“Physician, Heal Thyself”

Thursday, May 29th, 2014

I've posted repeatedly in the past of the hypocritical double standard that pervades the criminal justice system when it comes to drunk driving.  Members of law enforcement, prosecution and the judiciary are quick to accuse and severely punish those suspected of DUI.  Cops have quota systems and rewards for high DUI arrests; prosecutors seek promotions for winning convictions; judges and legislators fear being accused of "soft" on drunk drivers when election time nears.  

And yet….these same people are commonly guilty of the same crimes about which they act so righteously – and are all too often protected by the system.  See, for example, The DUI Double Standard, Guarding the GuardiansThe DUI Double Standard Continues, When Judges Judge Judges and "I'm a Judge, Bro".

And in yesterday's news…


Third Florida County Judge in Seven Months Faces Charges

Broward County, FL.  May 28 (NBCNews) – Three Broward County judges have been arrested on DUI charges in the last seven months. The rash of arrests has sent shockwaves through the courthouse and prompted the county’s top public defender to say something is wrong with the judicial culture in the county.

“When people ascend to the bench and put that robe on, it’s very common that they start to believe that they are bigger than the law; they are above the law; they are the law,” said Broward County public defender Howard Finkelstein. “Is that happening in Broward? I’ve seen that happen here for many years, decades. I thought it was getting better. I still think it’s getting better, but this is a very big bump in the road.”

The latest arrest came Tuesday when Judge Lynn Rosenthal of the 17th Judicial Circuit was arrested after hitting a parked, unmarked patrol car in a Fort Lauderdale courthouse parking lot. Judge Rosenthal told deputies she was also forced into a guardrail on I-595 on her way to work before the parking lot accident, but deputies said video disputed that report…

Just last week, fellow Broward County Judge Gisele Pollack was suspended from the bench without pay after she was arrested on DUI charges earlier this year following a car crash.

In November, long-time Broward Judge Cynthia Imperato was arrested for DUI in Boca Raton…


Want to bet whether this judge, like so many other judges, cops, prosecutors and legislators, will get nothing more than a slap on the wrist — if that?


(Thanks to Matthew Kensky.)
 

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Report a Drunk Driver, Receive Reward

Monday, May 26th, 2014

Memorial Day provides weekend warriors the three-day weekend to remember those who died while serving our country. However, as the unofficial kick-off to summer, it also provides three full days to barbeque and indulge in some pre-summer drinks.

If you happen to be in Illinois, you could earn yourself a cool $100 for reporting a drunk driver. Or you could find yourself the target of a DUI investigation because someone else thought they could make an easy $100.

Chicago’s WBBM’s Steve Miller reported that, this Memorial Day weekend, the Alliance Against Intoxicated Motorist (AAIM) will be paying tipsters $100 for reporting a drunk driver in the state of Illinois.

“The tragic consequences are heartbreaking when somebody decides to get into a car and they think that they’re OK to drive. And they’re not,” said Rita Kreslin, the executive director of the AAIM. “We have paid out over $486,000. That’s 4,866 people that have been drinking and driving that have been removed from the roadways.”

She also said AAIM has taken some criticism for this approach, but “the majority of those people are probably the same people that would drink and drive and not think twice about it.”

Sorry Rita, not true.

I’m giving this approach flak because it creates the possibility of innocent people being stopped and investigated for drunk driving. How many people were reported who weren’t drunk? How many people will be stopped simply because it was a possibility that the tipster be paid $100? Unfortunately, I can’t answer these questions.

More importantly, how many of the tipsters actually know that a driver is drunk? This one, however, I can answer.

None.

Forget tipsters making completely false reports. Let’s say there is a reason for the tip. Tipsters will be reporting mistakes in driving, not drunk driving. And we all know there is a multitude of reasons why someone can make a mistake in driving other than intoxication. But that’s not going to matter, is it? With a $100 incentive, driving error equals drunk.

Fortunately, we’re all the way over here in California and about 1,700 miles away from AAIM’s incentivized witch-hunt. But it begs the question: Does the tip even give the officers the authority to pull someone over when they, themselves, saw nothing that would indicate a DUI?

Unfortunately, in California (…and the rest of the country) the answer is yes.

Recall my colleague, Lawrence Taylor’s post http://www.duiblog.com/2014/04/23/anonymous-tips-now-enough-to-stop-drivers-for-dui/

The United States Supreme Court recently held that an anonymous tip is sufficient to justify a police stop for the purpose of investigating a DUI even though there is no way to verify the truth or reliability of the anonymous tip.

So much for the 4th amendment and probable cause. And in Illinois, people actually get paid for their participation in the undermining the Constitution!

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Another Weapon in the “War on Drunk Driving”: Forced Catheterization

Thursday, May 22nd, 2014

Just how far are we as a free nation willing to go in MADD's jihad on drunk driving?  

Well, how about ramming a catheter up a male DUI suspect's penis to get a urine sample for alcohol analysis — even after he has already had a blood sample taken?


C.P. Man Seeking $11M in Catheterization Lawsuit

Hammond, IN.  May 12 – A Crown Point man is seeking at least $11 million in damages from Schererville, two of its police officers and the owners of Franciscan St. Margaret Mercy Health in a federal lawsuit in which he said he was subjected to a forced catheterization following a traffic stop.

William B. Clark, a former Schererville resident, is suing the town, police Officers Matthew Djukic and Damian Murks and Franciscan Alliance Inc., doing business as St. Margaret Mercy…

In the lawsuit filed Friday in U.S. District Court, Clark, 23, claims he was driving on U.S. 30 near the intersection of U.S. 41 in Schererville last May when he was stopped by Djukic. According to the lawsuit, Djukic allegedly observed the vehicle, which contained one other occupant, driving erratically and claimed he detected a moderate odor of alcohol in Clark's vehicle. Murks allegedly responded in a separate car.

The suit states that Djukic falsely claimed Clark's breath test results were 0.11, exceeding the legal limit of 0.08. The lawsuit also alleges the town failed to provide proof of the test result when a motion for discovery was filed in the criminal case against Clark, which is still pending.

According to his lawsuit, Clark submitted to a blood test at the Dyer hospital that showed his blood alcohol was below the legal limit. It states Djukic, however, became impatient with Clark's inability to urinate to provide a urine sample and made an effort to forcibly get the sample. The suit claims Djukic physically restrained Clark while hospital personnel inserted a catheter to extract the fluid.

The suit claims Murks either used inappropriate force against Clark or failed to take reasonable steps to protect him from being subjected to the use of such force.

The lawsuit states Clark allegedly "loudly moaned in pain" as the process began. It adds that the actions taken to obtain the sample were "painful, degrading and humiliating."…


An isolated incident?  Hardly.  See my previous posts:  Catheter Forced up Penis After DUI Arrest (Washington) and DUI Suspect Forced to Have Penis Catheterized (Utah), to name just two such incidents.   

What's next for citizens suspected of drunk driving?  Why not strap female DUI suspects down on a table and forcefully extract urine samples from them as well?
 

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California DWI – Driving While Addicted

Monday, May 19th, 2014

Believe it or not, it is a crime in California to drive while being addicted to drugs or alcohol.

Lesser known California Vehicle Code section 23152(c) provides: “It is unlawful for any person who is addicted to the use of any drug to drive a vehicle.”

You may be asking yourself the same thing I did when I first read it. Huh?

The “huh?” was the reactionary expression of two other questions: What’s the purpose? And who is an addict?

In the 1965 case of People v. O’Neil, the California Supreme Court addressed both of these issues by looking at the legislative intent of 23152(c). The court determined that “when an individual has reached the point that his body reacts physically to the termination of drug administration, he has become ‘addicted’ within the meaning and purpose of [23152(c)]. Although physical dependency or the abstinence syndrome is but one of the characteristics of addiction, it is of crucial import in light of the purpose of [23152(c)] since it renders the individual a potential danger on the highway.”

While the court focused on the theory that an addict going through withdrawals can pose a risk to the roads, it said that a person need not be going through withdrawals to be arrested, charged, and convicted of California’s driving while addicted law.

“The prosecution need not prove that the individual was actually in a state of withdrawal while driving the vehicle. The prosecution’s burden is to show (1) that the defendant has become ‘emotionally dependent’ on the drug in the sense that he experiences a compulsive need to continue its use, (2) that he has developed a ‘tolerance’ to its effects and hence requires larger and more potent doses, and (3) that he has become ‘physically dependent’ so as to suffer withdrawal symptoms if he is deprived of his dosage.”

So let’s get this straight. You can be charged with a crime if you’re addicted to drugs or alcohol even if you’re not intoxicated or you’re not going through withdrawals. So then that begs the question: What’s the point?

Unfortunately, the California Supreme Court has yet to answer that question.

Fortunately, however, the law does not apply to those who are participating in a narcotic treatment program.

Well it’s nice to know that the law only protects those who are receiving treatment for their disease, but not those who aren’t.

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Good Posture + Bad Complexion = Probable Cause to Stop for DUI

Friday, May 9th, 2014

We have this document called a "Constitution".  At least I think we still do.  And one of the things in that document is protection against police officers stopping us for no good reason.  To be stopped for investigation, the officer must have a "reasonable suspicion" that the driver is committing a crime.  In the past, this has commonly taken the form of observations like pronounced weaving, running stop lights, erratic driving, etc.

But that apparently was the past.  As for today, the following article shows the recent view of a federal circuit court of appeals:


Federal Court Finds Upright Driving, Acne Suspicious

Driving with good posture, with hands at the classic ten and two position on the wheel, is sufficient reason to pull over a driver with a bad complexion, according to a ruling handed down Thursday by the Tenth Circuit US Court of Appeals. A unanimous three-judge panel approved the Border Patrol's April 18, 2012 stop and search of a motorist who happened to be nervous when pulled over.

Border Patrol Agent Joshua Semmerling saw the white Ford F-150 pickup truck being driven in the opposite direction on Highway 80 in New Mexico, about 40 miles from the border with Mexico. It was 7:45pm, a time the Border Patrol agent found suspicious. The truck had an Arizona plate on the back and tinted windows, but its driver, Cindy Lee Westhoven, violated no traffic laws. Instead, Agent Semmerling noted she had "stiff posture" and hands "at a ten-and-two position on the steering wheel" so he decided to do a U-turn and pursue.

A registration check showed the truck was registered to a Lawrence Westhoven in Tucson, which suggested to the officer that Westhoven was either smuggling illegal aliens or drugs. He hit his emergency lights and forced her to pull over. Agent Semmerling testified that he believed Westhoven must have been a methamphetamine addict after he noticed she had acne. Agent Semmerling ran Westhoven's license, and it came back with no warrants, but he continued the stop.

"I thought you were going to let me go," Westhoven told the Border Patrol agent. "Do you think I'm hauling illegal aliens?"

The agent asked to search the vehicle, but she refused to give him permission. Westhoven was ordered out of the truck so a drug dog could sniff it. She was told she was not under arrest but that she was being detained. Twenty minutes into the stop the drug dog arrived and alerted, revealing marijuana. Westoven's lawyer pointed out that the federal agent's story sounded fishy.

"Agent Semmerling contends that he noticed in passing the vehicle that it had an Arizona license plate," attorney Bernadette Sedillo told the district court. "The F-150 does not have a front license plate so Agent Semmerling would have had to observe the rear license plate in the rear view mirror traveling the speed limit of 60 miles per hour."

Sedillo added that there was no reason to continue the stop after Westhoven provided her license, which proved she was a US citizen. The appellate panel was not convinced, finding the totality of circumstances suggested that Westhoven was transporting illegal aliens over the border.

"Driving stiffly, having tinted windows, slowing down when seeing law enforcement, and driving in an out-of-the-way area may be innocent conduct by themselves," Judge Scott M. Matheson, Jr wrote for the appellate panel. "But when taken together along with driving a vehicle with out-of-state plates in a mountainous smuggling corridor 40-45 miles away from the border, we conclude Agent Semmerling had reasonable suspicion Ms. Westhoven was involved in smuggling activity."


Why do the courts continue this charade of grasping at ridiculous reasoning in their pretense of honoring our Constitution?  Why don't they just come out and say it: the Bill of Rights is dead.  It's open season for law enforcement.
 

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