Daily Archives: January 8, 2009
I’ve posted extensively over past years about the continuing disintigration of the United States Constitution when it comes the the politically-sensitive field of drunk driving. See, for example, The DUI Exception to the Constitution and Who Cares About DUI?. One example of this is the growing use of presumptions of guilt – in direct violation of our constitutional right to a presumption of innocence. See Whatever Happened to the Presumption of Innocence? and If You Can’t Prove it, Make the Defendant Disprove It.
The primary focus of this trend toward presuming guilt in DUI cases centers on the notoriously unreliable breath machines. Most states, for example, now have laws presuming that the blood-alcohol level at the time of testing is the same as at the time of driving up to three hours earlier — and that the defendant is presumed to be guilty if the machine (or blood test) reads .08% or higher.
South Dakota is now about to join what is now a majority of states in this constitutional revision:
Change Sought in State Law
Pierre, SD. Jan. 7 –Local prosecutors are pushing for a change in state law that they say will simplify drunken driving cases, leading to more guilty pleas and fewer and shorter trials.
State lawmakers during the upcoming legislative session probably will consider a bill, modeled after DUI laws in 27 states, that would draw a more direct line between a suspect’s blood-alcohol concentration and guilt under the law.
At the core of the proposal is a change to the way blood-alcohol tests are considered: As long as blood was drawn within two hours of driving and a chemical analysis came back over the legal limit of 0.08, a suspect would be presumed guilty…
Under current law, which includes no time frame, prosecutors must rely on mathematical equations – blood-alcohol content drops about 0.02 percent every hour – to estimate how intoxicated a suspect was when driving…
However, not all American citizens are apathetic about this corruption of the Constitution. The following is an editorial response:
Those Pesky Technicalities
One thing that drives me nuts is hearing someone say a person avoided criminal charges or a conviction because of a “technicality.” That concept ignores the fact that, in most cases, the “technicality” is a legal right, usually found in something called the Constitution. So it really drives me nuts when people who should know better buy into this mentality. And it looks like that’s the case locally.
The local daily today had a front page story about how local prosecutors want the Legislature to “simplify drunken driving cases.” The solution? “As long as blood was drawn within two hours of driving and a chemical analysis came back over the legal limit of 0.08, a suspect would be presumed guilty.” That have an odd ring to anyone else’s ears?
The idea stems from the fact mathematical formulas are necessary to extrapolate from the blood alcohol test how drunk a person was when they were actually driving. Defendants can attack that with testimony or evidence that, for example, they took a couple drinks just before getting in the car so they weren’t legally intoxicated when driving but were by the time of the blood test. As a result, prosecutors want to create a presumption of guilt in the hopes it will produce more guilty pleas and fewer trials. To top it off, Joni Cutler, a local legislator and a lawyer who chairs the House Judiciary Committee, indicated she might sponsor the legislation and called the current situation a “technical loophole.”
Granted, I don’t practice criminal law and have never prosecuted or defended a DUI case. But comments like that essentially call the foundational concept of presumption of innocence a “technicality.” And I know the story asserts 27 states have such laws. So what? Didn’t our parents teach us you don’t jump off the cliff jut because everyone else is? While I certainly oppose drunk driving, creating such a presumption seems the functional equivalent of saying that any DUI defendant who testifies they drove before the alcohol got into their blood is committing perjury. It also seems to say
Yes, such a law would likely produce more guilty pleas and fewer trials because the odds are now stacked against the defendant. But since when is expedience more important than fundamental principles of justice?
(Thanks to Brad Schreiber of Pierre, South Dakota.)