Archive for June, 2010

An Interview….

Monday, June 28th, 2010

Last week I granted an interview which touched on a broad range of interesting subjects.  Videotapes on YouTube of the 50-minute interview may be of interest to readers of this blog, both attorneys and laymen…. 

     DUI: The nature of the crime  (5:29)

     What is wrong with the present system of drunk driving laws and law enforcement?  (3:48)

     Are tougher DUI laws making it harder to defend a DUI client?  (5:49)

     What advice do you have for drivers who are stopped for a possible DUI?  (6:22)

     What are the most serious consequences of a drunk driving conviction?  (2:04)

     What are the best DUI defenses?  (3:26)

     Can you get a fair trial in a drunk driving case?  (3:28)

     How hard is it to get a DUI charge reduced?  (3:07)

     How can an attorney become more effective at defending DUI cases?  (2:08)

     You've created the term "the DUI Exception to the Constitution":  Do you see a growing loss of constitutional rights generally?  (3:26)

     What tips do you have for attorneys representing a DUI client today?  (2:33)

     How have you become the best-known DUI attorney in the country?  (2:58)

     Many years ago you decided to represent DUI clients exclusively:  Why?  (5:33)


The interview and taping was conducted by representatives from   


No Probable Cause Necessary for DUI?

Sunday, June 27th, 2010

Police agencies across the country continue to deny that they employ DUI quotas — which force officers to make unjustified stops and/or arrests.  See, for example, DUI Quotas, Yes We Have No DUI Quotas and "Inside Edition" Documents DUI Quotas Across the U.S.   A few agencies, however, actually brag about them. 

Deputies Get Quota for Hoopfest DUI Patrols

Spokane, WA.  June 26
– Spokane County sheriff’s deputies have been asked to contact at least three motorists per hour this weekend as part of extra impaired driving patrols…

A Washington State Patrol Cessna plane will be above the city today and Sunday to catch impaired reckless drivers.  When the plane isn’t up, the sheriff’s helicopter will be.

The sheriff’s office has scheduled extra patrols for impaired drivers and boaters.  Deputies have been asked “to make at least three motorist contacts per hour and to have a zero tolerance for impaired drivers.”…

So…Stop at least three citizens every hour on suspicion of drunk driving — whether there is any sign of impaired driving or not!  

There goes "probable cause" and the Fourth Amendment again:  the "DUI Exception to the Constitution".


State Supreme Court: Treat Misdemeanor DUI as Felony

Saturday, June 26th, 2010

About 20 years ago, I coined the phrase "The DUI Exception to the Constitution" to describe a disturbing but growing treatment of DUI as a "politically incorrect" offense.  Created and fostered by the demonization of the crime  by Mothers Against Drunk Driving, the pressures on legislators and judges — most of whom face MADD's wrath at re-elections–  resulted in the steady erosion of  constitutional rights, accurate evidence and fair trials.

In today's news: 

DUI Charge Without Being Seen Driving
Albuquerque, NM.  June 26 – The New Mexico Supreme Court has ruled that cops can arrest someone for drunk driving, even if they never saw that person driving. The court's ruling centers around a case from December of 2007.

A mall employee tipped off Santa Fe police about Marcos Martinez, saying he was drunk and tried to unlock several vans before finding his and speeding off.

By the time police tracked down Martinez, using his license plate number, he was already home.  Officers say Martinez was falling-down drunk when he came to the front door. The officer felt the hood of Martinez's van, and it was still warm. 

The officer never saw him driving but arrested him anyway.

Martinez fought the DWI charge and the case was dismissed, but the state's highest court decided his aggravated DWI charge should stand.

“It shouldn't just be a free pass because you were able to beat the police home," Albuquerque Public Safety Director Darren White said, 

Gary Cade with the Bernalillo County District Attorney’s office explained this change in policy now means, “The police will handle DWI’s like they handle felony crimes.” 

He went on to say that cops won't need to spend time getting a warrant…

Officials hope this decision will encourage even more people to report suspected drunk drivers. 

In other words, all misdemeanor offenses must meet legal procedures such as observation of the offense and the need for warrants — except drunk driving, which will be treated as a felony.  

Yet another in the unending examples of what I labelled "The DUI Exception to the Constitution" 20 years ago.


“Yes, We Have No DUI Quotas”

Sunday, June 13th, 2010

As every experienced DUI attorney (and patrol cop) knows, DUI quotas commonly exist — despite the repeated denials of police bureaucrats.  See my past posts DUI Quotas, "Inside Edition" Documents DUI Quotas Across U.S. and "What DUI Quotas?"

They may be unwritten, or disguised as "suggestions" or "guidelines", but the intent to the patrol cop is clear:  make the quota or else.  And the coercive effect of this can be considerable, leading many cops to make arrests where there may be insufficient reason to do so.

In today’s headlines:

Alabama Troopers at Birmingham Post Instructed to Cite More for DUI

Birmingham, AL.  June 13 —   The number of tickets for DUI written by state police from the Birmingham post doubled in March after a memo from the acting post commander threatened to punish any trooper who did not make at least three DUI arrests by the end of that month.

Trooper officials defended the memo from now-retired Sgt. Steve Bryant and obtained by The Birmingham News. The memo said each trooper should make at least three DUI arrests by the end of March, and that those who failed to do so could lose their day-shift assignments or opportunities for overtime pay…

"Initially, this issue is lose-lose for both sides of the table; the trooper on the roadway and the citizens of this area," said Whitney Polson, a DUI defense attorney in Homewood.  "The arrest determination should be based upon facts, not threats of lost pay and time away from the family," Polson said.

Polson and another attorney also said they believed the quota in the e-mail could cast doubt on the legitimacy of DUI arrests.

Phillip Price, a Huntsville attorney and author of the legal reference Alabama DUI Handbook, said he believes quotas exist in law enforcement but he had never seen it put in writing like that before…


400 Wrongly Convicted in Washington: Faulty Breathalyzers

Thursday, June 10th, 2010

I’ve posted well over 100 times during the past six years on this blog about the multitude of reasons why breath alcohol machines are both inaccurate and unreliable.  See, for example, How Breathalyzers Work (and Why They Don’t), Breath Alcohol Testing: "State of the Art"?, Breathalyzer Inaccuracy: Testing During the Absorptive Stage, "Close Enough for Government Work" and Why Breathalyzers Don’t Measure Alcohol.

In today’s news, just another example of the tens of thousands of American citizens who face "trial by machine"…and are wrongly convicted: 

Wash., DC.  June 10 – Nearly 400 people in Washington, D.C., have been convicted of driving while intoxicated based on faulty breath tests that calculated blood alcohol levels about 20 percent higher than the reality.

D.C. Attorney General Peter Nickles said the problem was caused when a police officer set improper baseline levels on the machines, the Washington Post reports. Nickles’ office is contacting the convicted drivers and their lawyers.

About 200 of those convicted spent some time in jail, the story says. At least one lawsuit has already been filed based on the revelation.

Nickles’ office launched an investigation after an outside consultant indicated a possible inaccuracy.

(Thanks to Steve Oberman, Nashville, TN, co-author of my book Drunk Driving Defense and Dean of the National College for DUI Defense.)