Monthly Archives: October 2008
Imagine the Presiding Judge of a courthouse telling the other judges, "There have been too many acquittals lately. I’ve reviewed them and disagree with most of your ’not guilty’ verdicts. All future acquittals will be submitted to me for review, and if I disagree with them you will be counselled and your fitness to continue serving as a judge will be reviewed."….
When a citizen is booked on suspicion of drunk driving, his driver’s license is immediately suspended by the police if he (1) takes a breath test indicating .08% blood-alcohol or higher, (2) takes a blood test (even though results are unknown until later lab analysis), or (3) he refuses to be tested. In essence, the cop is the judge, jury and executioner.
But what happened to due process, to fundamental fairness? Well, the citizen has a right to appeal the suspension by demanding an administrative hearing where he can challenge the DMV’s evidence, present his own evidence and argue his case.
In California, as in most states, this is done at a hearing conducted by the Department of Motor Vehicles. As I’ve pointed out in previous posts, however, this "hearing" is anything but a fair and impartial one. See Due Process and Automatic License Suspensions.
1. The government agency that is trying to sustain the suspension — the DMV — is the same one conducting the hearing.
2. Hearsay police documents – which cannot be cross-examined – are admissible and commonly make up the Department’s entire case.
3. If the citizen wants to cross-examine the officer, he has to subpoena him at his own cost (service of the subpoena and the officer’s overtime salary) for the privilege.
4. The prosecutor is not a real prosecutor, nor even an attorney. Nor, in most cases, even a college graduate. He is an employee of the DMV.
5. The judge is also not a real judge — not even, as in other states, an ALJ (administrative law judge). In fact, this "judge" is also not an attorney. Nor a college graduate. This "judge" is, like the prosecutor, an employee of the DMV with a high school degree.
6. The "prosecutor" and the "judge" are, in fact, the same person. That’s right, this supposedly impartial hearing officer is both prosecutor and judge. He can object to the citizen’s evidence — and then rule on his own objection. He presents his case — and then decides if he wins or loses.
Amazingly, however, a few of these DMV hearing officers try to do the right thing. So what happens if some hearing officer starts developing a conscience and makes a few decisions in favor of the citizen?
The following is an internal memorandum provided to me by a very reliable source which the manager of the California DMV’s San Diego hearing office circulated to his hearing officers yesterday. (Note: a "set aside" is the term used when a license suspension has been reversed by the hearing officer.)
From: [Manager, San Diego Driver Safety Office]
To: [names of 14 hearing officers]
Sent: Monday, October 27, 2008 2:12pm
Subject: Set Asides
This is a reminder to place your set asides in the SET ASIDE basket in the file room. I run a weekly report to confirm that the set asides are being placed in the basket. Some of you have not been putting the set asides in the bin.
To date, I have reviewed 17 set asides. The results are as follows:
– 6 good decisions
– 4 are questionable — needing review of the [tape] recording to make determination
– 7 are unwarranted set asides
These results are terrible, in that we have no rookie hearing officers. Should you be responsible for any of the 7 unwarranted set asides, your manager will be discussing the case(s) with you, if they haven’t already.
I will be publishing my findings on each of your cases — good and bad ones — minus the hearing officer name and case info. Should you wish to discuss any of these cases with me, feel free to do so.
In reading this "smoking gun" memo, ask yourself the following questions:
1. Why are are the decisions — verdicts — of these administrative judges subject to further review by the DMV’s office manager? To identify and weed out hearing officers who are not sustaining enough DMV suspensions?
2. Why is the office manager substituting his own judgment for that of the hearing officer who heard the evidence?
3. Why are the hearing officers ordered to submit their set aside decisions for review — but not their decisions sustaining the suspension?
4. Why do supposedly independent judges have "managers"?
5. How can 11 of 17 decisions in favor of the citizen – a tiny percentage of all cases handled by the San Diego office — be determined "questionable" or "unwarranted"?
6. Why are the results "terrible, in that we have no rookie hearing officers"? Because "rookies" don’t yet have the big picture and are actually decidng cases on their merits?
7. What do you think the clear message of this memo is to all hearing officers who want to keep their high-paying jobs?
This is the supposedly "fair" hearing by an "independent" hearing officer that is given to citizens who have had their licenses taken by police. And as any DUI attorney will tell you, this same approach is found in hearing offices statewide.
Welcome to "due process" at the DMV.
A few days ago I posted about a state breathalyzer inspector who was "fixing" machines in Miami-Dade County by simply deleting evidence of malfunctions. The Florida Department of Law Enforcement fired her — but not until after she had cast doubt on as many as 10,000 DUI convictions . See How to Prove Breathalyzer Accuracy: Falsify the Records.
I concluded the post with the comment, "Do you really think this only happens in Miami?"….
Thousands of DWI Cases Put in Jeopardy
Inspector faked her checks of devices that test breath, DPS says
Houston, TX. Oct. 25 - Thousands of drunken-driving cases in the Houston area could be dismissed because of an inspector of alcohol breath test machines who didn’t conduct the examinations she claimed to have completed.
The Texas Department of Public Safety announced Friday that it suspended the certification for a woman who contracted to keep the breath test machines accurate for the Clute, Friendswood, Galveston, League City, Pearland, Seabrook, South Houston and Webster police departments.
DPS said she altered electronic records to make it appear she’d tested and adjusted the calibrations of machines when she had not.
DPS officials said the woman, an independent contractor with each of the municipalities, had been falsifying records for up to a year and that would affect at least 2,600 DWI charges. The Texas Rangers are conducting the criminal investigation.
She has not been charged with any crime…
Thanks to Bryan Hanks and Troy McKinney.
Experienced traffic patrol officers are familiar with a phenomenon which is sometimes referred to as “black-and-white fever”.
That phenomenon is simply the normal reaction of most drivers to being followed by a marked police car (painted black and white in many jurisdictions). As soon as the motorist becomes aware that a police car is following him, he becomes understandably apprehensive’and focuses his attention increasingly on the rear view mirror. As the officer continues to follow, the driver becomes tense, worried, and his concentration on driving is broken: He keeps his eyes more on the mirror and less on the road ahead. Each time the driver brings his eyes back to the road, he finds that he has drifted and must correct the course of the car back to the center of the lane.
The result: weaving and, possibly, erratic movements such as sudden increases or decreases in speed (tension can cause the foot to depress the accelerator). And, of course, these are the most commonly encountered symptoms of a drunk driver on the highway.
In other words, it is the very presence of the officer which tends to create the probable cause for suspecting a DUI.
Once the officer pulls the driver over, he gets out and approaches the car with the very human preconception that the driver is probably intoxicated. And, as we know from psychological studies, we tend to see what we expect to see: normally veined eyes appear “bloodshot”, normal but nervous speech sounds “slurred”, normal pink complexion appears “flushed”, etc.
These observations are quickly followed by the notoriously subjective and inaccurate field sobriety tests, difficult to perform under the best of conditions (see my earlier post, “Field Sobriety Tests: Designed for Failure?”)….Followed by an arrest for drunk driving.
One way to make sure that there is no evidence of a breath machine’s inaccuracy and unreliability is to simply make sure there is no record of its false results and failures…even if it means innocent people are convicted. The main thing is to maintain faith in these devices, right?
Fudged Breathalyzer Tests Questions DUI Arrests
Inspector Turned Machines Off When They Appeared About To Fail Throwing Into Doubt Thousands Of Drunk Driving Citations
Miami, FL. Oct. 16 – Defense attorneys were in a Miami courtroom on Thursday seeking a judge’s order to inspect the hard drives of every breathalyzer machine used in Miami-Dade county.
Before Judge Jose L. Fernandez, attorney Michael Catalano said, "We’re interested to find why she was unplugging breath machines so that she could cover up mistakes and not tell anybody."
This comes after the Florida Department of Law Enforcement fired the examiner who was responsible for testing all the DUI machines, alleging she failed to follow protocol with the inspections.
Defense attorneys contend it is a scandal that puts suspicion over thousands of DUI cases in Monroe, Broward and Miami Dade.
"The number of cases involved could be as many as 10,000 here in Miami-Dade County," attorney Richard Hersch explained to CBS4 reporter Gary Nelson. "The inspector who has been discharged here was on duty for about 18 months before she was discharged."
In a "notice of dismissal", the FDLE accuses analyst Sandra Veiga of having encouraged police agencies to abort tests on Intoxilyzer 8000 machines that were giving questionable results.
"What the inspector was doing," Hersch said, "was unplugging the machine if the inspection was failing, then plugging it back in; that prevented the machines from reporting the malfunctions to Tallahassee."
Do you really think this only happens in Miami?
In California as in most states, the crime prescribed by statute in the event of a death caused by drunk driving is manslaughter. In recent years, however, MADD’s "War on Drunk Driving" has encouraged prosecutors to find creative ways of charging murder. Let’s eavesdrop on a veteran prosecutor in California explaining the ropes to an ambitious young prosecutor:
Q. I wish I could get this drunk driver for murder, not just vehicular manslaughter.
A. You’re the prosecutor: You can charge him with anything you want.
Q. But how would I prove the mental state for murder, malice?
A. As you know, malice usually means there’s an intent to kill. But the law says you can imply malice.
Q. OK, but imply it from what?
A. “It is implied when…the circumstances attending the killing show an abandoned and malignant heart”. [Calif. Penal Code sec. 188]
Q. Yeah, but what the heck is “an abandoned and malignant heart”?
A. Our Supreme Court says it’s when someone “does an act with a high probability that it will result in death and does it with a base antisocial motive and a wanton disregard for human life”. [People v. Washington, 62 Cal.2d 777 (1965)]
Q. I don’t know if that’s any easier to prove. “High probability” a DUI will result in death? Anyway, the guy was just drunk: How can I prove “base antisocial motive” and “wanton disregard for human life” from that?
A. Simple: Don’t prove it, just imply that, too — from the defendant’s knowing that DUI is dangerous. [People v. Watson, 30 Cal.3d 290 (Cal.1981)]
Q. You mean all I’ve got to do is prove he knew drunk driving is dangerous, and I’ve got malice?
A. Yep. We call it a “Watson murder”.
Q. That’s a long way from “high probability it will result in death”.
A. Yeah, that sort of got swept under the rug.
Q. But how do I prove he knew it was dangerous?
A. Like everything else, imply he knew it. Show he’s got a prior DUI conviction [People v. McCarnes, 224 Cal.Rptr. 846 (Cal.App. 1986)] or he’s been to Alcoholics Anonymous [People v. Brogna, 248 Cal.Rptr. 761 (Cal.App.1988)].
Q. But what if the guy isn’t an alcoholic and has never been convicted before?
A. Just find someone who once told him drunk driving was dangerous.
Q. What if we can’t find someone who –
A. Has he ever attended a driver education class? They usually tell them that DUI is dangerous. [People v. Murray, 275 Cal.Rptr. 498 (Cal.App. 1990)].
Q. But doesn’t everybody know DUI is dangerous?
A. Of course.
Q. Then doesn’t everybody have malice if they drive under the influence?
A. Now you’re getting it.
Q. Well, if proving murder in a DUI case is that easy, why not go for the death penalty?
A. They already tried it in a North Carolina case, but the jury went for life without parole instead. We’re working on it…
Note: Judges in California now make anyone convicted of DUI sign a statement saying they understand that DUI is dangerous. This is done so that he can be prosecuted for murder if he is later involved in a DUI-related fatality accident, regardless of the facts. In other words, despite what the laws say, the crime becomes murder rather than manslaughter if he signed a piece of paper saying “DUI is dangerous”.
Another triumph of form over substance….