“First they came for the drunk drivers…”

Monday, March 24th, 2014

For many years now I’ve written and lectured extensively on drunk driving litigation – on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing.  In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases.

So who cares about drunk drivers and their constitutional rights?

You should care.

The importance of what is happening in DUI law and procedures can be summarized in one word: precedent. We are a nation of laws, more specifically, the common law inherited from the British legal system. Unlike most nations, which use some version of the French civil law where laws are found in codes, we look to the precedent of judicial decisions interpreting statutory law. When a court looks at the facts in a specific case, it applies not only statutes but decisions in appellate court cases to determine what the law is.

The genius of this common law system of precedent is its flexibility; its flaw is what many call "judicial legislation". The flaw becomes particularly noticeable when dealing with politically unpopular subjects. And few topics are as politically "incorrect" as drunk driving. Judges are, after all, politically sensitive animals who want to be reelected. Put another way, it is very easy to rule in favor of the prosecution in DUI cases — particularly when powerful pressure groups like Mothers Against Drunk Driving (annual revenues of over $50 million) are so vocal in elections and in legislatures.

In contrast, there are few advocates for the accused or the Constitution during election campaigns. This judicial attitude is not limited to judges considering re-election. A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights. To mention just a few notable examples:
 

Michigan v. Sitz. The Court held that sobriety roadblocks were permissible — despite the fact that there is no exception in the Fourth Amendment for stopping citizens without reasonable suspicion.

South Dakota v. Neville. The Fifth Amendment right against self-incrimination was held inapplicable in drunk driving cases (refusing to submit to testing).

Blanton v. North Las Vegas. Even though punishable by six months in jail, fines and diver’s license suspension, there is no Sixth Amendment right to a jury trial in a drunk driving case.

California v. Trombetta. Although police normally have to save evidence, they do not have to save breath samples in DUI cases (even though it is easy and inexpensive to do so). So…we have seen a steady flow of appellate decisions at all levels taking away the constitutional rights of those accused of DUI.

Again, so what?

Again, precedent: What happens today to a citizen accused of DUI can happen tomorrow to a person accused of any other crime. If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, has already happened). If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of any other offense.

The danger of precedent in the DUI field is not limited to judicial decisions. Legislatures are also guilty of passing unfair and/or unconstitutional — but politically popular — statutes. We have certainly seen a seemingly unending series of unfair and unconstitutional statutes across the country in recent years: immediate license suspensions at the police station; double jeopardy/punishment (dual license suspension and criminal prosecutions); so-called per se laws (.08% blood-alcohol is illegal, even if the driver is sober); presumption of guilt (if .08%, driver is presumed to be under the influence; if .08% when tested, it is presumed to be .08% when driving); ad nauseum. And having passed such unfair and unconstitutional laws relating to DUI, they are less reluctant to do so in other areas as well.

So who cares about DUI?

To paraphrase the famous quote about the rise of Hitler"First they came for the drunk drivers, but I was not a drunk driver so I did not speak up….."

 

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The Futility and Costs of the “War on Drunk Driving”

Sunday, March 16th, 2014

For the past couple of decades we have seen increasingly severe punishment for misdemeanor drunk driving offenses, often exceeding those imposed for serious felonies.  Spurred on by MADD's "War on Drunk Driving", this never-ending flood of politically-popular laws has continued to blindly accept the idea that imposing harsher sentences will eventually eradicate DUI-caused traffic fatalities.  With each new law, MADD issues press releases trumpeting their latest achievement with promises of an end to the "carnage on the highways" — along with solicitations for contributions to their over $50 million annual revenue.  And yet it continues…along with the collateral costs to our Constitution (see The DUI Exception to the Constitution).

Albert Einstein once defined insanity as "Doing the same thing over and over again and expecting different results".  Maybe it's time for a change….

I have not dealt with 1000s of DUI clients over the years without drawing certain conclusions:

1. The system, clearly, does not work: despite unfair laws, constitutional violations and increasingly harsh penalties, the problem remains…and people continue to die on the highways.

2. Playing games with statistics, as MADD and the government are so fond of doing, only obscures the problem.

3. The problem is not black-and-white, but involves shades of gray. It is convenient to punish anyone with a .08% blood-alcohol concentration, but neither fair nor productive. It is easy to lump all offenders into the same category of "drunk drivers" and simply adjust jail time by a reading on a machine, but neither fair nor productive.

4. You cannot simply identify what the problem is ("drunk drivers are dangerous"), but who the problem is. The problem is not people who drive with .08% BAC or higher, but people who represent a real danger to others on the highway. Who are they?

The problem is the person who severely abuses alcohol and chooses to drive. You can call him an "alcoholic", but it has been my experience in dealing with those 1000s of clients that there are different kinds of "alcoholics" and that using a simple label is no answer (we do love to put things in neat categories).

Statistics repeatedly show that the vastly disproportionate majority of alcohol-caused injuries and deaths are caused by a few "problem drinkers" (for want of a better term). Thus, the first objective in any solution is to identify these individuals. In my experience, they can usually be identified by a combination of factors:

1. Their blood-alcohol level is not just high — it is very high, say .16% to .30% or more.

2. This is probably not the first DUI — and prior incidents are likely to be relatively recent.

3. There is a genetic flag: the individual is likely to have one or two "alcoholic" parents.

All right, we've identified some markers for who the problem is , but what do we do with them? To begin, let's understand what we don't do: we don't hit them with stiff jail sentences. If we do, we simply remove the person from society for a few days or months — and on the day he gets out, he gets in his car and drives directly to a bar. What has been accomplished? Is society being protected — or are we simply punishing people for drinking too much?

Since the punishment model clearly doesn't work for the problem drinker, we must consider the other criminal justice models — isolation, deterrence and rehabilitation.  

1. Isolation. Yes, we can put the problem drinker in jail for a few months or even a few years, and we are safe from him for that period. But can we really afford to house tens of thousands more inmates? For how long? And what happens when they get out? For that matter, given the evidence, aren't we punishing them for a genetic condition?

2. Deterrence. How do you deter an "alcoholic"?

3. Rehabilitation. Once the favored approach in the criminal justice system, rehabilitation fell into widespread disfavor many years ago. Yet, this would appear to be the only logical approach with problem drinkers.

Ok, but what about the driver who is not a problem drinker but who is simply impaired from drinking too much? Answer: Treat him like any other misdemeanant. Statistically, we know he is unlikely to cause serious injury or death, but there is undeniably some risk there. Can this individual be deterred from such future conduct? Unlike with the "alcoholics", statistics show he can. Thus, it may be fair and productive to impose a fine on the typical first-offender, perhaps even suspend his driver's license for a short period; if a high blood-alcohol level is involved, say .20%, the punishment may include a 2-day jail term. But certainly not the punishments so destructive to families and careers that are now being administered to all caught up in the dragnet.

While we're at it, a refreshing approach — and a healthy one for society — would be to reinstate constitutional rights in DUI cases: due process, presumptions of guilt, timely right to counsel, protectiona against double jeopardy, the 5th Amendment right against self-incrimination, the right to confront witnesses, 4th Amendment "sobriety checkpoint" violations, ad nauseum. (Again, see The DUI Exception to the Constitution.)

Does all of this finally solve the drunk driving problem? No: people will always drink and drive. But it will focus on the real threat — the truly dangerous driver — rather than on drinking and driving per se. And, in the process, reinstate the essential fairness and due process that has been slowly removed from the criminal justice system.
 

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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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