Monthly Archives: May 2006

Supercops: The Smoking Gun

I posted last month about how some DUI cops intentionally make false arrests so that the cases will go to trial — resulting in a lot of overtime pay. An example was given of the Houston Police Department, where some DUI cops were making more than top city and department officials — one pulling in $172,000 a year. When confronted with the facts, department officials brushed the issue aside as simply "aggressive law enforcement".

Apparently, the fraudulent nature of the practice was not unkown to the administration at the time of the story — nor was it limited to DUI officers. The following is from Tuesday’s Houston Chronicle:

‘05 Memo Told HPD Chief of


Captain reported officers scheduled court appearances for personal gain

A Houston police commander alerted Chief Harold Hurtt last year that officers were manipulating court appearances to rake in extra overtime, according to a memo obtained by the Houston Chronicle.

The two-page letter, released under the Texas Public Information Act, states that accident investigators participated in an "intentional scheme" to add themselves unnecessarily to court dockets for their own "personal gain."

"This practice, in my view, is costing the Department tens of thousands of dollars in unnecessary court overtime expenses," wrote Capt. Michael Luiz, a 25-year veteran who supervises the Traffic Enforcement Division.

Police overtime has come under increased scrutiny since the Chronicle reported last month that a senior officer, William Lindsey Jr., was paid $100,000 last year working DWI cases, pushing his total pay over $170,000. The Chronicle also reported that more than 20 officers and sergeants were paid at least $50,000 in overtime during 2005, and that 122 of them made six-figure total pay.

Department officials have characterized the overtime as the unavoidable result of specially trained, aggressive officers making traffic stops or DWI arrests and then earning overtime at later court hearings. The Luiz memo, sent to Hurtt in January 2005, is the first indication that a high-ranking police official had concerns otherwise…

Hurtt and other police commanders who received copies of the memo did not respond Monday to requests for interviews. Luiz declined to comment.

How to make a million in the DUI business

Driving After Midnight = Probable Cause to Stop for DUI

The only thing unusual about the following news story is that this officer was truthful about a common practice most other officers deny:

Officer Testifies Everyone a DUI Suspect After Midnight

Minot, ND. May 11 –  Be aware that if you're driving around after midnight you are­ a drunk driving suspect, apparently in the eyes of at least one law enforcement officer ­.

Highway Patrol Trooper Ryan Hoffner testified in Northwest District Court in Minot April 21 that "It is assumed that everyone on the road after midnight is a suspect for driving under the influence." The statistics, he claims, bear that out…

According to court records, in the early morning hours of Nov. 13, 2005, Darren Lee Bachmeier was stopped by Hoffner on North Dakota Highway 28 between Carpio and Berthold…

Bachmeier denied any erratic driving. His passengers likewise stated they did not observe any erratic driving by Bachmeier, according to the hearing record.

"Hoffner testified that he had not observed any violations, but apparently acting upon his assumption that everyone on the road is a suspect, left U.S. Highway 52, and began to pursue the observed vehicle on Highway 28," the record said.

Hoffner testified he pushed his patrol vehicle to at least 80 mph in order to close the distance between his vehicle and the vehicle he was pursuing. The speed limit on Highway 28 is 65 mph, the document pointed out.

Bachmeier argued that Hoffner had to be traveling well in excess of the speed limit to close the distance as rapidly as he did. Bachmeier asserts Hoffner had to exceed speeds of 100 mph in order to close the distance…

(Judge Gary) Lee wrote, "Officer Hoffner freely admits that he had seen nothing to raise any suspicion that the Bachmeier pickup had violated any laws. He had no reason to believe that Bachmeier was a violator. His only reason to suspect Bachmeier was his assumption that anyone on the road after midnight is suspected of driving under the influence."

Lee also had some harsh words for the state during the hearing.

"Almost as incredible to the court is the state's reply to those actions. The state's reply is simply, 'so what.' Apparently, the state's position is that it is entirely justifiable for law enforcement to ignore the laws, violate the laws, potentially endanger life and property of others through high speed late night vehicle chases, so long as in the end an arrest is made."

"The state's attorney is responsible for the enforcement of all law. Turning a blind eye to violations of law, especially when committed by trained law enforcement officers, seems to be in derogation of that duty," Lee wrote.

So, no probable cause to stop and the gutsy judge throws the case out, right? Wrong. The "DUI exception to the Constitution" kicked in:

He added, "All that being said, however, the question before the court is whether this conduct constitutes outrageous government conduct. In this case, it cannot be said that Hoffner's actions rise to the level of compelling due process to bar this prosecution."

"True, he drove at an excessive rate of speed on a rural stretch of highway, late at night. There was only one other car that he knew to be on the road. Had Hoffner actually seen any suspicious activity, or other traffic violations, his conduct would have been justifiable under (state law)."

"Nor does the state's apparent disregard for the law it is duty bound to enforce arise to the level of outrageous conduct."

Lee then denied Bachmeier's motion to suppress. "The matter will not be dismissed for outrageous governmental conduct," he ordered.

Bachmeier's case will now be scheduled for a jury trial. No trial date has yet been set.

The judge seems to have overlooked the Fourth Amendment to the Constitution.

(Thanks to Jeanne M. Pruett.)

Yet Another DUI “Loophole” Plugged

As I mentioned in an earlier post, defense attorneys continue to be frustrated in their attempts to find out how specific breath testing machines are programmed to work.  The manufacturers hide behind a "trade secrets" wall, and prosecutors in collusion with them profess inability to obtain the information.  And the accused citizen continues to face "trial by machine" — with the main "witness" immune from cross-examination.

After judges in a number of Florida counties finally ordered prosecutors to turn over the information or have the tests suppressed, state legislators decided to plug this legal "loophole" (or, as it is known to some of us, "due process"):

Legal Loophole in DUI Cases Could be Tossed

Orlando Sentinel.  The Florida Legislature voted Thursday to close a gaping loophole in a state law that had resulted in hundreds of breath-alcohol tests being thrown out of court.

By a unanimous vote, the House outlawed the release of computer-software secrets at the core of the breath-alcohol machine used by every law-enforcement agency in the state.

The bill, approved earlier by the Senate, now goes to Gov. Jeb Bush, who has not indicated whether he will sign it into law….

For 1 1/2 years, defense attorneys have argued in counties across Florida that state law required prosecutors to release the software information. Without it, there's no way to know whether the breath-alcohol test unit works properly, they said.

A few judges, especially in Seminole County, agreed, banning juries from learning about breath-alcohol test results if the state didn't surrender the Intoxilyzer 5000's software source code.

Prosecutors said they couldn't release the source code because they didn't have it. The machine's manufacturer, CMI Inc. of Owensboro, Ky., says the code is a trade secret.

The legislation passed Thursday requires prosecutors to release details about breath-alcohol test results, but not about how the machine works. It also bans judges from ordering prosecutors to produce any information not in their possession.

"It's a great thing," said Maj. Jim DiBernardo of the Miami-Dade Police Department and state policy director for Mothers Against Drunk Driving…

Defense attorneys questioned the constitutionality of the legislation and said they would continue to challenge the machine's accuracy.

Prosecutors were thrilled with the vote…

Bear in mind that the primary evidence against a citizen accused of drunk driving is the breathalyzer.  In most cases, the accused is charged with two offenses:  DUI and driving with a BAC of .08% or higher.  In the former charge, the breath reading establishes a presumption of guilt; in the latter case, the breath reading is essentially the only evidence.  Yet, defense attorneys are blocked from finding out how the machine is programmed to work — and, thus, whether it was accurate.

(Interesting aside:  the spokesperson for the Miami-Dade Police Department is, apparently, also state policy director for MADD.)

(Thanks to William C. Head.)

For Sale: Breathalyzers….Cheap

No, we’re not talking about one of those little gizmos you can buy down at Sharper Image.  These are the real deals, the actual law enforcement breath-alcohol machines currently being used at police stations across the country…and legally admissible in court to prove guilt beyond a reasonable doubt.

What?  You thought the manufacturers had agreements with police agencies not to sell these things to private citizens (particularly not to defense attorneys)?  Well, yes, but then we live in the era of….eBay.  A few examples on eBay today:

CMI Intoxilyzer 5000  (Used, but in “good condition” — except it keeps reading “printer error”): starting bid $249

Intoximeter AlcoSensor IV (portable package complete with printer charger, dry gas ethanol for calibration and 200 mouthpieces):  starting bid $3000

Alcohawk Breathalyzer Police Kit (new portable 2006 model):  “Buy it now” for $189.99

CMI Intoxilyzer 5000 (20 used units available, “from an Arizona government facility”): “Buy it now” for $149.99 each

The Intoxilyer 5000 is the machine most commonly used by police agencies in the U.S. today.  Just think:  With a half-hour of self-study, you too can calibrate and operate one of these things — just like your local police….and with the same “beyond a reasonable doubt” accuracy.

Another DUI “Loophole” Plugged

Another news story fairly typical of the attitude toward constitutional rights when it comes to drunk driving:

Lawmaker Seeks To Erase Drunken Driving Loophole

Issue Centers Around Evidence Of  Breathalyzer Refusal

HYANNIS, Mass. A Cape Cod legislator wants to close a loophole in the state's drunken driving laws that bars juries in criminal trials from being told whether or not a defendant refused to take roadside tests or a Breathalyzer. But he could be up against the state constitution…

The barring of refusal evidence hinges on the state Constitution, which contains a provision safeguarding citizens from self-incrimination, Nardone said. In response to a legislative inquiry in 1992, the Supreme Judicial Court ruled that allowing refusals would create a catch-22 situation, where refusing or taking the test could lead to an implication of guilt.

Another one of those darned "loopholes": the Constitution. No problem, just use the old "DUI exception".