount of acetaldehyde produced in the lungs (to then be breathed into the breathalyzer) varies from person to person. “Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking”, 100 Journal of Laboratory Clinical Medicine 908. But in a study focusing on alcoholics, researchers discovered that the amount of acetaldehyde in the breath and blood of alcoholics was 5 to 55 times higher than that in nonalcoholics. “Elevated Blood Acetaldehyde in Alcoholics and Accelerated Ethanol Elimination”, 13 (Supp 1) Pharmacology, Biochemistry and Behavior 119.

End result: since breathalyzers can’t tell the difference between alcohol and acetaldehyde (see earlier post, “Why Breathalyzers Don’t Measure Alcohol”), alcoholics will usually have falsely higher blood-alcohol readings.
 

B.C. Senior Snared by Draconian Drunk Driving Law

Calgary, Alberta, Canada.  Jan. 12 —  To bully and berate an innocent senior then punish her without a trial for a crime she clearly didn’t commit.

This, apparently, is what Alberta has to look forward to under draconian drunk-driving laws inspired by our neighbouring province, where suspected motorists are guilty until they prove themselves innocent.

Fortunately for 82-year-old Margaret MacDonald, tears brought on by allegedly obnoxious B.C. RCMP officers didn’t blind her to protecting herself.

"I came into the house and burst into tears — then I stood here at three o’clock in the morning and thought ‘my word means nothing’," said MacDonald.  "Three officers don’t believe me, so I phoned the hospital and took a taxi over to have a blood test.  I’m not going to let the Mounties get away with saying I was drunk."

At the Cranbrook, B.C., hospital, she obtained a laboratory document proving what she’d desperately been trying to tell police a few minutes before.  There was no alcohol in her system — not a drop — and yet MacDonald’s failure to provide a proper breath sample meant her car was taken away for a month and her licence suspended for 90 days.

Now, $6,000 out-of-pocket and in fear of losing her home, the Cranbrook senior will wait another six months for a ruling on her case…

It was May 21 when MacDonald was approached by an off-duty RCMP officer, just outside her home.  MacDonald, a near-teetotaler, was returning from an engagement party at a friend’s house when she mistakenly turned into the wrong lane. She assumed that’s why the police officer was there.

Even when the off-duty cop told MacDonald a breathalyzer was coming to test her for drinking and driving, she didn’t worry — her last serious drink was 60 years ago. "I really don’t drink," she said.  What she didn’t count on was the lung power needed to properly blow into a police breathalyzer. Having suffered from serious pneumonia a few years ago, she couldn’t manage.

That didn’t stop RCMP from making her try — over the next two hours, MacDonald says she was forced to stand in the chill and told to blow 15 times by increasingly snotty RCMP officers.

"He pounded on the hood of his car and shouted at me to blow. He shoved this thing in my mouth and it fell on the ground, and he picked it up and put in back in again," said MacDonald.

"I said, ‘I don’t drink, I haven’t been drinking,’ and he said, ‘you’re sticking your tongue in there because you don’t want do this — you’re slurring, you’re drunk and you stink of alcohol.’"

RCMP officials are now reviewing the conduct of officers that night, but try as they might, the Mounties couldn’t get a sample from the shivering, teary-eyed senior, who was wearing only sandals and a thin dress.  

Thus, MacDonald was cited for failing to provide a breath sample, given a Notice of Driving Prohibition for three months, fined $500 and told her car was to be towed.

MacDonald wept, but she was sharp enough to obtain proof of her innocence, because in Canada that used to be enough to make those in power see sense.

Not anymore. Under a system about to be adopted in Alberta, drivers suspected of driving drunk, even under .05%, can lose their licences and cars without a trial.

Even after MacDonald took her blood test to the RCMP station, she was told nothing could be done…

Despite proof of alcohol-free blood, B.C.’s superintendent of motor vehicles adjudicator still found her guilty…

The ordeal took a massive toll on MacDonald — a few days later, she suffered what doctors in Calgary told her was a mild, stress-related heart attack, leaving her bed-ridden in hospital.

Back in Cranbrook, all she can do is wait.

"I’m nearly 83 and you have to cope with life, but through my years I’ve never been this traumatized over anything," she said.  

"Especially when I’m totally innocent."
 

The War on Drunk Driving continues…. 
 

The latest example of this supposedly non-existent practice:

Drunk-Driving Quota Case May Lead to Similar Efforts Elsewhere

Baltimore, MD.  Jan. 6 – Even as prosecutors weigh an appeal of a Howard County judge’s decision to throw out drunken-driving charges and rule that they were tied to illegal citation quotas, defense lawyers are considering whether the same defense might apply to past or current cases.

District Court Judge Sue-Ellen Hantman’s ruling in a case against an Ellicott City woman has raised questions on both sides — as well as eyebrows around the legal community…

Hantman said the charges against Katie Majorie Quackenbush, 22, were linked to an illegal quota — a ruling based on a memorandum that police have said was intended to describe the requirements of a federal grant that paid overtime for officers to target drunken and aggressive drivers through "saturation patrols."

"I find any evidence in this case to be inadmissible," she said, according to a recording of her Thursday ruling, and that ended the prosecution. Nevertheless, the judge indicated that "I don’t think saturation patrols are in and of themselves illegal, merely the quotas."…

The police chief said a memo to officers that called for two to four citations per hour contained, “in retrospect, not the best wording,” and conceded that he “could see how it could be misinterpreted.” He said the department does not use quotas and had revised the memo.

The memo also told the officers on the drunken-driving and aggressive-driving saturation patrols that they usually produce “at or above these amounts.”

The federal funds come from the National Traffic Safety Administration to the state, according to Buel Young, a spokesman for the state Motor Vehicle Administration. Jurisdictions can apply for them.

 
So the police chief insists that "the department does not use quotas"…and that the memo was just "perhaps not the best wording"?  Hmmmm…..it’s hard to see how "it could be misinterpreted": the departmental order that cops have to produce "two to four citations per hour" sounds pretty clear to me.

Interesting that the federal grant appears to have required police agencies to use quotas….
 
 

The President of MADD has been quoted in the Los Angeles Times as saying: "We don’t want cell phones and drowsy driving to become the next hot-button issue for the country, because they don’t even compare with the problem of drunk driving."  The Partnership for Safe Driving, a non-profit organization in Washington, D.C., responded:

Let’s examine the claim. During the year 2001, the government estimates that 17,448 – or 41 percent – of the deaths on our nation’s highways were "alcohol-related." In addition, approximately 275,000 – or 16 percent – of the injuries were attributed to alcohol. Since the rate of fatalities is so high, and so much higher than the rate of injuries, let’s take a closer look at that statistic.

Of the 17,448 fatalities, 2,555 occurred in crashes where alcohol was detected but no one was over the legal limit. In these crashes, alcohol may not have been the primary factor in the crash; speed, distraction or fatigue could have been. That leaves 14,893 deaths that can actually be attributed to alcohol. However, of these, 1,770 were intoxicated pedestrians and cyclists who walked out in front of the vehicles of sober drivers. They had nothing to do with drunk driving.

The Partnership questions why these deaths were thrown in with what is normally presented as a drunk driving statistic. That leaves 13,123 deaths that can be attributed to intoxicated drivers. Of these, a staggering 8,308 were intoxicated drivers who killed themselves in crashes. That leaves 4,815 deaths in which intoxicated drivers killed someone other than themselves….

How do these figures compare with cell phone use?

To date, the Harvard Center for Risk Analysis has provided the only nationwide estimates of cell phone involvement in fatal and injury-producing crashes. Researchers there report that cell phones are now a factor in approximately 2,600 fatalities annually and 330,000 moderate to critical injuries. But because the data on cell phone use by motorists are still limited, the range of uncertainty is wide. Researchers say that the range for fatalities is 800 to 8,000 annually, and the range for injuries is 100,000 to one million annually….

And fatalities caused by tired and sleepy drivers?

As with cell phone use, the influence of drowsy driving and fatigue on crashes often is not known unless the driver survives the crash and admits to having nodded off. Unlike both alcohol involvement and cell phone use, there is no scientific method even available for determining its presence. That said, the government estimates conservatively that 1,500 people are killed annually as a result of motorists who fall asleep at the wheel, and another 71,000 are injured annually in such crashes. However, the National Sleep Foundation believes that drowsy driving and fatigue often play a role in crashes that are attributed to other causes. For example, the government lists driver inattention as the primary cause of approximately one million police-reported crashes each year. The sleep foundation points out that drowsy driving and fatigue make such lapses of attention more likely….

Confirmation of this data has come from a study ("Drunk or Drowsy?") jointly undertaken by the AAA Foundation for Traffic Safety and the National Highway Traffic Safety Administration (NHTSA), which found that “Nearly nine out of every ten police officers…reported they had stopped a driver who they believed was drunk, but turned out to be drowsy…. According to NHTSA data, up to 100,000 police-reported crashes annually involve drowsiness or fatigue as a principal causal factor.” 

Interestingly, “89 percent of police officers agreed that drowsy driving is as dangerous as drunk driving”. 

MADD’s passionate fixation on drunk driving appears to be blinding it to the importance of other, possibly more significant, causes of traffic fatalities.
  

Interestingly, MADD has been silent as the greater danger increasingly appears to no longer be from alcohol:  statistics now clearly point to distracted and drowsy driving as greater threats on the highways.  See, for example, Most Dangerous: Drunk, Drowsy or Distracted?

Now let’s add one more type of impaired driving to the scale: drugged driving….

Driving on Drugs Skyrockets, Drunk Driving Drops

Phoenix, AZ.  Dec. 21 –  East Valley DUI Task Force officers almost need to be chemists to keep up with the concoctions used by impaired drivers. Drug arrests are soaring while alcohol arrests are declining.

The job of nabbing impaired drivers is becoming far more complicated, with drivers under the influence of not only alcohol but prescription and illegal drugs, said Mesa police Sgt. Dave Meicke, a supervisor of this year’s crackdown.

He said drug arrests by one of the nation’s longest and largest DUI task forces have increased from 13 percent in 2002 to 59 percent this year.

Meicke attributes the change to steady progress on education about the hazards of driving under the influence, more officers trained to recognize drug impairment and more people abusing prescription and illegal drugs…

Perhaps MADD’s focus should be on preventing injuries and death on the highways — rather than on Prohibitionist attacks on the evils of alcohol.  
 

Call in Drunk Driver, Get Paid $100

Chicago, IL.  Dec. 21 – This holiday season, you can earn a little extra cash by reporting suspected drunk drivers on the roads.

The Alliance Against Intoxicated Motorists (AAIM), an anti-drunk driving group, is expanding its program throughout the streets of Illinois for the next two weekends, according to the Chicago Sun-Times.

The "Drunkbusters" program gives callers the opportunity to collect $100 for reporting an intoxicated driver. In order to be paid, the call must lead to a DUI arrest.
Drunkbusters was established in 1990 and has since given out more than $445,000, which resulted in the arrests of more than 4,450 impaired motorists, according to the Sun Times.

 
Note:  The $100 does not depend on the person reported being convicted — only for being arrested.  And the cop responding to the call already has you as a witness to what you claim is drunken driving, so chances of an arrest are high. I wonder how many of those 4,450 arrested motorists were actually convicted?

Bounty hunting on the highways….
 

What is the single most important piece of evidence in most drunk driving cases? The breathalyzer test. In fact, it’s the only evidence of the crime of driving with over .08% blood alcohol. And it’s pretty important for the “driving under the influence” charge, too: the law presumes the defendant is under the influence if the test result is .08% or higher. Evidence just doesn’t get more important than that.

So, of course, the police are careful to preserve the breath sample, right? I mean, there may be some question later of whether the machine was working correctly; it would be a simple matter to save the sample so it could be tested again on another machine. And, hard to believe, but the defense may not want to just take the officer’s word that he administered the test correctly and that the test results were from the defendant.

Unfortunately, the breath sample is routinely destroyed moments after it is tested.

But how can this be? That’s a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and reversed the conviction:

Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).

How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a “field crimper-indium encapsulation kit” was readily available, cheap and approved by the California Department of Health Services. So why isn’t the evidence saved in DUI cases today?

The Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case. California v. Trombetta, 467 U.S. 479 (1984).

What? Neither of these two conditions is met in a DUI case? Let’s take another look at the Supreme Court’s test…

1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of any value to the suspect?

2. The defendant was able to “obtain comparable evidence by other means”…..How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him — but it would probably be so much later that it would not be relevant or even admissible in court.

Another example of “The DUI Exception to the Constitution”.

It’s interesting that the New Hampshire Supreme Court later rejected the Supreme Court’s reasoning, and relied upon its own state constitution in requiring breath samples to be saved:

A suspect would face numerous practical difficulties in obtaining a second sample on his or her own. While in police custody, the suspect would have to locate an available, licensed technician capable of promptly performing a second test, no matter what time of day or night. Even if a defendant successfully obtained an independent second test, the results would not have the same evidentiary force as would a second test performed on the same machine at approximately the same time. Opinion of the Justices, 557 A.2d 1355 (1989).

The Trombetta decision was, as intended, a huge green flag to police agencies across the country: Go ahead and destroy the main evidence — but only in DUI cases. And law enforcement agencies have happily complied.