Monthly Archives: June 2007

How to Be a DUI “Super Cop”

Simple: arrest innocent people — lots of them — and falsify evidence:  

Top DUI Deputy Fired; Convictions Questioned

Tampa, Florida.  June 16  – Hillsborough County's top deputy for making DUI arrests was fired last month after an internal investigation found he might have sent innocent people to jail, according to documents…

Much of Brock's personnel file at the sheriff's office is thick with commendations. He has earned awards for vigilance in removing impaired drivers from the roads. Supervisors praised Brock, 38, in annual performance reviews, calling him "highly motivated" and a leader in arrests for driving under the influence…

From October 2005 to October 2006, Brock arrested 313 motorists for allegedly driving while impaired, officials said. In 40 percent of those instances, he did not use his in-car video camera.  Even when he did record a video, his report sometimes conflicted with evidence on the tape, officials said.

On Oct. 25, 2005, Brock noted that a defendant with a .01 percent blood alcohol content had trouble walking, lost her balance and could not perform field sobriety tests adequately. The video of the arrest showed differently, officials said. The woman did not lose her balance and did not show signs of impairment.

"I don't prescribe to the theory that somehow you have to be .08 to be drunk or impaired," Brock told investigators.

Brock denied to investigators that he was trying to boost his arrest totals…

At least once, he wrote two versions of the same DUI arrest report, officials said. He sent prosecutors the second version, written from memory and without getting the approval of his supervisor. It constituted a misdemeanor for falsifying records…

After receiving the letter, sheriff's detectives audited a year's worth of Brock's DUI arrests – 313 cases – and the results alarmed them.  In 58 arrests, the defendant blew a blood alcohol content below .08 percent. In 41 of those cases, no urine sample was drawn, despite agency policy.

The tip of the iceberg.  (Does this clarify anything, Trooper 5157?)

(Thanks to Jay Norton.)

Dear Trooper 5157…

I received the following comment yesterday from “Trooper 5157″ in reply to my recent post, “Report: Breathalyzers Outdated, Unstable, Unreliable“:

If you would, please take time to devote just one blog entry on how you may suggest to a police officer how fair and accurate DUI arrests can be made.

I suspect that you believe some drivers to be legitimately under the influence of alcohol. Speaking strictly to the thought of a clearly and absolutely drunk driver, how would you suggest the officer stop, investigate and ultimately arrest that driver.

Your website seems focused on disregarding every tool, every method, every way of training an officer has at his/her disposal. Is there no valid way, no legitimate circumstance, in which you envision a driver being arrested for DUI? What do you accept as a valid DUI arrest?

If I understand your (rhetorical) question, Trooper 5157, you are suggesting that I present a complete course in correct DUI investigation procedures with a single blog post. Perhaps you can appreciate the futility of your suggestion when I point out that much of my 1242-page book deals with that very issue.

I take your “question” as to whether I can envision any DUI arrest as valid to be similarly rhetorical. My answer, however, is that cops are human: many are poorly trained and/or less than conscientious, some are incompetent, lazy or dishonest. Let me ask you in return: Do you really believe that all DUI arrests are valid? That all officers are competent, well-trained and honest in their reports and testimony? And if not, then who — if not a defense attorney — will ever reveal that in any given case? And what — if not the prospect of cross-examination — will ever serve to motivate cops to do things right?

Yes, I believe the majority of those arrested are probably guilty. And after 37 years of prosecuting and defending, I also believe that there are more innocent people wrongfully arrested for this offense than for any other. Further, I believe the level of competence among officers handling DUI investigations is generally lower than in other areas of law enforcement I have encountered.

Every attorney in my firm is law enforcement-certified in operation of PAS/PBT breath alcohol devices. Every attorney in my firm is NHTSA-certified in standardized field sobriety tests. And few of the officers they cross-examine are. Why not?

So, Trooper, maybe the answer to your rhetorical question about how I would “suggest to a police officer how fair and accurate DUI arrests can be made” is also a bit rhetorical: Read my book, and get at least the training my attorneys get.

Report: Breathalyzers Outdated, Unstable, Unreliable

Unique among criminal offenses, a citizen accused of drunk driving faces trial by machine.  If the breathalyzer indicates a blood-alcohol concentration of .08% or higher, he will usually be charged with two offenses:  driving under the influence of alcohol and driving with a BAC of .08% or higher.  Amazingly, he will be presumed by law to be guilty of both offenses (see my earlier post ”DUI and the Presumption of Guilt”) and the burden of proof will be shifted to the accused (see “If You Can’t Prove It, Make the Defendant Disprove It”).

Prosecutors continue to assure jurors that these state-of-the-art breathalyzers are highly accurate scientific instruments — so accurate and reliable that they can feel comfortable finding the defendant guilty beyond a reasonable doubt based solely upon the machine.

And yet….Law enforcement agencies are beginning to abandon them in favor of blood tests (see “So If Breathalyzers Are So Accurate…”).  Just how accurate and reliable are these “state-of-the-art” breath machines? 

Not very, according to internal documents from the State of Virginia’s Department of Forensic Science. 

Attorney Robert F. Keefer of Harrisonburg, Virginia, filed a demand under the Freedom of Information Act for records concerning the machine used in that state, the Intoxilyzer 5000 (the most commonly used machine in the country over the past 15 years).  Keefer was finally successful in obtaining internal documents from the Department that were submitted in support of an application for funding to replace the breath machines used throughout Virginia with newer models.  The following are direct quotes from those documents:

Funding of this request will allow the agency to replace instruments (Intoxilyer 5000 instruments) that are 9-10 years old and for which replacements are not available.  These instruments are outdated and the manufacturer is no longer maintaining parts and not capable of fully supporting them since current instruments demonstrate two further generations of technological advancement.

In reponse to the request form’s question, “What are the expected results to be achieved if this request is funded?”, the following response was given:

To replace outdated, unstable and unreliable breath alcohol instrumentation used by police officers throughout the Commonwealth to certify whether a driver is or is not impaired.

Unstable and unreliable.  But do you think this is what prosecutors in Virginia tell juries?  Of course not.  They tell them exactly what they always tell them:  accurate, reliable, state-of-the-art proof…guilty beyond a reasonable doubt.

And do you think it is just Virginia that uses the Intoxilyzer 5000?  It remains one of the most commonly used machines in the country (including by my own home town cops, the Long Beach Police Department).

So how many thousands of innocent American citizens do you think have been wrongly convicted based upon these marvels of science?  And how many more will continue to be?

How to Raise Your Blood-Alcohol with Rolaids

Few of us realize that alcohol is actually produced within our bodies, independent of any drinking — a phenomenon scientists refer to as the autobrewery syndrome.  (See my earlier post  Immaculate Intoxication.)  The usual cause is fermentation created by the presence of yeast and glucose in the system.

Internally-produced alcohol can be caused by other things as well. If an individual was taking antacids such as Tums or Rolaids, for example, he may have created a situation in which his body was manufacturing alcohol internally. Scientific literature indicates that antacids change the gastric acidity in the stomach — which can lead to alcohol production by resident bacteria…. and elevated blood-alcohol readings on a breathalyzer.  See “Effects of Cimetidine Treatments on Ethanol Formation in the Human Stomach”, 19(6) Scandinavian Journal of Gastroenterology 853 (1984); and “Effects of Antacids on Alcohol’s Reaction”, 5(5) Alcoholism 28 (1985).

The Germ of Dissolution

Over more years than I care to admit, I’ve watched the gradual erosion of constitutional rights in this country. Nowhere has this been more evident than in the unending “War on Drunk Driving” — that politically expedient phenomena I’ve repeatedly referred to as the “DUI Exception to the Constitution”. The examples are legion: roadblocks, double jeopardy, denial of counsel, destruction of evidence, self-incrimination, presumptions of guilt, denial of due processad nauseum.

OK, you say, but they’re just drunk drivers, right? Think about that for a moment. And think about tommorrow: If the Supreme Court waives the Fourth Amendment for “sobriety checkpoints” today, what are they prepared to do tommorrow? If that same Court can sanction the routine destruction by police of critical evidence in DUI cases today…

It is interesting that many of the Court’s actions have reversed attempts by the state courts to protect their citizens’ freedoms. In Michigan v. Sitz, for example, the Michigan Supreme Court held that DUI roadblocks were a violation of the Fourth Amendment — and the U.S. Supreme Court reversed. (On remand, the Michigan court resinstated their original result by relying upon their own state constitution.) In South Dakota v. Neville, that state’s Supreme Court held that offering evidence of a refusal to submit to breath alcohol testing was a violation of the Fifth Amendment — and, again, the U.S. Supreme Court reversed. (And, again, on remand that state’s court thumbed their noses at Washington by relying upon their state constitution to protect their citizens.)

Thomas Jefferson saw it coming quite clearly nearly two centuries ago:

It has long been my opinion, and I have never shrunk from its expression,… that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary–an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.

(Thanks for the quote to Charley Hardman.)