Monthly Archives: September 2005

More Cops Drawing Blood

A few weeks ago, I posted about a practice apparently originating in Utah but spreading to other states: police officers using hypodermic needles to draw blood from DUI suspects — often on the highway. As the following local news story indicates, the practice continues to gain momentum:

Texas Police Will Take Blood By Force in DUI Cases

After completing a training course, Dalworthington Gardens police officers have been certified to draw blood from any motorist whom they suspect of driving under the influence of alcohol.

The small North Texas city joins three counties — Montague, Archer and Clay — which have recently adopted similar policies. These jurisdictions are seeking to make drunk driving convictions less vulnerable to court challenge as mounting evidence shows breathalyzer machines can be inaccurate…

Section 724.017 of the Texas code requires that, "Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer….’qualified technician’ does not include emergency medical services personnel." Dalworthington Gardens believes their twenty-hour course meets this standard.

The Texas law permitting only physicians, technicians, chemists or nurses to draw blood seems fairly clear. But then, of course, we’re dealing with the "DUI Exception" here…. Incidentally, did you catch that one little phrase in the story? The one about "mounting evidence shows breathalyzer machines can be inaccurate"?…..(When I read that, I had a flashback to the scene from Casablanca where the police captain, pocketing his winnings, says to the Nazi officer, "I am shocked, shocked, that gambling is going on at Rick’s Place!".)

DEA Wants Prohibition Back?

The Drug Enforcement Administration is apparently experiencing some nostalgia for the good old days of Prohibition, as evidenced by the following from their official Just Think Twice website:

A word about prohibition: lots of you hear the argument that alcohol prohibition failed—so why are drugs still illegal? Prohibition did work. Alcohol consumption was reduced by almost 60% and incidents of liver cirrhosis and deaths from this disease dropped dramatically (Scientific American, 1996, by David Musto). Today, alcohol consumption is over three times greater than during the Prohibition years. Alcohol use is legal, except for kids under 21, and it causes major problems, especially in drunk driving accidents.

MADD is not alone….

(Thanks to Scott Henson of Austin, Texas.)

How to Get DUI Convictions: Change the Rules

In a classic illustration of how the legal system works in DUI cases, the Montana Supreme Court just ruled that results of handheld breath devices used by officers in the field are admissible in evidence — after years of ruling that they were unreliable and inadmissible:

In a 5-2 vote the Montana Supreme Court decided Tuesday to allow a preliminary breath test for alcohol consumption to be used as evidence.

The case of State of Montana versus David Damon involved a DUI stop in 2002 in which a preliminary breath test (PBT) was conducted on Damon…The case was appealed by Damon who argued the District Court "abused its discretion" in concluding the PBT was reliable…

This was not the first time the PBT has come up before the Montana Supreme Court. Throughout the written opinion three cases are cited. In all three cases the court found against the PBT, specifically that the State did not provide enough evidence to prove the "statistical reliability" of the PBT….

Montana Supreme Court Justice Patricia O. Cotter wrote an 11 page dissent.
Citing previous court rulings, Cotter expressed her view.

"I am at a loss to understand why we feel so constrained to buck the well-reasoned national trend and admit these results as substantive evidence of guilt. Nothing has changed … to deem these machines magically more trustworthy than they were just a few months ago, or to justify this about-face in our jurisprudence," Cotter wrote in conclusion of her remarks.

If rules get in the way of convictions, change them….

Stretching the Language of DUI Laws

It has long been a basic tenet of law that the language of criminal statutes must be reasonably interpreted, and if there is any ambiguity in that language the statute must be interpreted in favor of the defendant.  As the United States Supreme Court has clearly stated:

First, as we have recently reaffirmed, “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”….This principle is founded on two policies that have long been part of our tradition. First, “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.”…Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.  (cites)  Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.  [Emphasis added.]  U.S. v. Bass, 404 U.S. 336 (1971).

Except, apparently, in drunk driving cases.  In yet another example of what I have repeatedly referred to as “the DUI exception to the Constitution”, police, prosecutors and judges continue stretching the language of drunk driving statutes to ludicrous extremes in their effort to encompass as many citizens in the DUI dragnet as possible.

Most states have statutes with language essentially similar to that of California:

It is unlawful for any person who is under the influence of any alcoholic beverage or drug…to drive a vehicle.

The meaning of “drive” would seem fairly clear to any reasonable person.  Yet, I have reported cases where citizens have been convicted of pushing the vehicle after running out of gas, of sitting in a parked car with the engine off, and even of sleeping in a parked vehicle.  In each case, judges have broadly interpeted the language of the DUI statute in favor of the prosecution.

Similarly, the word “vehicle” would seem fairly clear.  Yet, I have posted about cases where citizens were convicted of drunk driving on bicycles, lawn mowers, wheelchairs – and, yes, even horses.

Somehow, the words of Lewis Carroll keep coming to mind:

“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”