Monthly Archives: December 2010

The DUI Double Standard In China

I’ve posted often in the past about the hidden double standard in enforcing drunk driving laws against cops, judges and politicians.  See, for example, The DUI Double Standard, The DUI Double Standard IIThe Blue Cover-Up, Guarding the Guardians and Who Will Guard the Guardians?.    

Is Criminalizing Drunk Driving Unfair to Public Servants?

China, Dec. 26 — Chinese lawmakers have proposed making drunk driving a criminal offense in China, no matter the degree of damage caused. But some members of the National People’s Congress Standing Committee argue that criminalizing drunk driving would be unfair to public servants, because if they committed such a crime, they would not only face criminal punishment but also lose their jobs. They argue that the consequence is too severe…

Hmmm…..Sounds a lot like the double-standard applied to our own civil servants, but at least the Chinese are a lot more open about it.

Blood Sample Analysis: .15%….But Was It Yours?

Let me tell you about one of my law firm’s DUI cases that ended up in a Los Angeles Times article entitled “DUI Case Botched by Blood Mixup”.

One of the attorneys in the firm had a young client who had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower than the police analyss, but still a long way from being under .08%. As we requested, they also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared to be in order.

Our client still insisted he was not driving under the influence of alcohol. The only other reasonable possibility was a faulty chain of custody. In other words, the LAPD lab got the vial  of our client’s blood mixed up and tested someone else’s blood. Kind of like the work they did in the O.J. Simpson case.

So we had the sample blood-typed to see if it was that of another arrestee. Result: type “O”– the same as our client’s. But, then, that’s the most common type of blood.

We decided to try something different, something that, to our knowledge, had not been done before in a DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to an independent laboratory in Oklahoma that specialized in DNA testing.

A month or so later the report came back: the blood tested by LAPD was conclusively not that of our client.

The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges.  Predictably, in the L.A. Times article LAPD tried to point the finger at someone else:

Police officials said they are investigating how the mix-up occurred and who is responsible,  But, they said, they are fairly confident that the lab did not make a mistake.  One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD’s jail intake facility in Van Nuys. 

Typically, the police claimed infallibility: “We do not make mistakes…It was the nurses”. 

So how could this have happened? The truth is that it probably happens far more commonly than we suppose.

When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then shaken and sealed. Procedures require that a chain of custody be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else’s vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage and refrigeration. At any stage of this chain of custody, of course, things can go wrong with the vial or the records.

It may be a week or so before the vial is finally analyzed. This is commonly done using gas chromatograph instruments, and the vial is one of many analyzed in large “batches”. A batch is a group of vials, perhaps 40 or more, which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial after another. Of course, it is critically important that the sequence of tests by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won’t be just one person whose blood is falsely reported: every other vial will also be one off — and will all be wrong.  And you have 40 people people facing criminal charges based upon false evidence.

“How do I know the blood they tested was mine?” Simple – if you can get a portion of the sample from the crime lab and have an extra $1200 for DNA testing laying around. 

Otherwise, I guess you’ll never know….

The Blue Cover-Up

I’ve often posted in the past about a double standard when it comes to enforcing drunk driving laws against police officers.  See, for example, Who Will Guard the Guardians?, The DUI Double Standard, The DUI Double Standard IIGuarding the Guardians.  As news over the weekend reflects, the cover-ups continue….

Drunk Driving Double Standard

Hartford, CT.  Dec. 19 – It opens with a pleasant holiday jingle, and what looks to be some festive Christmas lights.

And then comes a startling screech of metal before the camera pulls back to show police lights and sirens and state police spokesperson Lt. Paul Vance delivering this stern message:

"Nothing shatters the holidays faster than a car crash. The state and local police are cracking down on speeding, unbuckled drivers and drunk driving this season."

"We will stop you," Vance warns over an image of a tombstone, "before you put an end to your holiday or someone else’s."

Unless, of course, you’re a cop in Windsor Locks or Bristol these days. And then, well, the tough guy bit makes way for a kinder, gentler approach.

If you’re a Bristol officer, for example, you apparently get a written warning for driving too fast after slamming your cruiser into a utility pole and knocking out power to a whole neighborhood.

In case you missed that story, here are the highlights: On June 26, former Bristol Police Officer Robert Mosback reported for duty after drinking a beer and two rum and Cokes at a party earlier that evening.

Shortly after his shift began, Mosback totaled his cruiser and caused $100,000 worth of damage. But there wasn’t a peep about possible misconduct from his department until a worker’s comp employee uncovered hospital reports that showed Mosback was intoxicated and denied the city’s claims.

Mosback quit three days after the city got the medical report. And earlier this month, state police who were called in to conduct an independent investigation, charged Mosback with drunken driving.

In an arrest affidavit, Mosback insists he wasn’t drunk: He napped before his shift, he said. And this doozy: His hospital tests must have been switched with another patient’s.

Then there’s the now well-known case of Windsor Locks Officer Michael Koistinen, who struck and killed 15-year-old Henry Dang on Oct. 29 after an apparent night of drinking.

As far-fetched as Mosback’s "switched sobriety test" defense, Koistinen’s claim that he wasn’t drunk when he slammed his car into Dang as the teen bicycled home, is even more suspect. His father, a Windsor Locks sergeant, was briefly in charge of the crash scene and, despite officers on the scene noting a case of unopened beer in his car, Koistinen wasn’t given a sobriety test.

Koistinen, who eventually was fired after state police took over the investigation, now faces a number of criminal charges, including manslaughter. His father, Sgt. Robert Koistinen, remains on paid administrative leave.

"The police are cracking down on drunk driving," warns the spot now airing for the holidays.

Good, except does that apply to everyone – or only to those who aren’t cops?

So who guards the guardians?

MADD’s Futile “War on Drunk Driving”

MADD continues to claim victory in it’s aging "War on Drunk Driving", citing its own self-serving statistics.  See for example, Lies, Damned
Lies and Madd Statistics
, MADD "Statistics Again Debunked and A Closer Look at DUI Fatality Statistics.  But the reality is that unconstitutional laws, unfair procedures, Draconian penalties and rampant denial of due process have done little if anything to reduce the incidence of drunk driving.

40 Million in U.S. Driving Drunk or Drugged

Bloomberg Business News, Dec. 9 – Despite massive efforts to curb drunk driving, some 30 million Americans are driving drunk and another 10 million are driving drugged each year, federal officials report.

In fact, in some states the number of drunk and drugged drivers tops 20 percent, according to a report released Thursday by the Substance Abuse and Mental Health Services Administration (SAMHSA).

"This is a pretty high percentage of people that are operating a motor vehicle under the influence of something," said Peter Delany, director of SAMHSA’s Center for Behavioral Health Statistics and Quality…

On the plus side, there has been a small drop in the rate of drunk and drugged driving in the past few years.

Data from 2002 to 2005 shows the annual rate of drunk driving has dropped from 14.6 percent to 13.2 percent, compared with data from 2006 to 2009. In the same time periods, the annual rate of drugged driving dropped from 4.8 percent to 4.3 percent, according to the report.

In all, 12 states had a reduction in drunk driving, and seven have seen lower levels of drugged driving…

Anna Duerr, a spokeswoman for the advocacy group Mothers Against Drunk Driving, said her organization was pleased to see a decline in the numbers of drunk and drugged drivers. 

MADD is declaring victory in its "War on Drunk Driving" after a slightly more than one-percent drop?  As I wrote over four years ago, perhaps it’s time to take another approach to the drunk driving problem.  See
Time For a Change.

Entrapment in DUI Cases

Suppose a police officer asks or orders an individual to drive a vehicle — and then arrests him for DUI when he complies?

This situation comes up more often than you might think. Take, for example, the following case that eventually made its way to the New Jersey Supreme Court….

The defendant asked his brothers at a wedding reception to drive him home because he was too intoxicated to drive. In the parking lot, however, the brothers got into a fight, attracting the attention of local police. One of the officers struck a brother with his nightstick. The defendant asked the officer to quit hitting his brother. The officer replied by ordering him to leave the parking lot. When the defendant did not immediately comply, the officer repeated the order and then forcefully escorted him to his truck. The defendant obediently got into the vehicle, started the engine — and backed into a police car.

He was arrested for drunk driving.

At trial, the judge ruled that the defendant had failed to prove entrapment or duress as a defense, and he was convicted. On appeal, however, the conviction was reversed on grounds of quasi-entrapment — that is, the defendant should have been acquitted if he could show that but for the officer’s order to leave in the vehicle he would not have driven. The prosecution appealed this reversal to the state’s supreme court.

Incredibly, the supreme court reversed the lower court and reinstated the conviction. Its reasoning? “Obviously,” the court said, “if the law were to permit [drunk drivers] to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear”. The court continued its twisted logic:

No one ordered the defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through the use or threats of violence. The police officers merely ordered defendant to get in his truck and leave the scene of the fight…(Emphasis added.)  State v. Fogarty, 607 A.2d 624 (N.J. 1992). 

This “no win” scenario is fairly typical of what I repeatedly refer to as the “
The DUI Exception to the Constitution”.