Monthly Archives: January 2009

“Do as I Say…Not as I Do” (cont’d)

In my last post, I presented three news articles from the previous three days reflecting the double standard in  how cops, prosecutors and judges are treated when they are caught driving drunk.  In the judge’s case, despite aggravating facts she avoided any jail time…But surely she’ll be removed from sitting on the bench, right?

Secret Discipline of $150,000-a-year DUI Judge ‘Could Take Two Years’

Chicago, IL.  Jan. 25 –  She quietly pleaded guilty to drunken driving and was sentenced on the day President Obama was inaugurated.

But it may be another two years before Cook County Judge Sheila McGinnis is disciplined by the authorities who oversee Illinois judges – if they discipline her, according to the executive director of the Illinois Judicial Inquiry Board.

McGinnis on Tuesday dodged a potential one-year jail term when she admitted drunkenly crashing her Chevrolet sport utility vehicle into the back of a family-of-four’s minivan May 9 in Tinley Park.

With the attention of the Southland and the world focused on Washington, D.C., Judge Edward Burmila fined McGinnis $1,000, ordered her to complete an 18-month probation stint, to attend counseling and to attend a victim impact panel during a brief hearing at the Markham courthouse.

Secrecy governs the process by which judges are disciplined in Illinois, meaning the JIB cannot reveal if an official complaint has been made against McGinnis in her role as a judge, JIB executive director Kathy Twine said…

A Southtown Star survey of Illinois Court Commission records shows that not one of the eight Illinois judges investigated for DUIs since 1973 has been removed from the bench for even one day…

Want to bet what’s going to happen to this judge after two years of secret "investigation"?  Or what your sentence would have been standing in front of this same judge with the same facts?

“Do as I Say…Not as I Do”

What happens when cops, prosecutors and judges get busted for drunk driving?  A sampler from the past 3 days’ news…

Officer Not Charged with DUI

Pekin, IL.  Jan. 23 – A Pekin police officer arrested for DUI on Dec. 19 will not be charged with DUI because of a lack of evidence.

Patrolman Andrew J. Thompson, 29, of Pekin, had just left a bar on Broadway Road, Pekin, when he was rear-ended by another car sliding on the ice at Broadway Road and North 20th Street.

A Pekin police officer at the scene noticed the odor of alcohol coming from Thompson and notified the commanding officer.

Thompson refused all alcohol testing — both field sobriety and a Breathalyzer test…

“Without admitting that he was intoxicated on the night in question, he has taken responsibility for his actions and both Mr. Thompson and the city of Pekin Police Department are completely satisfied with the resolution of this matter,” said (his attorney Brian) Addy…

Illinois Secretary of State Attorney Jay Mesi said the Secretary of State’s Office cannot suspend a license for failure to submit to drug or alcohol testing unless the arresting agency sends a sworn report of the refusal to submit to testing.


“We can’t suspend unless we get that sworn report. The officer is required to send the report to us and the circuit clerk.”

Hmmm…What about prosecutors?

Ex-Prosecuter Avoids Jail Time for her Second DUI

Tampa, FL.  Jan. 23 – Although Florida state law calls for a mandatory 10 days in jail if someone is arrested twice for driving under the influence (DUI) within five years, former Pinellas-Pasco Counties prosecutor Lydia Dempsey Wardell has walked.

Wardell is the former supervisor of state attorney Bernie McCabe’s drunk driving division.


Wardell, 41, had been arrested in July 2008 for DUI, the second time in less than four years after she left the scene of an accident.


Police had said that Wardell was driving a Ford Explorer which a witness said struck the bumper of a parked 2000 Mercedes in a parking lot and left the scene.  The witness gave police the a description of the vehicle and license plate number and Wardell was stopped by police a short distance away.  Police said the damage on Wardell’s vehicle matched that of sustained to the Mercedes.


Police said that Wardell refused to take a blood alcohol test and failed field sobriety tests. 


Okaaaay….So what happens to judges who get caught driving drunk?



Judge Gets Supervision, Fine in DUI Guilty Plea


Chicago, IL.  Jan. 12  –  With the nation’s focus on Washington, a Cook County judge pleaded guilty Tuesday in a south suburban courtroom to a drunken driving charge stemming from a traffic collision.

Judge Sheila McGinnis’ attorney asked for the Jan. 20 hearing date — but denied it was timed to coincide with President Obama’s inauguration in hopes of downplaying news of her conviction and sentence.

"I had no idea when the inauguration was," said defense attorney Jeffrey Aprati, who asked for the hearing date two months ago. "I wanted to watch the inauguration."

McGinnis was sentenced to 18 months of court supervision and a $1,000 fine…

Before her sentencing, McGinnis, a cousin of Mayor Daley, apologized in court for taking the wheel after drinking last May and rear-ending a minivan stopped at a red light in Tinley Park. No one was injured.

Other motorists told police she was weaving and honking at other drivers before the 7:30 p.m. crash. With her head on the steering wheel, she continued trying to drive after the collision, police said.

McGinnis was hearing misdemeanor cases at the Bridgeview Courthouse when she was arrested, but her DUI case was transferred to the Markham courthouse after her attorney argued it would have been "embarrassing" for McGinnis to stand trial in the courthouse where she worked.

In each case, the cop, prosecutor and judge was intoxicated, involved in an accident — and refused to take a breath test.  For you and me, that would add up to a lengthy jail sentence and a long license suspension.  But then, we’re just ordinary citizens…

Are They Finally Getting It?

As readers of this blog are aware, one of my biggest peeves is the demonstrated unreliability of breathlyzers which largely determine an accused citizen’s guilt or innocence….and of the continuing refusal of manufacturers to let the defense or prosecution inspect the critical software – even to the point of ignoring lawful court orders.  See, for example, Breathalyzer Manufacturer Thumbs Nose at Court and Judge: Divulge Breathalyzer Code…or Else.

In other words, "trial by machine" — but the accused can’t confront his accuser.

In what appears to be a growing trend across the country, judges are beginning to rise above MADD’s political hysteria and recognize the blatant denial of due process and basic unfairness.

Breathalyzer Unit Should Be Inspected

Bradenton, FL.  Jan. 16 – Outrage over a judicial ruling on drunk driving on what could be perceived as a “technicality” decision came swiftly this week. But the court justifiably stuck to a strong adherence to the rule of law.

Since the introduction of breath tests in drunk-driving investigations decades ago, defense attorneys have attacked the validity of the results.

Now Florida’s Second District Court of Appeal has affirmed a Manatee County judge’s ruling that bars the results of breath tests in more than 100 DUI cases because the manufacturer of the testing equipment refuses to reveal the inner workings of its device.

This is not a dilemma unique to Manatee and Sarasota counties. This is a legal quandary across the nation, with similar court rulings in Louisiana, Arizona, New Jersey and Massachusetts.

Defense attorneys assert that DUI defendants hold the due process right to have the Intoxilyzer, manufactured by Kentucky-based CMI Inc., analyzed by programmers, biologists and physicists to determine whether the device provides precise results.

The company refused orders from both Manatee County Judge Doug Henderson and Sarasota County Judge David Denkin to reveal the source code, claiming the software is a protected trade secret.

Even though both judges agreed with the company on that point, they ruled the defendant’s due process rights had been violated and breathalyzer evidence should not be allowed into evidence…

The rule of law must apply here, not the emotion surrounding the drunk-driving issue. Everybody wants to rid our roadways of reckless lawbreakers and potential killers, but that does not justify accepting as an article of faith that this product produces solid evidentiary results each and every time.

That would deny defendants the right to a fair trial.

We must determine if this commercial product does indeed have flaws. Are there bugs in the software? Defects in the machine?

Have we not learned our lesson from the numerous bad products exposed in the past year alone, especially imports from China, from toys with lead-based paint to deadly pet food? And now tainted drywall.

CMI should not be allowed to hide behind the “trade secrets” defense. An independent testing group, under a vow of secrecy, should check out this product thoroughly.

Only then will law enforcement agencies and prosecutors around the nation have confidence in their drunk-driving cases.

So what are the manufacturers hiding? 

Well, this news story involves a fight in Florida over CMI, Inc.’s breath-testing machine, the Intoxilyzer.  In the only instance of a manufacturer actuyally complying with a court order, Draeger Corporation (reluctantly) obeyed the New Jersey Supreme Court and turned over the software for its Alcotest 7110.  After extensive analysis by experts, the conclusion:    

The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style…

It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Food and Drug Administration (FDA), as well as commercial standards used in devices for public safety…

For a more detailed look at the expert’s report, read my post Secret Breathalyzer Software Finally Revealed.

Driving Under the Influence of…Ice Cream?

I’ve posted repeatedly in the past about the multitude of problems with breath-alcohol machines – including the disturbing fact that they are non-specific for ethyl alcohol.  In fact, they don’t actually measure alcohol, but rather the presence of the methyl group in the compound.  See Why Breathlayzers Don’t Measure Alcohol.

Unfortunately, there are thousands of compounds that contain the methyl group, and studies have confirmed that over 100 of these have been found on the human breath.  In one oft-cited experiment, for example, blood-alcohol levels of .05% were reported by breath machines after the subjects consumed only bread.  See Driving Under the Influence of…Bread?

Recently, MADD has successfully pushed for the mandatory installation of ignition interlock devices (IIDs) in cars driven by anyone convicted of drunk driving — and, in time, as standard equipement in all vehicles.  See  All U.S. Cars to Have Ignition Interlock Devices? and Why is MADD Pushing Ignition Interlock Devices?  And I’ve written about the deficiencies of these primitive devices.  See The Truth About Ignition Interlock Devices  and my article published in Business Week, MADD Announces End to Drunk Driving: A Reply.

In yesterday’s news:

Ice Cream Causes Positive Alcohol Test 

Frankston, Australia.  Jan. 20 – An Australian man challenged to prove his claim that ice cream gave him a blood alcohol reading demonstrated his defense in court.

The man, whose name was not given, had asked Frankston Magistrates’ Court to remove the breath testing alcohol interlock device from his car, the (Melbourne, Australia) Daily Sun reported Tuesday.

Prosecutors inquired why the machine had registered a "fail," which prevents the car from starting, despite the man’s claims that he had not been drinking.

The man claimed the alcohol reading was the result of eating a Bubble O’ Bill ice cream treat and Magistrate Rod Crisp ordered a test to be performed to back up the claim. Police recorded the man’s blood alcohol content as 0.00 and performed the test a second time after he took a few bites of Bubble O’ Bill, yielding a 0.018 reading.

Crisp granted the man’s request to remove the breath testing device from his car.

Experts said consuming some foods or drinks before breath tests can cause a false positive reading. It is recommended that that test subjects wait at least 15 minutes in between eating and blowing into the machine.

(Thanks to Jonathan Lenners)

Breathalyzer Manufacturer Avoids Court Order

I’ve often reported of the ongoing struggle of defense attorneys across the country to get breathalyzer  manufacturers to disclose the secret software that runs their various breath testing machines.  Unreliable or inaccurate software code will produce inaccurate blood-alcohol results — and the conviction of innocent citizens.  Increasingly, courts across the country are ordering manufacturers to produce the code for defense inspection.  See, for example, Judge Orders Software Secrets Revealed (Arizona) and Judge: Divulge Software Code…or Else (Florida).  

And just as often, the manufacturers are refusing to obey the court orders or finding ways to circumvent them.  See, for example, Breathalyzer Manufacturer Thumbs Nose at Courts  (Arizona) and Secret Breathalyzer  Software Still Secret (Minnesota).  In only one case has a manufacturer complied with a court order – and in that case, experts analyzing the software code for the Alcotest 7110 concluded that it "has to be considered unreliable and untested".  See Secret Breathalyzer Software Finally Revealed (New Jersey). 

The courts are finally beginning to agree that an accused in this country has a right to see the evidence against him.  And since guilt or innocence is increasingly a matter of "trial by machine", an accused citizen has a right to confront his accuser. 

However, manufacturers continue to hide what’s inside the "black boxes" — apparently afraid of what will be foound.  And they are becoming increasingly clever in their efforts to evade court-ordered disclosure.  In Arizona, for example, a court ordered disclosure — but then refused to hold the manufacturer in contempt when its attorney argued that the court had no jursdiction since the corporation did not do any business in Arizona (despite the fact that it was, in fact, doing business by selling the machines to Arizona law enforcement agencies).  See Justice vs Profits: Guess Which Wins…Again?

A few days ago, yet another manufacturer found an ingenius way to avoid a court order: drown the accused citizen in information:

Defense Attorneys Dispute State’s Agreement with Intoxilyzer Company

Minneapolis, MN.  Jan. 14 – Minnesotans are being routinely and, in some cases, wrongly — convicted of drunken driving charges because of a machine whose operation largely remains a mystery, an attorney told a federal judge Wednesday.

"The consequences being meted out by this instrument … are serious, yet we know precious little about how this machine goes about making its accusation," said Jeffrey Sheridan, a lawyer with the Minnesota Society for Criminal Justice. "We should be able to confront our accuser, and in this case, our accuser is this machine."

He was referring to the Intoxilyzer 5000EN, the primary device Minnesota law-enforcement agencies use to test drivers’ blood-alcohol content. A legal fuss has developed over the machine’s "source code," the computer language that tells the machine how to interpret a person’s breath sample.

Defense attorneys statewide question whether the code works properly, and they sued the state for access to it. The state replied it didn’t have the source code and sued the maker, CMI of Kentucky, for it.

The company claims the code is a trade secret but reached a settlement with the state that ostensibly gives a defendant the right to have his expert witness examine the source code. Defense attorneys claim the agreement’s provisions for the examination make it virtually useless.

In a hearing before U.S. District Judge Donovan Frank on Wednesday, lawyers for the state and CMI argued the settlement should be approved. Sheridan and lawyers for other groups said the settlement would be bad for the state and worse for defendants facing driving-while-impaired charges.

"People who are not impaired … are being thrown in jail because this black box says they’re guilty of a crime," said Charles Ramsay, a criminal defense attorney representing four individuals who object to the settlement. "This black box decides the guilt or innocence of people in Minnesota. Innocent people are going to jail. They refuse to fix it, and they’re covering it up."…

While the agreement allows an expert witness to examine the source code, it also requires the witness to travel to CMI’s headquarters in Owensboro, Ky., to view the code in the form of an 1,100-page printout.

Ramsay told Frank that a computer expert told him that under ideal conditions, it would take up to 90 days to analyze the source code, but under the limits in the agreement, it would take 30 years.

"Their solution would deprive Minnesota citizens of fundamental constitutional rights," Ramsay said. "We just want unfettered access to the source code."

Once again, corporate profits win out over justice and the Constitution. 

(Thanks to Doug Hazelton.)