Monthly Archives: July 2008

Drunk Driving – Without Driving

I’ve posted in the past about the ludicrous extent law enforcement and the courts will go to get drunk driving convictions — even where the accused was not driving.  See, for example, Parking Under the Influence and Pulling Over and Sleeping It Off: Still a DUI?.

But occasionally there is a ray of light from some state supreme court willing to apply minimal common sense and a modicum of fairness by admitting that drunk driving (duh!) requires driving…

Arizona Appeals Court Says DUI Charge Requires Driving

Arizona Appeals Court rejects drunk driving conviction of a man who was not driving.

Tucson, AZ. July 25  -  Recent court decisions across the country have upheld stiff sentences against those convicted of driving under the influence of alcohol (DUI), even when those individuals were either not in an automobile, or not driving at all. A New Jersey appellate court ruled last year, for example, that a man who tried to sleep off a night’s drinking in his truck should pay $4000 in DUI fines. A three-judge panel of the Arizona Court of Appeals turned the other direction on Wednesday. It concluded that drivers should be encouraged, not discouraged, to pull over when impaired.

The court’s ruling came in the case of Vincent Zaragoza who on April 29, 2006 went and sat in his car with the key in the ignition while drunk. Tuscon Police Officer Daniel Barry happened to be watching as Zaragoza stumbled into the vehicle. Barry did not wait to see if Zaragoza might make an attempt to start the car. Instead, he immediately put the man — whose blood alcohol reading was an estimated .357 — under arrest.

Zaragoza explained his actions that night in court testimony. He said that he had just been thrown out of an apartment after an argument with his girlfriend. He went to his car to sleep and only put the key in the ignition to turn on the radio and lower the window. A Pima County judge instructed a jury to convict Zaragoza if they believed he had "physical control" of the vehicle and his "potential use" of it could have been dangerous. Zaragoza was then found guilty of driving under the influence and jailed for four months and was sentenced to an additional five years of probation. The appeals court reversed this lower court decision on the grounds that the judge’s instructions used a flawed understanding of Arizona law to mislead the jury.

"The statute criminalizes only ‘actual’ control — not ‘potential’ use," Judge Peter J. Eckerstrom wrote for the unanimous panel. "Indeed, many impaired adults have ready access to a vehicle, and therefore the potential use of one, but retain the sound judgment not to drive."

(Thanks to Andre)

Judges Told They Have “Different Role” in DUI Cases

Most of you out there probably thought that citizens accused of drunk driving were afforded the same constitutional rights as citizens accused of any other crime.  Included in this, presumably, is the right to have a fair and impartial judge hearing your case.


Consider the following excerpts from a website entitled "The Court's Role in Reducing the Incidence of Impaired Driving: A Resource for General Jurisdiction Court Judges".   The site is maintained by The National Center for State Courts near Washington, D.C., which provides seminars, conferences, research and educational materials for judges nationwide.

"What is the role of the courts in DUI Cases?"

In DWI cases, courts can have a much broader role than in many other types of cases. Through its interaction with law enforcement, prosecutors, defense attorneys, defendants, the public, and the press, the court establishes a tone toward DWI cases in the community. This is evident when the court addresses a defendant at sentencing to stress the severity of a DWI offense, invites school groups to attend DWI trials or dockets, or explains to law enforcement procedural shortcomings following unsuccessfully prosecuted cases. Judges, through their roles on the bench and in their personal lives, are leaders in the community and the attitudes they express are critical to shape public attitude toward DWI prevention and enforcement.  (Emphasis added.)

Hmm…So the judge's role in DUI cases is "broader" - to "establish a tone toward DUI cases in the community", to "shape public attitude toward DWI prevention and enforcement", and to help the police get more convictions.  I guess high conviction rates, Draconian sentences and turning a blind eye to constitutional violations helps establish that tone. 

After 39 years of practice, I can still remember when judges were supposed to be impartial, even in drunk driving cases.

(Thanks to Jeffrey C. Meadows, Esq.)

Drunk Biking

Latest news from MADD’s War on Drunk Driving…

Macon Man Charged with DUI After Falling Off Bicycle

Macon, GA.  July 24  -  A 38-year-old Macon man was charged with DUI after an officer spotted him weaving as he rode a 5-speed boys’ bicycle on Jeffersonville Road, according to the Macon police…

The officer smelled alcohol on (Clifton) Taylor’s breath and clothes and noticed his eyes were bloodshot, according to the report.

He was charged with DUI after failing road sobriety testing, according to the report. Bicycle riders in Georgia are subject to the same alcohol laws as drivers…

Clifton is being held at the Bibb County Law Enforcement Center on $1,200 bond, according to jail records.

No, this is not a joke.

Cops Using Impounded Cars as Personal Rental Fleet

So you you were busted for drunk driving and your car was taken by the police and impounded for 30 days. Ever wonder what’s happening to it?

Missouri: Police Caught Driving Impounded Cars

Police in St. Louis seized cars, then freely drove them for months at a time. Perk extended to troubled daughter of police chief.

St. Louis, Mo.  July 20  -  Cars seized from motorists are being used as the personal rides of police officers and their relatives in St. Louis, Missouri. St. Louis Post-Dispatch investigative reporters uncovered the scandal while tracking down how Aimie Mokwa, 33, daughter of Police Chief Joe Mokwa, ended up driving vehicles registered to St. Louis Metropolitan Towing and its subsidiaries.

Like many cities across the nation, St. Louis has adopted an ordinance giving police officers the ability to grab automobiles from people suspected, not necessarily convicted, of certain crimes. Cars not recovered within thirty days are declared the property of St. Louis Metropolitan Towing, which splits profit from towing fees with the city. Such arrangements can generate millions in revenue for municipalities.

The St. Louis program had an additional benefit. The tow yard became a virtual rental car agency for local police officers who would take out "abandoned" cars for their own free, personal use for months at a time. The "test drive" privilege extended also to Aimie Mokwa.

If the officers and their relatives enjoyed the vehicles, they were offered the opportunity to purchase them at discounts of up to 75 percent. For example, Aimie Mokwa "rented" a one-year-old Dodge Neon that had been impounded in May 2001. In September 2002 she flipped the Neon after crashing into two parked cars on perfectly dry pavement.

Aimie Mokwa replaced the Neon with a 1999 Ford Escort that she purchased from the tow company for $1100, even though its book value was at least $3750. She rear-ended another car with the Escort in January 2003. Officers investigating the collision determined she had a blood alcohol level of 0.17, but they did not charge her with drunk driving. In December 2006, Aimie Mokwa bought a 2004 Chevy Malibu from the tow yard for $1500, despite the vehicle having a book value of at least $5850. Last October, she bought a 1999 Dodge Dakota for $850, even though the vehicle was worth at least $5025.

(Thanks to David O’Shea)

Cops Cheating on Breath Test Exams

In the Who-will-guard-the-guardians? department:

Inspector General: Canton Troopers Cheated on Breathalyzer Exams

Columbus, OH.  AP, July 17  -  An Ohio Inspector General report says state troopers assigned to the Highway Patrol’s Canton post cheated on yearly exams required for law enforcement officers who give breathalyzer tests.

The report says Trooper Anthony Maroon made copies of an exam he took in 2007 and shared answers with other troopers when he retook the test in April.

The report also says there was evidence of related cheating by troopers on tests given on four other dates in 2007 and 2008.

The inspector general says six troopers cheated on exams, another trooper received exam answers from Maroon and five patrol sergeants knew about the cheating but didn’t intervene.

I wonder how many citizens have been convicted based on breath tests given by cops like these?

(Thanks to Andre at The Newspaper.)