Daily Archives: July 23, 2009
As many of you may know, I’ve written and lectured ad nauseum about the extensive loss of constitutional rights in drunk driving cases. See The DUI Exception to the Constitution. For those who are unclear what this means, the following from today’s Washington Post presents a clear example:
A Valid Legal Theory That Crumbles With Each DUI Arrest
Washington, D.C. July 23 – Drunk drivers and potheads, rejoice. If you get caught, the Supreme Court has made it easier for you to beat the rap..
That pesky Bill of Rights is creating hurdles for the police again. The justices ruled 5 to 4 last month that prosecutors can’t make their cases by relying just on a document like a lab report (yes, it was marijuana) or breath test printout (he blew twice the legal limit, your honor). Now, the state must also make available as witnesses the lab technicians, breathalyzer operators or other individuals who prepared the documents.
The court said that’s necessary because of the Sixth Amendment, which guarantees defendants’ rights to confront their accusers at trial. The argument boils down to "You can’t cross-examine a machine." The ruling is right in theory but really wrong in practice…
The ruling is going to force a lot of costly changes with little practical long-term benefit. It will require new laws and court procedures, and cost a lot of money to hire and train additional forensic technicians and other employees, to make it work.
Worse, it hands a new weapon to defense lawyers that’s going to benefit them mostly in battles over procedure rather than justice. Because the state won’t be able to produce witnesses in many cases, defense lawyers already are saying they expect to win more acquittals at trial…
Stephen Saltzburg, professor of criminal law and procedure at George Washington University, said Scalia was right to say that scientific tests are a kind of testimony that defenders need to be able to challenge. But he added that the dissenters "had a very strong argument that perhaps there could be an exception for these highly reliable mechanical tests that didn’t exist when the framers wrote the Sixth Amendment."
Highly reliable? Apparently the good professor has never encountered one of these notoriously inaccurate and unreliable machines in his classroom. See, for example, How Breathalyzers Work (and Why They Don’t). Maybe if he was to serve on a jury and listen to the facts during cross-examination he might understand.
Oh, right. Accused citizens shouldn’t be permitted to question the evidence against them…at least, not in drunk driving trials.
It’s a real shame about that "pesky Bill of Rights"….