Monthly Archives: September 2006

Just Another Drunk Driver

I've posted in the past about how some medical conditions can cause symptoms that imitate intoxication (see, for example, "Diabetes and the Counterfeit DUI"), resulting in the convictions for DUI of thousands of innocent people. In this case, it resulted in death…

Clement Probe Showing NoWrongdoing,

Police Lawyer Says

No officers relieved of duty while department investigates

East Chicago, Sept. 28 An ongoing internal investigation by East Chicago police into the attempted arrest of diabetic Jerome Clement so far shows no wrongdoing, according to the Police Department's legal adviser. No officer involved in the altercation has been placed on administrative leave while the department investigates, attorney Thomas Ryan said the day following the release of the coroner's findings in the death of the 39-year-old welder…

Clement died Sept. 8 from what the coroner determined to be natural causes, resulting from complications of the diabetes Clement suffered since the age of 11.

Based on hospital records, the coroner determined Clement was not intoxicated as suspected by police.

Police reports indicate a scrap yard employee had called police a little after 10 a.m. on Aug. 24 after seeing a dazed Clement drive onto the property and stop the car.

At least four of seven responding officers, believing Clement to be drunk, struggled with Clement trying to arrest him, according to the police reports. Called to treat Clement for pepper spray and bleeding from the nose, paramedics suggested to police Clement was suffering from a diabetic attack. During treatment at the scene for the diabetic attack, Clement went into cardiac arrest.

(Thanks to Charles Rathburn, Fort Wayne, IN.)

Through a Glass Darkly: No Jury Trial in DUI Cases?

A couple of days ago, I posted some comments (“Through a Glass Darkly”) in which I concluded by asking, among other things, “Remember when…there was a Constitutional right to jury trial in DUI cases?” Since then, I’ve received emails asking me what I was talking about: There are jury trials in DUI cases.

Yes, there are jury trials in DUI cases…in some states…for some DUI cases…for now.

A couple of years ago, I wrote a piece (“DUI and the the Disappearing Right to Jury Trial”) in which I pointed out that in New Jersey, Hawaii, Nevada, Arizona and a growing number of states that right is being taken away.

Let’s just take another look at that endangered document again, specifically the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…

Let me repeat that: “In ALL criminal prosecutions…”. Not in “some”. Not in “most”. All.

So how can they deny the right to jury trial in a DUI case? As is so often the case, by playing games with words.

It started some years ago when the Supreme Court (the same court that later found an “exception” to the Fourth Amendment for DUI roadblocks) decided that the framers of the Constitution didn’t really mean “in ALL criminal prosecutions”. So they changed one little word. They said what the framers really meant was that there was a right to jury trial in serious criminal prosecutions — not in petty ones. Duncan v. Louisiana, 391 U.S. 145 (1968).

Well, what about DUI cases? In most states, they involve potential sentences of six months in jail — and fines, license supensions, DUI schools, ignition interlock devices, 3-5 years of probation. And the possibility of even stiffer punishment for a repeat offense. Doesn’t that show that lawmakers think drunk driving is pretty serious?

Well, a Nevada citizen accused of DUI and (inevitably) convicted by a judge took the case up to the U.S. Supreme Court. With all the additional punishment over and above the six months in jail, his attorney argued, wasn’t it “serious” enough to have a right to a jury?

No, the Court held: “Considering the additional statutory penalties as well, we do not believe that the Nevada Legislature has clearly indicated that DUI is a ’serious’ offense.” Blanton v City of North Las Vegas 489 U.S. 538 (1989).

From Lewis Carroll, Through the Looking Glass:

“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.”

Through a Glass Darkly

A look into the (near) future of Big Mother's "War on Drunk Driving":

The Yomiuri Shimbun
(Japan), Sept. 22. The Construction and Transport Ministry has started discussions with automobile manufacturers on ways to promote the use of anti-drunken driving devices in vehicles…

Anti-drunken driving devices called alcohol ignition interlocks prevent cars from starting if alcohol is detected. The ministry will encourage automakers to install such devices in their products and has plans to establish the criteria for this equipment. Mothers Against Drunk Driving (MADD) Japan, a civil organization has been collecting signatures to make it mandatory for chronic drinkers to install the equipment in their cars….

Major automobile manufacturers, including Toyota Motor Corp. and Nissan Motor Co., have launched projects to develop vehicles that have the equipment installed. According to the ministry, there are various ways to determine a driver's intoxication level.

In Sweden, a trial car has been released that detects the alcohol level when a driver breathes on the ignition or the seat-belt buckle. There also has been research done on equipment that can detect alcohol levels from a driver's skin when he or she touches the steering wheel. However, who will pay the cost of the equipment is yet to be decided.

There also remains a problem on how to cover loopholes–for example, how to prevent people who are not driving from breathing into the equipment on behalf of drivers. According to sources, equipment that confirms the identity of the driver through a preregistered voice pattern has been developed abroad.

Remember when you could just stick a key in the ignition? Or when there were no roadblocks? When guilt or innocence was not decided by a machine? When there was a Constitutional right to jury trial in DUI cases? When you were legally presumed innocent? When….

Not Guilty by Reason of Alcoholism?

Contrary to the deceptive statistics publicized by MADD (see “A Closer Look at DUI Fatality Statistics”), the number of deaths caused by drunk driving has not decreased significantly since the beginning of increasingly harsh penalties years ago. And so new laws are passed further lowering legal limits and raising penalties….ad infinitum.

The simple fact is that most DUI-related deaths are caused by a relatively small group of “problem drinkers”. These individuals are typically characterized by recidivism (repeat offenses), unusually high blood-alcohol levels – that is, alcoholism. And, since it is a disease, they are simply not deterred by criminal sanctions.

By now, most experts recognize that alcoholism is a disease, not a choice. And you don’t treat a disease with incarceration. If you throw an alcoholic in jail for six months, on the day he walks out he will likely go to the first bar he finds and resume drinking. What has been accomplished?

Apparently, a small number of more enlightened judges are beginning to come to the same conclusions. Consider the following Los Angeles Times article (involving a judge sitting in one of my home courts):

Positive reinforcement is a central tenet of Orange County’s DUI court, which opened in October. It is one of only two courts of its kind in California but is one of a growing number nationwide. They’re designed to reduce recidivism among drunk drivers by providing encouragement and strict supervision to help treat addiction rather than imposing jail sentences or fines….

“This is a major change in direction for courts,” (Judge Carleton P.) Biggs said. “People are starting to realize our traditional approaches don’t work’. I wouldn’t be surprised in years to come to see this approach taken a lot more”….”

We recognize incapacity due to mental disease: the plea/verdict is “not guilty by reason of insanity” (NGI). The defendant is not simply set free, but is hospitalized for treatment of the disease. Why not treatment for problem drunk drivers who suffer from the (largely genetic) disease of alcoholism? In other words, why not recognize a plea of “not guilty by reason of alcoholism” (NGA)?

Would you prefer to have a chronic drunk driver off the roads for a few months — or in control of his disease?

The 19 Driving Symptoms Cops Look For

‘Ever wonder just what the police are looking for when they’re out at night looking for drunk drivers?  And how you can avoid looking like one?

The following list of DUI driving symptoms, from a publication issued by the National Highway Traffic Safety Administration (DOT HS-805-711), is widely used in training officers to detect drunk drivers on the roads.  After each symptom is a percentage figure which, according to NHTSA, indicates the chances that a driver is under the influence of alcohol.  For example, NHTSA’s research indicates that “the chances are 65 out of 100″ that a driver who is straddling a center or lane marker has a blood-alcohol concentration of .10% or higher (the pre-.08% standard).

Turning with wide radius     65
Straddling center or lane marker     65
Appearing to be drunk     60
Almost striking object or vehicle     60
Weaving     60
Driving on other than designated roadway     55
Swerving     55
Slow speed (more than 10mph below limit)     50
Stopping (without cause) in traffic lane     50
Drifting     50
Following too closely     45
Tires on center or land marker     45
Braking erratically     45
Driving into opposing or crossing traffic     45
Signalling inconsistent with driving actions     40
Stopping inappropriately (other than in lane)     35
Turning abruptly or illegally     35
Accelerating or decelerating rapidly     30
Headlights off     30

Just to reenforce this as a mathematical science thoroughly impressive to juries, NHTSA further claims — and officers are taught — that there is also a quick-and-easy formula for multiple symptoms:  “When two or more cues are seen, add 10 to the highest value among the cues observed”.

Of course, if these suspiciously precise figures are to be believed, then almost half of the folks who tailgate you every day are drunk – and almost half of the time you don’t brake smoothly you are, too.  Further, only 60% of drivers “appearing to be drunk” to the officer actually are. (Query:  How does a driver “appear to be drunk” to an officer following 100 feet behind? Slurred speech?  Alcohol on his breath?)  And speeding — one of the most common reasons for pulling DUI suspects over — is not even on the list. 

Science marches on…