Cynics might suggest that this may have something to do with political considerations — with the desire of some politicians, judges and prosecutors to get reelected. We’ll talk about that in another post. In the meantime, let’s take a look at an example of what kind of thinking goes on in the judicial mind when dealing with 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 Supreme 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 of California 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 admitted 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 the 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."

Deputy, Officer Argue Over DUI Stop

Ponce cop heard trying to help county sergeant

Ponce Inlet, FL.  Nov. 8  –   A Ponce Inlet police officer who pulled over an off-duty Volusia County sheriff’s deputy on suspicion of drunken driving last weekend was apparently trying to help his fellow law enforcement officer, an audiotape of the traffic stop reveals.

"(Sheriff’s) Sgt. Greg Miles is going to come and get you," Officer Chris Selander is heard saying on the tape he made early Sunday morning. "I’m not going to arrest you. You can relax. You know you’ve been drinking probably a little too much. I saw the alcohol in the car. I can smell it."

A short while later on the 45-minute tape, Selander goes on to say, "You’re a sergeant now. You get to keep your job, and that’s your career."

But the deputy, Sgt. Kenneth Vickery, still seemed intent on arguing he hadn’t done anything wrong and repeatedly raised Selander’s ire as the pair stood in the 4300 block of South Atlantic Avenue. Vickery, who works in the sheriff’s training division, insisted he hadn’t crossed any lines on the road, hadn’t swerved and wasn’t speeding.

"You ran off the road, and, now, you’re basically calling me a liar," said Selander, a patrol officer. "I didn’t have to do any of this. You could be sitting in that jail right now. You still can."…

The conversation continued to switch from calm to arguing.

At one heated moment, Selander said, "You’ll be lucky if you have a job after this. Now, sign the ticket, keep your mouth shut and go home."

At another angry moment Selander said, "I think you want to go to jail. I’m tired of your attitude. . . . You don’t even act like a police officer. You don’t even act like a sergeant."…

When all was said and done, Vickery was cited only for an improper lane change.

If it were you driving that car, you’d be facing drunk driving charges — and resisting arrest…after you were released from the hospital.

Thousands of Tucson-Area DUI Cases May Get the Boot

Intoxilyzer 8000 May Be Ruled Unreliable

Tucson, AZ.  Nov. 9  – A dozen years ago, 3,000 drunken-driving prosecutions in Tucson were dismissed in one day – about 5,000 cases within a few months – because the breath-test device that said the drivers were drunk was deemed unreliable.

Those numbers could easily be surpassed if one of the current alcohol detectors in Arizona, the Intoxilyzer 8000, is found to be unreliable, a leading driving under the influence defense attorney said.

"This is going to be huge," said Tucson lawyer James Nesci, because the current machine is widely used statewide as opposed to the older device, which was used in Tucson and at a smaller agency…

Despite court orders across the country, CMI has declined to divulge the code, which defense attorneys say will show that the device is error-prone. The company has racked up more than $1 million in fines by refusing to comply with a similar Florida court order, records show.

CMI President Toby Hall didn’t return phone calls for comment. When Bernini first ordered CMI to release the code, Nesci said a process server couldn’t get Hall to accept the court order.

Last month, Bernini told prosecutors to get the source code from CMI.

Deputy County Attorney Robin Schwartz told Bernini that she didn’t think the state could force CMI to reveal the code.

Bernini also set a Nov. 24 hearing for Hall to appear and explain why she shouldn’t hold him and CMI in contempt for refusing to comply with her orders…

Recent events echo those in the mid-1990s when defense attorneys challenged the integrity of the RBT IV breath test machine, manufactured by Intoximeters Inc., based in St. Louis. Prosecutors eventually agreed that the device was faulty, which led to 3,000 cases being dismissed at once in 1997 and the total number thrown out about 5,000, Nesci said.

What are they so afraid of?  Could it be that inside the black box is…junk?
 

Why don’t they use them?  And why, when they do, do they so often get lost or erased?  See my post Why Do Police Erase Videotapes?

Local Attorney Says All D.U.I. Arrests Should Be Videotaped

KUTV News, Utah.  Oct. 23  - Many Utah police departments videotape suspected drunk drivers.  The Highway Patrol has most of the dashboard cameras in Utah.  Attorney Jason Schatz wants to see more videotaping for the sake of his clients.

 “It’s only fair to those people if the technology is available”, he says.  Schatz defends suspected drunk drivers and says often, police video is valuable evidence in court, challenging officers’ written reports.  

 “You look at the police report and you’d think this person was falling down drunk, then you see the tape and you say ‘Wait a minute, that doesn’t look the way it was described on paper”. 

Schatz says he wants Utah to adopt mandatory videotaping like the State of South Carolina.  He hopes to find a local lawmaker who will take the issue to Capitol Hill.

Forgive my cynicism, but I’m naturally suspicious of prosecutors who say they would rather spend money on charitable causes than on more trustworthy evidence.

Zamboni Driver Charged with Drunk Driving

Kingsville, Ont.  Nov 1  -  A 34-year-old woman from Kingsville, Ont., has been charged with impaired driving — on a Zamboni.

Provincial police say an off-duty officer spotted the woman driving erratically on the ice resurfacer at Kingsville Arena on Thursday night.  The driver was missing major spots on the ice and bumping into the boards. 

 
Maybe it’s a trend.  See my post two years ago, DUI on Ice, where a New Jersey judge threw out a Zamboni case, ruling that "four-ton ice rink-grooming machines aren’t motor vehicles because they aren’t useable on highways and can’t carry passengers".  Don’t you just hate it when some common sense judge takes all the fun out of MADD’s hysteria?

What are they hiding?

The courts in a number of states have ruled that the defense has a right to know whether the code — critical to the accuracy of the machines’ readings — is reliable and accurate. See  Judge Orders Secrets of Breath Machine Revealed, Judge: Divulge Breathalyzer Code…or Else , Secret Breathalyzer Still Secret, Second Manufacturer Must Reveal Secrets. Yet, the corporations manufacturing these highly profitable machines refuse to comply.  In only once case, where the New Jersey Supreme Court ordered the manufacturer of the Alcotest 7110 to turn over the code, experts found the software running the machine to be antiquated, unreliable and inaccurate.  See Secret Breathalyzer Software Finally Revealed.

Judge: Prosecutors Must Get DUI Breath-Test Software Code

When a citizen is booked on suspicion of drunk driving, his driver’s license is immediately suspended by the police if he (1) takes a breath test indicating .08% blood-alcohol or higher, (2) takes a blood test (even though results are unknown until later lab analysis), or (3) he refuses to be tested.  In essence, the cop is the judge, jury and executioner.

But what happened to due process, to fundamental fairness?  Well, the citizen has a right to appeal the suspension by demanding an administrative hearing where he can challenge the DMV’s evidence,  present his own evidence and argue his case.

In California, as in most states, this is done at a hearing conducted by the Department of Motor Vehicles.  As I’ve pointed out in previous posts, however, this "hearing" is anything but a fair and impartial one.   See Due Process and Automatic License Suspensions.  

1. The government agency that is trying to sustain the suspension — the DMV — is the same one conducting the hearing.

2. Hearsay police documents – which cannot be cross-examined – are admissible and commonly make up the Department’s entire case.

3.  If the citizen wants to cross-examine the officer, he has to subpoena him at his own cost (service of the subpoena and the officer’s overtime salary) for the privilege.

4.  The prosecutor is not a real prosecutor, nor even an attorney.  Nor, in most cases, even a college graduate.  He is an employee of the DMV.

5.  The judge is also not a real judge — not even, as in other states, an ALJ (administrative law judge).  In fact, this "judge" is also not an attorney.  Nor a college graduate.  This "judge" is, like the prosecutor, an employee of the DMV with a high school degree.

6.  The "prosecutor" and the "judge" are, in fact, the same person.  That’s right, this supposedly impartial hearing officer is both prosecutor and judge.  He can object to the citizen’s evidence — and then rule on his own objection.  He presents his case — and then decides if he wins or loses.

Amazingly, however, a few of these DMV hearing officers try to do the right thing.  So what happens if some hearing officer starts developing a conscience and makes a few decisions in favor of the citizen? 

The following is an internal memorandum provided to me by a very reliable source which the manager of the California DMV’s San Diego hearing office circulated to his hearing officers yesterday.  (Note: a "set aside" is the term used when a license suspension has been reversed by the hearing officer.) 

From:  [Manager, San Diego Driver Safety Office] 

To:  [names of 14 hearing officers]

Sent: Monday, October 27, 2008  2:12pm

Subject: Set Asides

This is a reminder to place your set asides in the SET ASIDE basket in the file room.  I run a weekly report to confirm that the set asides are being placed in the basket.  Some of you have not been putting the set asides in the bin.

To date, I have reviewed 17 set asides.  The results are as follows:

     – 6 good decisions
     – 4 are questionable — needing review of the [tape] recording to make determination
     – 7 are unwarranted set asides

These results are terrible, in that we have  no rookie hearing officers.  Should you be responsible for any of the 7 unwarranted set asides, your manager will be discussing the case(s) with you, if they haven’t already.

I  will be publishing my findings on each of your cases — good and bad ones — minus the hearing officer name and case info.  Should you wish to discuss any of these cases with me, feel free to do so.

In reading this "smoking gun" memo, ask yourself the following questions:

1.  Why are are the decisions — verdicts — of these administrative judges subject to further review by the DMV’s office manager?  To identify and weed out hearing officers who are not sustaining enough DMV suspensions?

2.  Why is the office manager substituting his own judgment for that of the hearing officer who heard the evidence?

3.  Why are the hearing officers ordered to submit their set aside decisions for review — but not their decisions sustaining the suspension?

4.  Why do supposedly independent judges have "managers"?

5.  How can 11 of 17 decisions in favor of the citizen – a tiny percentage of all cases handled by the San Diego office — be determined "questionable" or "unwarranted"?

6.  Why are the results "terrible, in that we have no rookie hearing officers"?  Because "rookies" don’t yet have the big picture and are actually decidng cases on their merits?

7.  What do you think the clear message of this memo is to all hearing officers who want to keep their high-paying jobs?

This is the supposedly "fair" hearing by an "independent" hearing officer that is given to citizens who have had their licenses taken by police.  And as any DUI attorney will tell you, this same approach is found in   hearing offices statewide.

Welcome to "due process" at the DMV.

I concluded the post with the comment, "Do you really think this only happens in Miami?"….

Thousands of DWI Cases Put in Jeopardy

Inspector faked her checks of devices that test breath, DPS says

Houston, TX.  Oct. 25  -  Thousands of drunken-driving cases in the Houston area could be dismissed because of an inspector of alcohol breath test machines who didn’t conduct the examinations she claimed to have completed.

The Texas Department of Public Safety announced Friday that it suspended the certification for a woman who contracted to keep the breath test machines accurate for the Clute, Friendswood, Galveston, League City, Pearland, Seabrook, South Houston and Webster police departments.

DPS said she altered electronic records to make it appear she’d tested and adjusted the calibrations of machines when she had not.

DPS officials said the woman, an independent contractor with each of the municipalities, had been falsifying records for up to a year and that would affect at least 2,600 DWI charges. The Texas Rangers are conducting the criminal investigation.

She has not been charged with any crime…

 

Thanks to Bryan Hanks and Troy McKinney.

Once the officer pulls the driver over, he gets out and approaches the car with the very human preconception that the driver is probably intoxicated. And, as we know from psychological studies, we tend to see what we expect to see: normally veined eyes appear “bloodshot”, normal but nervous speech sounds “slurred”, normal pink complexion appears “flushed”, etc.

These observations are quickly followed by the notoriously subjective and inaccurate field sobriety tests, difficult to perform under the best of conditions (see my earlier post, “Field Sobriety Tests: Designed for Failure?”)….Followed by an arrest for drunk driving.

Fudged Breathalyzer Tests Questions DUI Arrests

Inspector Turned Machines Off When They Appeared About To Fail Throwing Into Doubt Thousands Of Drunk Driving Citations

Miami, FL.  Oct. 16  –  Defense attorneys were in a Miami courtroom on Thursday seeking a judge’s order to inspect the hard drives of every breathalyzer machine used in Miami-Dade county. 

Before Judge Jose L. Fernandez, attorney Michael Catalano said, "We’re interested to find why she was unplugging breath machines so that she could cover up mistakes and not tell anybody."

This comes after the Florida Department of Law Enforcement fired the examiner who was responsible for testing all the DUI machines, alleging she failed to follow protocol with the inspections.

Defense attorneys contend it is a scandal that puts suspicion over thousands of DUI cases in Monroe, Broward and Miami Dade.

"The number of cases involved could be as many as 10,000 here in Miami-Dade County," attorney Richard Hersch explained to CBS4 reporter Gary Nelson. "The inspector who has been discharged here was on duty for about 18 months before she was discharged."

In a "notice of dismissal", the FDLE accuses analyst Sandra Veiga of having encouraged police agencies to abort tests on Intoxilyzer 8000 machines that were giving questionable results.

"What the inspector was doing," Hersch said, "was unplugging the machine if the inspection was failing, then plugging it back in; that prevented the machines from reporting the malfunctions to Tallahassee."  
 

 Do you really think this only happens in Miami?