Monthly Archives: May 2011

Laws Proposed to Regulate Police Abuse of DUI Sobriety Checkpoints

As readers of this blog know, DUI roadblocks (or to use the more politically correct term, "sobriety checkpoints") were found by the U.S. Supreme Court in a 5-4 decision to be constitutionally permissible.  See Are DUI Roadblocks Unconstitutional?  Although Chief Justice Rehnquist admitted that it was a violation of citizens’ Fourth Amendment rights, he said it was simply a "minor intrusion" and outweighed by government’s interest in reducing drunk driving.  However, the Court said, the "checkpoints" could only be used to detect and apprehend drunk drivers; they could not be used as a pretext for any other purpose.  This was later confirmed by the Court in City of Indianapolis v. Edmond, where roadblocks were being used to find drugs.

Despite the Edmond decision, local governments and law enforcement have increasingly set up roadblocks on the pretext of apprehending drunk drivers — but in reality using them as a lucrative revenue source to give citations and impound cars.  It is common to see "sobriety checkpoints" today which result in perhaps 1 or 2 DUI arrests — and 100 citations and impounds for lack of driver’s licenses, car registration, equipment violations, etc.  See, for example, DUI Roadblocks for Fun and Profit and The New "Highway Robbery": Money-Making DUI Roadblocks Growing.  

However, some citizens are beginning to object to this abuse of authority…

Santa Rosa Lawmaker Seeks to Regulate DUI Checkpoints

Sacramento, CA.  May 24 – A week after Nora Ramos gave birth by Caesarean section, she found herself walking five miles home with her husband and four children.
On their way from the hospital in Modesto, the family had been stopped at a DUI checkpoint. Ramos’ husband, who had been driving because his wife was dizzy from morphine, did not have a license, and police impounded their car.

That was four years ago. Today, Ramos is joining civil liberties groups and those advocating for minority rights, who say dozens of sobriety checkpoints throughout California have been used to generate impoundment fees rather than arrest drunken drivers.

They support a proposed law from Democratic state Assemblyman Michael Allen that aims to restrict the inspections to their intended purpose of stopping drunken driving.

"Yes, I understand, if they are drunk drivers, grab them, throw them in jail," said Ramos, who is 33. "But what about people who have nothing to do with that?"

Allen, from Santa Rosa, said cities and police have strayed from the original mission of checkpoints, increasingly using them to seize vehicles.
Impoundments increased 53 percent statewide between 2007 and 2009, according to his bill, AB1389. It says that in many cities, the ratio of impoundments to DUI arrests is 20 to 1…

The problem, according to Allen, is that many drivers and their families end up stranded once their vehicles are hauled off. Ultimately, they also forfeit the vehicles because they can’t afford the impoundment fees, which can be thousands of dollars.

That includes Ramos, who says her husband lost his construction job along with the family car.

"The idea that people lose their livelihoods because they can’t have family come help them doesn’t make sense to me," Allen said. "It seems cruel and heartless."

Zanipatin’s group, which is among more than 20 that officially back Allen’s bill, said cities and police misuse the checkpoints to make money.

"It’s a way for them to generate revenue, easy revenue that goes unchallenged," Zanipatin said…

Allen’s bill also would codify another court ruling, this one in California. Decided in 1987, the state Supreme Court case requires officers to conduct their checkpoints on roads that already have a high rate of DUI arrests or accidents, and then give advance notice of the location…

Hmmmm….I’m trying to imagine politicians giving up these roadblock "cash cows".

Blood-Alcohol Testing Questioned in Michigan

As my recent posts have indicated, there is a growing awareness in many states of the unreliability of blood-alcohol testing — and a growing willingness to shutdown testing statewide.  Now this from Michigan…

DUI Blood Cases Could Face Scrutiny After Judge’s Ruling

Lansing, MI.  May 11 – Blood tests in drunken-driving cases statewide will face more scrutiny, experts say, after a Mason County judge ruled that the state crime lab’s test results "are not reliable."

In a ruling signed Friday, 79th District Court Judge Peter Wadel refused to admit blood-alcohol results in a drunken-driving case. He said the crime lab – which conducts blood and other forensic tests in cases from around the state – does not report an error rate, or margin of error, along with blood-alcohol results.

Police routinely report a single number for blood-alcohol content in drunken-driving cases. But East Lansing attorney Mike Nichols, who is handling the case in Mason County – which includes the city of Ludington along Lake Michigan – said there are no absolutes in science.

"Everyone says a blood test is so accurate. Well, it’s not," Nichols said. "That’s what this judge has ruled."

Not including a range of possible results, Nichols said, ignores the uncertainties in the collection, handling, analysis and reporting process.

A blood-alcohol level of 0.08 percent is the threshold in Michigan for being charged with drunken driving. But Nichols said when someone’s blood-alcohol is determined to be 0.10, for example, it could actually be higher – or lower – than 0.08.

The Mason County case is being watched by attorneys across Michigan and the country.

Washington-based attorney Ted Vosk, who consults with defense attorneys and prosecutors about the importance of calculating error rates, praised Wadel’s ruling.

If police and prosecutors don’t acknowledge scientific uncertainties, Vosk said, innocent people will be convicted and guilty people will go free.

"And we won’t know which are which," he said…

Is it possible that law enforcement and the courts will finally stop ignoring science in DUI cases?

(Thanks to John Kruzelock.)

Another Widespread Failure of Breathalyzers

The unavoidable fact is that breath-alcohol testing machines used by law enforcement are unreliable and inaccurate.  

Vermont’s DUI Breath Testing Program Under Fire

Montpelier, VT.  May 15 – A mistake in the software set-up on a breath analysis machine and whistleblowers’ complaints about unethical lab work threaten dozens of drunken-driving prosecutions in Vermont.

At issue are breath tests performed by a DataMaster DMT machine at a Vermont State Police barracks that authorities say wasn’t set up properly. Amid a broadening inquiry by two defense attorneys, dozens of criminal convictions could be reopened and a handful of civil license suspensions are being overturned.

Hundreds of other cases since 2008 could be in jeopardy because of problems with the state Department of Health’s maintenance of the machines that are used at police stations and barracks to test drivers arrested for suspected drunken driving…

(David) Sleigh and fellow defense attorney Frank Twarog obtained copies of complaint letters written last year by two Department of Health whistleblowers who said sloppy and unethical work by a lab colleague had been reported but unaddressed.

First reported on by the Burlington weekly Seven Days, the letters written by chemists Amanda Bolduc and Darcy Richardson were obtained by The Associated Press through a Public Records Act request.

The Health Department withheld from The AP 16 emails dealing with the DataMaster issue. Assistant Attorney General Margaret Vincent asserted attorney-client privilege or "attorney work product" as the reason.

The whistleblowers’ complaints allege that laboratory technician Steven Harnois tampered with DataMaster machines to get them to pass routine performance checks and kept records so badly that it compromised the chemists’ ability to testify in court about readings.

"I have concerns in his level of integrity and ethics," Bolduc said. "These concerns have been brought to the attention of the program chief on numerous occasions, and still the problem exists," she wrote. Whenever she raised concerns, her boss retaliated against her for it, she said.

From Wikipedia’s definition of "pseudoscience":  

Pseudoscience is a claim, belief, or practice which is presented as scientific, but which does not adhere to a valid scientific method, lacks supporting evidence or plausibility, cannot be reliably tested, or otherwise lacks scientific status.[1] Pseudoscience is often characterized by the use of vague, exaggerated or unprovable claims, an over-reliance on confirmation rather than rigorous attempts at refutation, a lack of openness to evaluation by other experts, and a general absence of systematic processes to rationally develop theories.

Prosecutors Tell Cops to Lie in Trial About Breathlayzers

For nearly 7 years I've been blogging about the inaccuracy and unreliability of breath-alcohol testing machines.  See, for example, How Breathalyzers Work (and Why They Don’t)Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.  

So if they're so inaccurate, how can prosecutors convince juries to convict based upon these machines?  Well, usually they don't have to: the law in most states requires the judge to instruct the jury that the machines are presumed to be accurate!  See DUI and the Presumption of Guilt

And if that presumption might be rebutted by damning facts to the contrary, well….

DC Prosecutor Under Investigation for Unethical Behavior in Prosecution of Drunk Driving Cases

Wash, DC.  May 10 – FOX 5 has learned at least one prosecutor in the D.C. Office of the Attorney General is under investigation. The Office of Bar Council is looking into claims of unethical behavior in the prosecution of drunk driving cases.

As many as a half a dozen police officers and defense attorneys have been interviewed so far.

No one would talk about the investigation on the record Tuesday. In fact, the Office of Bar Council, which is the city agency that investigates attorneys, wouldn't even confirm an investigation.

But sources familiar with the probe say at least one prosecutor is under investigation for allegedly asking police officers to lie under oath on the stand.

But it goes deeper than that.

In the last several months, three D.C. Police officers, the Fraternal Order of Police along with three defense attorneys, have publicly questioned the behavior of prosecutors in the D.C. Office of the Attorney General.

Officers Ben Fetting, Andrew Zabavsky and Jose Rodriguez even took their stories to the D.C. City Council.

Back in February, an affidavit was prepared by the FOP and sent to the Inspector General in a request for an investigation.  It reads in part:  

“Both Officer (Jose) Rodriguez and (Andrew) Zabavsky were advised by the (Office of the Attorney General) to limit their testimony at DUI trials with regards to the problems with the Intoxilyzers.

“They were told not to answer questions about when they became aware of the problems with the equipment and told to say that they were not familiar with the problems or investigations even if they did know the answer. Both officers indicated they were unwilling to alter their testimony or perjure themselves.”

Additionally, according to the union:

“On September 27, 2010, Officer (Ben) Fetting was scheduled to testify in a DUI trial … Attorney Tamara Barnett of the (Office of the Attorney General) suggested that Officer Fetting not answer certain questions about the certification of the Intoximeters. Officer Fetting declined and when questioned … answered truthfully that he was aware that the Intoximeters had not been approved by the (Office of the Chief Medical Examiner).”…

Sources familiar with the probe say the Office of Bar Council is also looking into allegations prosecutors used scores from an uncertified breathalyzer in order to obtain guilty pleas in drunk driving cases…

The misconduct allegations began to surface after city officials revealed a little over a year ago the breathalyzers used by D.C. Police were not properly calibrated, calling into question thousands of convictions.

FOX 5 contacted the Office of the Attorney General Tuesday, but an official at the office declined to comment.

 Whatever it takes to win…

(Thanks to attorney Matthew S. Kensky of Fairfax, Virginia.)

Senators Pressure Apple, Google to Remove DUI Checkpoint Apps

It’s amazing how twisted things can get when politicians want to grab headlines…

Google, Apple Pressed to Remove DUI Checkpoint Apps

PC World.  May 11 – Google and Apple are under pressure from Senator Charles Schumer to remove smartphone apps that alert users to the locations of nearby police DUI checkpoints. These apps typically use your device’s GPS capabilities to alert you to nearby speed traps, red light traffic cameras, and DUI checkpoints from a database of user-generated locations.

Schumer asked Apple and Google to consider whether these apps violate the companies’ respective terms of service by facilitating illegal activity. These apps "endanger public safety by allowing drunk drivers to avoid police checkpoints," Schumer said during a hearing for the new Senate Judiciary subcommittee on privacy and technology…

Guy Tribble, Apple’s vice president for software technology, also pointed out during the hearing that many police departments across the United States already publicize the locations of DUI checkpoints.

Offering checkpoint apps is "facilitating illegal activity"?  Ok, Senator, here’s a refresher course on the Constitution….

A number of years ago the Michigan Supreme Court held that DUI roadblocks (aka "sobriety checkpoints) were unconstitutional. Such warrantless stops, the court correctly concluded, were a violation of the Fourth Amendment to the Constitution since American citizens cannot be stopped in their cars without reasonable suspicion to believe that they had committed a crime.

The United States Supreme Court thereafter reversed the state court. In Michigan v. Sitz, Chief Justice Rehnquist essentially admitted that the stops were violations of citizens’ rights — but found that these were only "minimal" violations. And these minimal intrusions, Rehnquist found, were outweighed by the more important interests of the government in ensuring safety on the highways. However, the Court left to the states the role of determining how to minimize these intrusions.

The first state supreme court decision to define these regulations was Ingersoll v. Palmer. In that landmark case, which has served as a model for other states, the California Supreme Court laid down ways to minimize the intrusions mentioned by the U.S. Supreme Court in Sitz. These procedures specifically included the use by police departments of  "advance publicity":

"Advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.

"The concurring opinion in State ex rel. Ekstrom v. Justice Ct. of State, supra, 663 P.2d 992, at page 1001 explained the value of advance publicity: "Such publicity would warn those using the highways that they might expect to find roadblocks designed to check for sobriety; the warning may well decrease the chance of apprehending ‘ordinary’ criminals, but should certainly have a considerable deterring effect by either dissuading people from taking ‘one more for the road,’ persuading them to drink at home, or inducing them to take taxicabs.

"Any one of these goals, if achieved, would have the salutary effect of interfering with the lethal combination of alcohol and gasoline. Advance notice would limit intrusion upon personal dignity and security because those being stopped would anticipate and understand what was happening." (663 P.2d 992, 1001, conc. opn.Feldman, J.; see also State v. Deskins, supra, 673 P.2d 1174, 1182.) Publicity also serves to establish the legitimacy of sobriety checkpoints in the minds of motorists. Although the court in Jones v. State, supra, 459 So.2d 1068, found that advance publicity was not constitutionally mandated for all sobriety roadblocks, nevertheless the court offered the observation, consistent with finding reasonableness under the Fourth Amendment, that [43 Cal. 3d 1347] "’[A]dvance publication of the date of an intended roadblock, even without announcing its precise location, would have the virtue of reducing surprise, fear, and inconvenience.’ [Citation.]" (Id., at p. 1080.)"

Gee, maybe that’s why, as the Apple V.P. tried to explain to Senator Schumer, "many police departments across the United States already publicize the locations of DUI sobriety checkpoints".

On the other hand, maybe the Senators should subpoena the state supreme court justices and find out why they’re " facilitating illegal activity".