Monthly Archives: February 2005
From the Bangor (Maine) Daily News, the latest thinking in the continuing "War on Drunk Driving":
AUGUSTA: In hopes of reducing death and injury from drunken driving in Maine, legislators are considering confiscating the hunting and fishing licenses of those convicted of operating a motor vehicle under the influence of alcohol or drugs. The proposed bill, LD 82, would suspend hunting and fishing licenses concurrent with a driver’s license revocation as a result of OUI. Repeat offenders with three drunken driving convictions would face a lifetime ban on hunting and fishing in Maine.
Confiscation of dog tags, construction permits and marriage licenses is on the drawing board. (With thanks to attorney Wayne R. Foote of Bangor).
I’ve posted a number of comments recently about the favored treatment received by police, prosecutors and judges when arrested for DUI — usually, a quiet dismissal of charges. When publicity sometimes precludes this option, the individual may have to answer the charges. But go to jail? Never. Consider a recent story about a Tampa, Florida, prosecutor who was charged with DUI as a felony:
Pinellas DUI prosecutor pleads to own drunk driving charge
TAMPA, Fla. Associated Press – A Pinellas County prosecutor known for being tough on drunk drivers will serve probation and lecture school children on the dangers of drinking and driving to settle her own DUI case.
Lydia Dempsey Wardell was arrested in November after she drove the wrong way on a street and was involved in a minor accident. Her two young sons were in the car with her, and police measured her blood alcohol at nearly three times the legal limit for drunk driving.Wardell was sentenced Wednesday after a plea agreement which reduced the drunk driving and culpable negligence charges against her to misdemeanors.
Wardell will serve 18 months probation, and complete other tasks such as spending time on a sheriff’s road crew picking up trash and at least 10 hours of speaking to children. Officials said her punishment is similar to those imposed on other first-time DUI offenders….
"Similar to those imposed on other first-time DUI offenders"? Are they serious? Here we have a person arrested for drunk driving with two children in the car, after an accident, and with a blood-alcohol of about .23% (incidentally, a common indicator of an alcoholic). In most states, an accident will usually increase the jail sentence; a sky-high breath test nearly triple the legal limit definitely will; and exposing kids to all of this is called "child endangerment" and may result in felony charges, as apparently happened here — punishable by state prison. All-in-all, this person gets a very long stretch in jail.
Ms. Wardell, with her reputation for "being tough on drunk drivers", had the felony reduced to a misdemeanor and was only asked to pick up some trash and talk to kids for a few hours. That is known in the trade as a "Santa Claus deal". But then these are reserved for police, prosecutors and judges — those, that is, who are unlucky enough to be arrested by an honest cop in the first place.
Some time ago in a post entitled "Breath Fresheners and Breathalyzers" I commented that one of many problems with breathalyzers was that they cannot distinguish alcohol coming from the blood by way of the lungs from alcohol in the mouth or throat. As a result, any use of breath fresheners or mouthwash will cause falsely high readings on the machines:
One common source of breath alcohol is breath spray, as well as mouthwash — both of which contain significant amounts of alcohol. Listerine, for example, contains 27% alcohol, Scope 19% and Astring-O-Sol 76%. Even a tiny amount of this on the breath or in the throat, if multiplied by the machine 2100 times, can result in high breathalyzer readings.
I failed to consider the possibility of a Listerine cocktail. For those doubting the strength of mouthwash, consider the following story from CNN:
ADRIAN, Michigan (AP) — A woman arrested after failing a sobriety test and telling police she drank three glasses of Listerine has pleaded guilty to drunken driving. Carol Ries, 50, was pulled over after she rear-ended another vehicle at a red light on January 9. She passed one breathalyzer test, but failed another that used different equipment. Police found a bottle of Listerine in her car, and she told them she had drunk three glasses earlier in the day. Her blood alcohol level was more than three times the legal limit, police said. According to Listerine manufacturer Pfizer Inc.'s Web site, original formula Listerine contains 26.9 percent alcohol, while other varieties contain 21.6 percent alcohol.
The focus of the story is on the novelty of drinking Listerine. But note that Ms. Ries "passed one breathalyzer test, but failed another". The first breathalyzer indicated a blood-alcohol concentration below the legal limit of .08%, while the second indicated a BAC of .30% — over three times the legal limit. Do you still believe these machines are accurate? If so, which one — if either? See my earlier posts, such as "Breathalyzers — and Why They Don't Work" and "Why Breathalyzers Don't Measure Alcohol".
There are few things as frustrating to many judges as having to let a time-consuming jury take away their power to decide the case. And nothing so frustrating to any prosecutor than 12 citizens standing between him and a conviction. As I mentioned a few days ago in "Arizona Denies Right to Jury Trial in DUI Cases", the Arizona Supreme Court recently ruled that defendants charged with certain misdemeanors — primarily DUI — are not constitutionally entitled to a jury trial.
The problem is that there is a statute in Arizona which specifically entitles the defendant to a jury trial in DUI cases. But judges and prosecutors have now joined forces in an attempt to deny the citizens of Arizona their legal right to a jury trial if charged with drunk driving. As reported in The Arizona Republic (February 7, 2005):
Prosecutors and municipal court judges in Arizona are now pushing to eliminate the right to a jury trial for misdemeanor drunk-driving charges in the wake of an Arizona Supreme Court decision….
The opinion was published Jan. 14 , and since then, prosecutors in Gilbert, Mesa, and Bullhead City have already asked that DUI jury trials be canceled, and municipal court judges and magistrates in Phoenix and Tucson have already canceled some, pending hearings or a clarification from a higher court. The prosecutors are certain they'll prevail and defense attorneys fear they will. The main obstacle is a state statute that explicitly grants jury trials in DUI cases. At question now is whether that statute is rendered moot….
In response to [an earlier court decision], the Arizona legislature amended the DUI laws, saying in statute 28-1381 (f) that "the defendant may request a trial by jury and that the request, if made, shall be granted."….
Jury trials are expensive and use up time and court resources. "Sometimes we prepare for a jury trial and at the last minute the defendant wants to plead before the court," said Mary Stringer, Magistrate in the Bullhead City Court. "So we have all the jurors on stand-by and the logistics of it are very often time consuming."
Prosecutors don't care for misdemeanor jury trials either, because they take more time to prepare than bench trials — and because they're more likely to end in acquittal.
Costly….Time-consuming….More likely to result in acquittal. Of course, we could just eliminate trials altogether, and have the person arrested immediately sentenced, resulting in even greater savings of money, time — and those irritating acquittals.
In the past ten days I’ve commented on three recent incidents — involving a police officer, a prosecutor and a judge — reflecting the double standard within the criminal justice system when it comes to enforcing DUI penalties against one of their own. During that same period of time, a Justice of the Ohio Supreme Court was also arrested for drunk driving. What is of particular note about that case, other than involving the highest judicial officer in the state, was the attitude of that individual caught on videotape. The following excerpts are from the Toledo Blade:
COLUMBUS – Ohio Supreme Court Justice Alice Robie Resnick refused to take a field sobriety test and drove away from police Monday afternoon when confronted with reports she had been driving erratically on I-75 near Bowling Green….
The highway patrol reported receiving six cell phone calls from motorists alerting them to a vehicle weaving across lanes on I-75. A taped copy of one 911 call received at the patrol’s Waldridge post said the vehicle nearly sideswiped her…. A Bowling Green officer and then a highway patrolman approached the vehicle after finding it stopped at a BP gas station at the Bowling Green exit of I-75.
According to the patrol’s report, they took her driver’s license and registration, and she identified herself as a Supreme Court justice…. She denied having had any alcohol or taken any medication…. She refused to take a vision test and drove off despite the officers’ protests, according to police….
"I informed her that she was not free to go," Bowling Green Police Officer Mark Hanson wrote in his report of the incident. "She thanked us, rolled up her window, and drove off." According to the Ohio Highway Patrol, a patrol car and local police caught up to her back on I-75, pulling her over near Cygnet….
"You don’t have a good reason to stop me," she protested when an officer approached her state-owned 2001 Jeep Grand Cherokee and spoke to her over the barking of her small dog. On an arrest video released yesterday by the patrol, she could be heard from inside her vehicle saying, "It’s not right. I was not weaving anywhere. ‘ I really cannot tolerate this."
"They later conducted a series of tests, an eye test and a portable breath test, which is not an evidentiary test," said Lt. Rick Zwayer, a patrol spokesman. None of that occurred on camera. She registered a .216 on the portable breath test administered in a patrol car along I-75, twice the legal limit for driving under the influence of alcohol.
Later, at the Findlay Post of the Ohio Highway Patrol, Justice Resnick refused to take an official evidentiary Breathalyzer test. A refusal automatically results in a one-year suspension of a driver’s operating license…. On the high court, Justice Resnick has ruled in a number of cases involving drunken-driving issues.
In a later news article, after her arrest Justice Resnick was reported to have asked an officer to let her go. "I decide all these cases in your favor and, my golly, look what you’re doing to me," she said. Side note…..The Toledo Blade somehow obtained copies of the video tapes and immediately released them to the public on their website. Why did the police release the tapes — and so quickly — to the media? And, as TalkLeft asks, what are the chances of this individual getting a fair trial now? Side note #2….For those with full faith in the testimony of officers in DUI cases, it is interesting to note that in one of the videos, an officer comments that he could smell no alcohol on Justice Resnick’s breath, while in another a different officer indicates he does smell alcohol.