Monthly Archives: December 2009
I’ve written in the past about what I call "Xeroxed reports" in DUI cases — the increasingly common practice by lazy and/or dishonest cops to simply copy the facts from other reports or use templates in creating an essentially false investigation report. See Ready-Made DUI Arrest Reports and "Xeroxed" DUI Symptoms. For an example of an actual template, see my post Cops "Xeroxing" DUI Arrest Reports.
In today’s news, the latest one to get caught (by defense attorneys):
Polk County Deputy Violated Policy in DUI Cases
Sheriff’s Office Says Tex Thomas Used "Shortcuts" Such as Cut-and-Pasting
Bartow, FL. Dec. 27 — Earlier this year, prosecutors abandoned 54 DUI cases after learning that Deputy Tex Thomas had cut-and-pasted words from previous reports. In one instance, he left the last name of one defendant in the report of another defendant.
In addition, prosecutors were concerned that Thomas didn’t observe drivers face-to-face for 20 minutes before conducting breath tests. Instead, he would count the drive back to the testing facility as part of that time. Law enforcement officers must observe DUI suspects for 20 minutes before a breath sample is taken to make sure the suspects aren’t belching, vomiting, or ingesting anything that might affect the test.
In findings of an internal investigation released last week, the Sheriff’s Office said Thomas had violated a general order regarding competency, job knowledge and proficiency…
The investigation into Thomas began after defense lawyers noticed similarities within his reports…
Lakeland lawyer Tom McDonald said the issue went beyond bad report writing. He accused the deputy of misrepresenting facts in his sworn reports.
"These aren’t similarities," he said. "This is verbatim observations of one person put into another person’s arrest report."…
So what happened to the cop?
Thomas received a "letter of guidance" and must attend a report-writing class…
Gary Hester, chief of staff at the Sheriff’s Office, said Thomas gave defense lawyers issues to attack in his cases.
"Really, what happened here is that defense attorneys get paid good money to create the appearance of problems in cases," he said…
Hester disagreed [with McDonald], saying he didn’t think there were any "integrity issues" with Thomas, and the matter shouldn’t have a long-term effect on his career. He said Thomas’…goal was to "speed the process up so he could take more drunks off the street."
No big deal, right? I mean, if you’ve seen one drunk driver you’ve seen them all. Who needs truthful police reports or actual evidence? The important thing is to get those drunks off the streets.
So which is more dangerous: driving under the influence or driving while texting? And which one is severely punished?
Dewd, U Think DUI is Bad…Try DWT
CNET News, Dec. 22 — It's no surprise that driving while texting (DWT) falls under the category of driving while stupid (DWS).
Drivers who text are about six times more likely to crash than those paying full attention to the road, this study says, and their reaction times are on average three times slower than the reaction times of drivers talking on cell phones.
According to the study's results published in the Human Factors journal:
Drivers apparently attempt to divide attention between a phone conversation and driving, adjusting the processing priority of the two activities depending on task demands. This requires drivers to switch their attention from one task to the other. When such attention-switching occurs as drivers compose, read, or receive a text, their overall reaction times are substantially slower than when they're engaged in a phone conversation."
So if DWT is more dangerous than DUI, why is DWT legal in some states and subject to a $50 fine in others? Why is DUI considered morally repugnant and treated like a felony? Why is it illegal to even have alcohol over .08% in your body — even if you're not under the influence? Why are politicians stumbling over each other to pass ever-harsher DUI laws — but doing nothing about driving while texting?
What's the difference between the two, besides DWT being more dangerous?
Oh, right…DUI involves alcohol. And the prohibitionists at MADD.
I’ve posted repeatedly that DUI roadblocks, aka "sobriety checkpoints", are ineffective at apprehending drunk drivers. See, for example, Do DUI Roadblocks Work? and Do DUI Roadblocks Work? (part 2). Faced with irrefutable facts, police agencies simply switch horses and say that they are effective as deterrents. In other words, "Ok, they don’t work but they scare people". See Purpose of DUI Roadblocks: "Shock and Awe" and OK, DUI Roadblocks Are Illegal and Don’t Work, But…
So why do they get upset when others publicize roadblock locations?
Apps Alert Drivers to DUI Checkpoints
Washington, D.C. Dec. 16 — Modern technology is turning the table on cops. Drivers can now get instant warnings on their cell phone or GPS when a DUI checkpoint is near. That has police outraged and worried that drunk drivers could use it to escape arrest…
In Montgomery County, Maryland, police sometimes announce DUI checkpoints without exact locations. Police say having that information out there could endanger everyone on the road.
"If that were to occur, it could cause someone to go ahead and drink and drive because they think they’ve got a free pass," said Captain Paul Starks of the Montgomery Count Police Department.
"If you know there’s a crackdown for DUI, then you’re most likely not going to do it," said Jonathan Milman, the co-creator of (Iphone app) Buzzed. "And that’s where our cab feature comes in."
Still, there’s no preventing people from using the checkpoint alerts to get away with driving drunk. But the point, both companies say, is to deter drunk driving in the first place.
"Why do people put a home security sign in front of their house? It’s to stop the burglar from coming in, in the first place," Milman said. "That’s the purpose of DUI checkpoints. It’s to stop people from driving drunk in the first place."
"We’re not blowing their cover, not undercutting their efforts," said Scott. "Actually we’re enhancing it."
They invite police to team up with them by providing checkpoint locations directly. Don’t expect Montgomery County to sign on.
"I don’t know that we’re going to ever be interested in letting people know exactly where our DUI checkpoints are," said Starks.
Incidentally, when the U.S. Supreme Court permitted DUI roadblocks despite the fact that they’re a clear violation of the Fourth Amendment, they also said that certain safeguards must be used — including advance publicity warning the public of roadblock locations. See Michigan v. Sitz. Of course, police have become very adept at "publicizing" the roadblocks on the back pages of throw-away publications no one reads — or, as in Montgomery County, simply keeping the locations secret.
I’ve written often in the past about the unreliability and inaccuracy of breath tests in DUI cases. Because some readers have said, "Ok, but what about blood tests?", I’ve also pointed out the many problems with testing blood samples as well. See, for example, Fermentation in Blood Produces…Alcohol and What Happens if a DUI Suspect’s Blood Coagulates?.
For those who seem to think that blood analysis for alcohol is any more reliable in drunk driving cases than breath tests, consider this recent news story:
Colo. Springs Lab Says Blood-Alcohol Tests Wrong
Denver, CO. December 11 — Hundreds of DUI and criminal cases in Colorado Springs could be affected by the discovery of faulty blood-alcohol tests.
Police there said Friday that about 82 tests have been found so far showing a higher blood-alcohol content than the true result. An internal investigation found problems with results of tests of blood samples at the Metro Crime Lab since January.
More than 1,000 blood-alcohol samples tested since then are being retested, with the new results going to the El Paso County district attorney and the Department of Revenue, which issues driver’s licenses. Police spokesman Dave Whitlock said the DA’s office and revenue department officials are researching the impact of the new results on criminal cases and civil revocation of driver’s licenses…
"It puts a lot things into question," said Sandy Mullins, executive director of the Colorado Criminal Defense Bar, a group representing defense attorneys across the state. "We take a lot of these tests as fact, when in fact these are being administered by people and systems. Just like any system, they can be faulty." Of greatest concern is cases where people who couldn’t afford to challenge the test pleaded guilty or were convicted. "You’re up against the machine," Mullins said. "’You’re saying I was not drunk, I know I had only this much alcohol.’ They’re saying: ‘Your blood had this much and the test doesn’t lie.’ This proves that tests do lie sometimes."
Yes, tests do lie…more often than the public is aware. The only thing unique in this story is that the inaccuracies were discovered — and published.
"It puts a lot things into question," said Sandy Mullins, executive director of the Colorado Criminal Defense Bar, a group representing defense attorneys across the state. "We take a lot of these tests as fact, when in fact these are being administered by people and systems. Just like any system, they can be faulty."
Of greatest concern is cases where people who couldn’t afford to challenge the test pleaded guilty or were convicted.
"You’re up against the machine," Mullins said. "’You’re saying I was not drunk, I know I had only this much alcohol.’ They’re saying: ‘Your blood had this much and the test doesn’t lie.’ This proves that tests do lie sometimes."
MADD (Mothers Against Drunk Driving) has been very successful over the past two decades in using their considerable influence with legislators and federal agencies to get new laws passed designed to curtail or eliminate drunk driving. Among these have been dropping the blood-alcohol level to .08%; per se laws (illegal to drive with over .08% even if sober); "zero tolerance" laws (.01% standard for drivers under 21); immediate license suspension by the officer.
None of these have fulfilled the promise of reducing DUI in the United States. In fact, alcohol-related fatality rates have remained relatively stable since 1992.
May 25, Washington. Reuters – Alcohol-related deaths on U.S. roads rose to their highest level in 14 years in 2006, while the overall number of people killed in traffic crashes declined slightly but still topped 43,000, according to preliminary government estimates Friday.
The Transportation Department said that drunken driving deaths rose 2.4 percent to 17,941 after a slight decline in 2005. It was the highest level since 1992 when 18,290 deaths were reported.
Three years ago, Madd unveiled its latest campaign to end drunk driving with great fanfare:
WASHINGTON (November 20, 2006) — In a bold new effort designed to eradicate one of the nation’s deadliest crimes, Mothers Against Drunk Driving (MADD) today launched its national Campaign to Eliminate Drunk Driving, which aims to literally wipe out drunk driving in the United States…
That’s right: end drunk driving. How? Simple: with technology — primarily by requiring first offenders to install ignition interlock devices (IIDs) in their cars. Yet another naive and simplistic solution to a complex problem.
The following is an article I was invited to write in reply, published in Business Week:
Technology Alone Won’t Tackle Drunk Driving
IGNITION INTERLOCK DEVICES PROMOTED BY MADD WILL DO LITTLE TO STOP PEOPLE FROM DRIVING WHILE INTOXICATED
Government statistics show that alcohol-related fatality figures have been essentially unchanged for the past decade — despite lowered blood alcohol levels, Draconian penalties, DUI roadblocks, legal presumptions of guilt and other assaults on the Constitution.
Recognizing a failed effort, MADD has unveiled with considerable fanfare its latest weapon in the “War on Drunk Driving”: the ignition interlock device (IID). The device is not new, of course: it has been in use in many states for several years (with notably little success) and versions are being developed by Saab, Toyota and Nissan for possible installation in future car models as standard equipment. There are, however, two basic reasons this newest “answer” to the drunk driving problem will fail as well.
First, IIDs are inaccurate, unreliable, easily circumvented, dangerous — and ineffective. Unlike the infrared spectroscopic breath instruments used by law enforcement, or even the less sophisticated handheld field units used by officers (deemed too inaccurate to be used in evidence), IIDs are primitive devices that are mounted along with the ashtray in the car’s dashboard — and subject to contaminants, cigarette smoke, vibrations from the road, etc. In any event, an intoxicated person could easily have someone else breath into the device, or simply borrow or rent antoher car. And because IIDs generally require periodic retesting of the driver while the car is underway, the risk from driver distraction alone poses a very real danger.
But how effective are IIDs in achieving MADD’s goal of lowering fatalities? In a study entitled An Evaluation of the Effectiveness of Ignition Interlock in California: Report to the Legislature of the State of California, the California DMV concluded:
The expected effect that an IID order/restriction issued by the court would result in a lower rate of subsequent DUI convictions was not observed. (p. 7)
The risk of a subsequent crash was higher for drivers installing an IID, compared to drivers not installing a device; drivers installing an IID had a risk of a subsequent crash that was 84% higher than drivers not installing an IID. (p. 10)
The results of this outcome study clearly show that IIDs are not effective in reducing DUI convictions or incidents for first DUI offenders … Because there is no evidence that interlocks are an effective traffic safety measure for first DUI offenders, the use of the devices should not be emphasized. (p. 22)
The second reason the IID will fail is that, as with other attempts to bring down the alcohol-related fatality figures, the IID does not address the underlying problem.
The risk of DUI-caused fatalities lies not with the social drinkers who represent the vast majority of drivers over .08%, most of whom are in the .08% – .15% range. My own experience from prosecuting and defending thousands of DUIs is that those who cause injury and death on our highways are usually fairly identifiable: the problem alcoholic. This client can usually be identified by two factors: (1) the blood-alcohol level is very high, commonly over .20%, and (2) he/she is a recidivist — that is, a repeat offender.
Thus, the first step is to identify the danger — the relatively small number of “problem drinkers” — and to stop filling our jails with social drinkers.
The second step is to decide what to do with this problem drinker/driver. Our present approach is purely punitive. But if we simply throw the alcoholic in jail for 6 months, what is accomplished? We’ve made the streets safe from him for 6 months — and on the day he gets out, he drives to the nearest bar and resumes his drinking. We have made no real progress: Our jails continue to burst at the seams, and the fatalities continue at their predictable levels.
I would suggest a rehabilitative approach rather than a punitive one, an approach which would actually take a step toward solving the problem rather than waiting for the vicious cycle to begin again. By now, most experts recognize that alcoholism is a disease, not a choice (the “choice” to drive, of course, is made by an inebriated person, and thus a Catch-22). And you don’t treat a disease with incarceration.
We recognize legal incapacity due to mental disease: the plea or verdict is “not guilty by reason of insanity”. The defendant is not simply set free, but is hospitalized for treatment of the disease until he is well. Why not treatment for problem drunk drivers who suffer from the (largely genetic) disease of alcoholism? In other words, why not recognize a plea of “not guilty by reason of alcoholism”? Again, this does not mean he “gets off”: he will be ordered to undergo rehabilitative therapy. In serious cases, mandatory commitment to a rehabilitative facility may be appropriate.
The choice is fairly simple: Do you want vengeance or safety? Would you prefer to have a chronic drunk driver off the road for a few months — or in control of his disease?
Taylor is a former prosecutor, Fulbright law professor, and author of the standard text “Drunk Driving Defense,” 6th ed.; his 11-attorney California DUI law firm is the largest of its kind in the nation.