Archive for January, 2009

Presumed Guilt Continues in DUI Cases

Thursday, January 15th, 2009

In this country, we have certain constitutional protections.  One of the most important of these is the presumption of innocence.  But as I’ve posted repeatedly in the past, this no longer exists in drunk driving cases.  See, for example, Whatever Happened to the Presumption of Innocence? and If You Can’t Prove It, Make the Defendant Disprove It.  And for those who think this is limited to DUIs, keep in mind that we are a nation of legal precedent — that if the Constitution is ignored in drunk driving cases today, it can be ignored in free speech cases tommorrow.  See my post, Who Cares About Drunks?

In yesterday’s news, yet another example of the new presumption of guilt in America:

Law Requires Detection Device After DUI Arrest

Illinois.  Jan. 14 – On Jan. 1, an Illinois law took effect that requires people arrested — not convicted — for the first time of drunk driving to install a Breath Alcohol Ignition Interlock Device in their vehicle.

"It’s a great concept," said Officer Anthony Ikis of River Grove, who in 2007 arrested 200 drunk drivers. "I really like it. I hope it works."

Drivers must pay the cost of the devices, $80 to $100 to install, and the monthly $110 for rental and monitoring fees.

"The money aspect is pretty frightening," Ikis said. "When money comes out of people’s pockets, people start to think a little bit more."

Guilty (and punished) until proven innocent…."A great concept".


Justice vs Profits….revisited

Thursday, January 15th, 2009

In my last post, I indicated that the Arizona Judge reversed her earlier ruling that the manufacturer of the breath machine used in that state, CMI, Inc., had to turn over the software for inspection by the defense.  The reversal was based upon the fact that CMI was headquartered in Kentucky, and since they did not do business in Arizona, they were not subject to the Arizona courts’ jurisdiction.

Tucson, AZ.  Jan. 12 — A Pima County Superior Court judge who ordered a Kentucky firm to divulge the software code of its alcohol breath-test machine has rescinded her order, saying she doesn’t have jurisdiction to rule.

Judge Deborah Bernini said in a ruling issued Monday that CMI Inc. of Owensboro, Ky., isn’t authorized to do business in Arizona.

Therefore, her orders in a local case don’t extend beyond the state’s borders.

Shortly thereafter, I received an email from a reader pointing out the obvious…

If part of her reasoning to rescind her previous order is based on this statement, how is it that they are allowed to sell the machines to the State in the first place? How can that not be be considered doing business regardless of where their manufacturing facility is. They send a product to an Arizona entity, who in turn sends them a check. Thats doing business… This just doesn’t make sense to me (actually I shouldn’t be surprised because most of the rulings in the DUI realm defy all logic anyway).

(Thanks to David Baker.)



Justice vs Profits: Guess Which Wins…Again?

Tuesday, January 13th, 2009

Guilt or innocence in a drunk driving case commonly hinges on the breath test — and on the accuracy and reliability of the breath machine.  I’ve written ad nauseum in the past about the demonstrated lack of both — and on the success of manufacturers in keeping the inner workings of their machines secret.  See, for example, What Are Breathalyzer Manufacturers Hiding?   Amazingly, these devices which largely determine guilt or innocence, remain mysterious "black boxes" — run by software which is kept secret from the accused, his attorney, and even from prosecutors and the courts.

Recently, judges in a few states have begun ordering the manufacturers to turn over the software ("source code") so that the defense can have it analyzed for accuracy.  The manufacturers have refused, and have spent huge amounts in legal fees to keep anyone from peering inside their machines. 

Once again, they’ve won….

Judge Rescinds Order for DUI Breath-Test Device Code

Tucson, AZ.  Jan. 12 – A Pima County Superior Court judge who ordered a Kentucky firm to divulge the software code of its alcohol breath-test machine has rescinded her order, saying she doesn’t have jurisdiction to rule.

Judge Deborah Bernini said in a ruling issued Monday that CMI Inc. of Owensboro, Ky., isn’t authorized to do business in Arizona.  Therefore, her orders in a local case don’t extend beyond the state’s borders…

Phoenix attorney Michael Parrish argued before Bernini last week that the Uniform Act maintains that an order for CMI to give up the source code must come from a Kentucky court.

Bernini agreed.

"Because an Arizona court cannot compel production of documents or things not maintained within this state, the only lawful method that may be utilized to compel CMI to produce the source code in Arizona is compliance with the Uniform Act," she said in her ruling.

So far, other attorneys who have tried this method have failed to get the Owensboro court, which is named in honor of a relative of CMI’s own attorney, to order CMI to divulge its source code, (Tucson defense attorney James) Nesci said.

Defense attorneys had asked Bernini to find CMI in contempt of court because it failed to deliver the source code. Because the court had no jurisdiction to issue the order for the source code, Bernini wrote, the contempt sanction "is no longer appropriate."

In September, Bernini granted a defense request for the source code, citing an Arizona Supreme Court ruling: "All materials relied on by prosecution experts must be available to defense experts, and vice versa."

Defense attorneys say they’ve found problems traced to CMI Intoxilyzer 8000’s software that can skew results of blood-alcohol content readings.

In making her ruling, Bernini noted that state’s witnesses agreed "there are defects in the machine and ‘bugs’ in the software that are attributable to the source code."

So….even the prosecution experts agree that there are "defects in the machine…attributable to the source code"…but the defense can’t look at the source code…because only a judge in a Kentucky county (named after the manufacturer’s attorney and where the manufacturer is a major employer) can do that.

And "trial my machine" continues.


Trial by Machine

Thursday, January 8th, 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 South Dakota juries are incapable of judging the credibility of a DUI defendant who so testifies.

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.) 


DUI Murder?

Wednesday, January 7th, 2009

In recent years it has become increasingly fashionable and politically advantageous to adopt MADD’s "War on Drunk Driving" — to ratchet up the Draconian penalties while at the same time gradually eliminating inconvenient laws and constitutional safeguards.

Perhaps the most glaring example of this approach has been the relatively recent phenomenon of politically ambitious prosecutors charging suspects in DUI cases involving a fatality not with manslaughter but with murder.

The following are excerpts from a CBS "60 Minutes" special aired three days ago.  The case involved a 24-year-old man, Martin Heidgen, who was driving with a high blood-alcohol level when he hit a limousine, killing the driver and a 7-year-old girl. He had no prior record.  

DWI Deaths: Is It Murder?

(CBS)  Drunk driving kills more than 13,000 Americans a year – that’s one every 39 minutes. Authorities call it an epidemic. They say that despite all the publicity, all the education campaigns, and all the advertising over the past decade, the number of drunk-driving fatalities has not gone down.

Some prosecutors have started taking a different approach to the problem, getting so tough on drunk drivers who kill people that the penalties they exact were unheard of in the past.

As correspondent Bob Simon reports, one of these pioneers is Kathleen Rice, district attorney of Nassau County, New York. She believes that if you want to stop drunk driving, you have to treat it as a serious crime with serious jail time…

Getting tough on drunk drivers has been the centerpiece of her platform since she was elected in 2005. This case showed why.

"A 7-year-old girl is beheaded. The driver of the car is crushed to death. I think too many people think about drunk driving crashes, or accidents as people like to call them, as, you know, driving off the road. Or rolling through a red light. These crimes are incredibly violent," Rice says…

Katie’s funeral attracted more than 1,000 people. Her death, along with that of Stanley Rabinowitz, became rallying points for the campaign to crack down on drunk driving.

Martin Heidgen was arrested and charged not with manslaughter – meaning accidental killing, as is customary in drunk driving fatalities – but with the more severe charge of murder. That hardly ever happens in America.
Asked why Heidgen fit as a murder case, Rice says, "The statute under which he was charged required us to prove that through his actions, he had a completely depraved indifference to human life."

"His actions made the deaths of Katie Flynn and Stanley Rabinowitz inevitable. It was as inevitable as taking a gun and firing it at an individual who’s standing five feet away from you," Rice says.

She says she really believes that.

Heidgen hired lawyer Steven Lamagna to defend him.

Lamagna’s reaction when he heard his client was being charged with murder? "I could recall saying to myself, ‘They’re not going there. They’re not charging a vehicular homicide with murder, with a life sentence, as if he’s Jeffrey Dahmer or John Gotti.’ Murder in our society, and in every state in the union, is relegated to the most dangerous, cold-blooded killers."

Not for young men like Martin Heidgen, he says, a recent college graduate who had no previous convictions of any kind. If he’d been charged with manslaughter – not murder – he’d have been facing a possible sentence of probation to 15 years. Murder carries a mandatory penalty of 15 to life – too much, says Lamagna, for a young man who never intended to kill anyone.

"Are we as a society ready to water down what murder is and turn our sons and daughters into murderers who go out and drink and drive and cause a fatal accident?" Lamagna asks. "No matter how tragic these cases are, and they truly are, they’re an unintentional act that was caused by the alcohol. But for the alcohol, this wouldn’t have happened."

Kathleen Rice says, "Can you imagine if the law allowed Mr. Heidgen to say, ‘Wait, wait, wait. But I was drunk. So I shouldn’t be responsible.’ What kind of lawlessness would you have if intoxication excused that kind of behavior?" …

The trial took six weeks; Heidgen was convicted of second degree murder and sentenced to 18 years to life. The verdict sealed Rice’s reputation as a leader in campaign against drunk driving… 

So if drunk driving with a fatality is now murder, what next?  The death penalty?  Actually, yes….See my post a year ago, The Death Penalty for Murder, mentioning a North Carolina drunk driving fatality case in which the prosecutor asked the jury for the death penalty (which, fortunately, the jury refused to do). 

For politically ambitious prosecutors out there, see my post How to Convict a Drunk Driver of Murder.