Archive for May, 2009

Investigative Reporter Exposes DUI Attorney Practices

Friday, May 15th, 2009

The May 2009 issue of California Lawyer magazine, circulated to all attorneys in the state, has just been published — featuring the cover article "The DUI Defense Bar".  Investigative reporter Tom McNichol takes a hard (and long-overdue) look at the good, the bad and the ugly among drunk driving laws and lawyers.  A small sample:

…DUI defense lawyers, however, aren't nearly as easy to pigeonhole. At one end of the spectrum are the specialists who've spent much of their professional lives mastering arcane technical issues such as blood and breath partition ratios, microbial contamination in urinalysis, and the perils of retrograde extrapolation in chemical tests. These attorneys typically charge anywhere from $3,500 to $10,000 to defend a first offender, not including the expert witness fees or lab tests that may be required. Top expert witnesses with national reputations can easily push the total cost closer to $20,000.

At the other end of the spectrum are cut-rate practitioners with no particular expertise, who charge as little as $1,000 per case. These include "dump truck" lawyers, who sign up as many clients as possible and then dump them all on the guilty-plea docket; and "escort" lawyers, who escort clients up to the judge like a high-paid call girl, plead them guilty, and then disappear with the money.

These DUI mills typically offer a lowball rate to clients, and they tend to give commensurate service. One California attorney who advertises his "cheap DUI defense" widely on the Internet pitches prospective clients: "We do the same thing over and over again. There is simply no reason to spend thousands of dollars on your defense. We charge about half of the going rate."…

Ok, time for a little shameless back-patting:

…By punching enough holes in the prosecution's case, a good DUI lawyer can, if not exonerate a client, then at least knock the charge down to what's known in the trade as a "wet reckless"—an alcohol-related reckless driving offense. 

This is where defendants often get from their lawyers what they pay for. At the Law Offices of Lawrence Taylor, Inc.—where attorneys devoted exclusively to DUI cases charge top dollar—blood and urine samples are routinely reanalyzed; breathalyzer maintenance, calibration, and administration are investigated; and sometimes the scene of an arrest is revisited. Taylor's firm also boasts a support staff that includes a forensic toxicologist who once did DUI testing for the Los Angeles County Sheriff's crime lab, a former hearing officer for the DMV, and a former police officer who was on the Santa Ana department's DUI task force. That's a far cry from the firms where lawyers, by their own admission, "do the same thing over and over again."

Still, at a time when general practitioners are finding it much harder to make ends meet, it's a good bet that more of them will take on DUI cases, whether or not they know what they're doing. Tough times are also likely to drive more drunks onto the road, leading to more DUI cases—and even more lawyers chasing them.

What insight!  Pulitzer Prize stuff….


MADD Chief’s Nomination Withdrawn

Wednesday, May 13th, 2009

As I’ve mentioned in earlier posts, Chuck Hurley, the CEO of Mothers Against Drunk Driving, was nominated by President Obama to head the National Highway Traffic Administration.  See Ex-CEO of MADD to Set Vehicle Safety Standards.  And, along with other MADD objectives, part of Hurley’s agenda inevitably would be to require ignition interlock devices as standard equipment in all cars.  See New MADD Goal: All Cars Equipped with Breathalyzers.  Not coincidentally, auto manufacturers who will profit are the biggest contributors to MADD’s $52 million average annual income.  See Why is MADD Pushing Ignition Interlock Devices? 

Since my postings, some of the media has been less than enthusiastic about placing a single-issue MADD zealot in charge of overseeing vehicle and traffic safety regulation.  See, for example, Reaction to CEO of MADD Heading Federal Agency.

In yesterday’s news:

Obama Pick for Highway Safety Post Withdraws

Washington, D.C.  May 12 –  A top official with Mothers Against Drunk Driving who was chosen to oversee a federal highway safety agency has withdrawn his name for the post, the White House said Tuesday.

The Obama administration said in April it intended to nominate Chuck Hurley to become the administrator of the National Highway Traffic Safety Administration. Hurley, who was not formally nominated, is a longtime safety advocate and has served as MADD’s chief executive officer since 2005.

Some environmental groups had questioned Hurley’s commitment to tougher fuel efficiency requirements and his ties to automakers. MADD has received funding from several auto companies, including General Motors Corp., Toyota Motor Corp., Ford Motor Co. and others.

The federal agency oversees highway safety programs and sets fuel efficiency and safety requirements for car companies.

At MADD, Hurley has pushed states to adopt tougher drunken driving laws and require first-time offenders to use ignition interlock devices on their cars. The devices require drivers to blow into an instrument that measures alcohol and prevent a vehicle from starting if the driver’s blood alcohol concentration exceeds a certain level…

Sanity finally trumps MADDness.


“The Politics of Modern Prohibition”

Friday, May 8th, 2009

Recently, it seems that there has been an increasing willingness of the media willing to reject political correctness and MADD's hysteria, instead adopting a more objective and reasoned approach to the question of traffic safety…

Our View:  The Politics of Modern Prohibition

Colorado Springs, CO.  May 4 –Do not drink and drive. Do not drink and drive, do not drink and drive, do not drink and drive. There. It has been said. The Gazette's editorial board officially opposes drinking and driving. It's a truly bad idea.

With that out of the way, it's time to raise the question: Why does law enforcement aggressively seek to prohibit drinking and driving, severely punishing some drivers who've had a few drinks and caused no harm, while tolerating an array of other dangerous driving conditions? The answer might be the politics of modern prohibition, or the political feasibility of enacting controls over people who drink but not people who are too old or too ill to drive safely, or those too busy texting, eating, shaving or looking at maps to pay attention to traffic around them…

Our criminal justice system does not demand that most people with dementia stop driving, even though it's a condition that can cause them to crash. Police don't seek them out with checkpoints, in order to fine and jail them for driving while confused. They seldom target and punish drivers who've neglected to get sleep. They don't hunt down people who are driving despite knowledge of an imminent heart attack or stroke.

When medically challenged drivers are held accountable for driving when they shouldn't, it's only after they crash. Yet drinkers, even casual drinkers who aren't drunk and are not statistically at high risk for causing harm, are punished for what might have happened. It violates the spirit of the 14th Amendment, which requires equal protection under the law.

"This severe legal persecution of drunk drivers alone, instead of all dangerous drivers, makes a complete mockery of our legal system," wrote Mark Crovelli, of Denver, for "It is a situation in which one group of demonized and socially-despised drivers is mercilessly persecuted, while other non-demonized drivers are virtually ignored – even though both groups of drivers put other people's lives at risk."

Crovelli points to a U.S. Census Bureau projection that says 9.6 million people will be older than age 85 by 2030, up 73 percent from today. He said road safety analysts predict that by 2030 drivers over 65 will cause 25 percent of all fatal crashes – up from 11 percent in 2005. Crovelli wants to know if police will set up checkpoints to catch people for driving while too old, handcuff them, jail them overnight, counsel them, and fine them thousands of dollars because of the harm they might have caused if left on the road.

Again, for the record, it's a bad idea to drink and drive. It's downright dangerous to drive after drinking to excess. But it's also dangerous to drive with an array of other conditions and behaviors, known to affect young and old alike, that endanger others on the road. In our zeal to criminalize all who drink and drive, including those with blood alcohol levels as low as 0.05, let's not conveniently forget that little requirement of equal protection under the law.

Is it possible that the recent appointment of MADD's CEO to head the National Highway Traffic Safety Administration has triggered a long-overdue backlash?

(Thanks to Ken Sharp)


Legislator Immunity From DUI Challenged

Wednesday, May 6th, 2009

A few weeks ago, based upon a tip from a reader I posted about an item in the Denver Police Department Operation Manual which essentially instructed officers not to arrest state legislators for drunk driving.  See Legislators Vote Themselves Exempt From DUI Arrrest.

205.07.  Violations by Colorado Legislators.

(4)  In the absence of felony violations, should an officer have reason to believe a legislator is driving under the influence, the officer may cite for a violation which caused an accident or was the reason for a traffic stop.  For the safety and welfare of the public and the legislator, the officer will arrange for other transportation for the legislator and his/her vehicle will be parked and locked 

This was based upon a little-known provision of the state constitution which gave limited immunity from arrest for misdemeanors to legislators. 

Apparently, someone read the post.  In yesterday’s news:

DUI Loophole: State Legislators Exempt

Denver, CO.  May 4 — It’s a case of preferential treatment embedded in both the Colorado Constitution and the Denver Police Department Operations Manual: Colorado legislators are immune from being arrested for Driving Under the Influence.

A CBS4 investigation found the unusual law and DPD regulation, codes that took the state director for Mothers Against Drunk Driving by surprise.

"So I don’t see why we should treat legislators different than normal people," said spokeswoman Emily Tompkins. "So it’s time to clean that up. It absolutely sends the wrong message that those writing the laws we have to stand by are exempt from them."

Section 205.07 of the Denver Police Operations Manual guides officers on "Violations by Colorado Legislators." It says that if a lawmaker is driving under the influence and there is an accident with serious injuries or a fatality, the legislator should be arrested and processed for felony DUI.

In other words, the officer can cite the legislator for whatever led to the stop, but not for an actual DUI, and the legislator should then be given a ride.

"But no one should be driving impaired and no one should be exempt from the laws that are there to protect the public," Tompkins said.

Eric Brown, a spokesman for Mayor John Hickenlooper’s office, told CBS4 that at the request of the Denver Police Department, the City Attorney’s Office recently reviewed this section of the police operations manual but recommended the thrust of the section not be changed…

"Who will guard the guardians?"


State Supreme Court Orders Breathalyzer Secrets Exposed

Monday, May 4th, 2009

If you are arrested for drunk driving, you’ll probably be charged with two crimes.  The first is DUI – "driving "under the influence" (sometimes called DWI – "driving while impaired").  If the reading from a breath test is .o8% or higher, the laws of most states rebuttably presume you to be guilty of the crime.  

The second crime you will be charged with is driving with a blood-alcohol level of .08% or higher.  In this case, there is no presumption: the breathalyzer reading is the crime.  And in many states, the reading is presumed to be accurate.  See Whatever Happened to the Presumption of Innocence? 

Obviously, the accuracy and reliability of these machines — which are run by computers — are critical.  Just as obviously, an American citizen accused of these crimes should have the right to question the accuracy of his accuser: the machine.  I mean, the Constitution gives us that right, doesn’t it?

Well, as I’ve railed long and hard in past posts, there is this nagging "DUI exception to the Constitution".  So, no — you don’t have a right to look into the guts of the machine — its computer software — and see if it’s accurate and reliable.  Why?  Because the breathalyzer manufacturers refuse to turn it over — citing "trade secrets", but in reality fearing exposure of their junk science.  See Secret Software Finally Revealed, about the one case in which the manufacturer was forced to turn over the software — revealing, as suspected, that the primitive code was neither accurate nor reliable (nor was it a "trade secret").

In the past, the courts have gone along with the manufacturers, siding as well with prosecuters who don’t want their all-important breath machines exposed.  But in recent years, an increasing number of trial and appellate courts across the country have begun changing this approach.  See, for example, Judge Orders Secrets of Breath Machine RevealedJudge: Divulge Breathlayzer Code – Or Else and Breathalyzer Manufacturer Thumbs Nose at Courts.  

On Friday, a state supreme court finally weighed in on the issue….

Breath-Test Ruling Jeopardizes Thousands of State DWI Cases

Minneapolis, MN.  May 1 –Minnesota may be forced to drop thousands of driving-while-impaired cases and change the way it prosecutes others in the wake of a state Supreme Court ruling Thursday, prosecutors and defense attorneys agreed.

The state’s highest court ruled that defendants in drunken-driving cases have the right to make prosecutors turn over the computer "source code" that runs the Intoxilyzer breath-testing device to determine whether the device’s results are reliable.

But there’s a problem: Prosecutors can’t turn over the code because they don’t have it.

The Kentucky company that makes the Intoxilyzer says the code is a trade secret and has refused to release it, thus complicating DWI prosecutions…

The Intoxilyzer 5000EN is the standard device used by Minnesota police to determine if a driver is impaired. The state bought 260 of the machines from the manufacturer, CMI of Kentucky, in 1997, and state law presumes the devices’ results to be reliable.

The device is used with nearly eight of every 10 suspected drunken drivers who are tested in Minnesota.

But defense attorneys have argued that if they can’t examine the source code, the computer program that runs the machine, they have no way to tell if the Intoxilyzer is reliable. District judges across Minnesota have handled defense requests for the source code with a patchwork of rulings: Some say a defendant has a right to examine it; others say it isn’t relevant…

The Supreme Court said (defendant Brunner’s evidence) "show that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to Brunner’s guilt or innocence."

(Thanks to Andre)