Monthly Archives: February 2012

Growing Number of States Outlawing DUI Checkpoints

In recent times, I’ve detected a growing backlash against the excesses of the hysterical "War on Drunk Driving" — and even of politicians willing to question "The DUI Exception to the Constitution" and thereby risk MADD’s wrath come election time.  See, for example, Backlash, Forced Blood Draws: Citizen Backlash? and Catheter Forced Up Penis After DUI Arrest,  

One of the most egregious examples of the damage to our constitutional rights is exemplified by DUI roadblocks, aka "sobriety checkpoints".  I’ve posted often in the past about the inherent unconstitutionality of this clear violation of the Fourth Amendment.  See Are DUI Roadblocks Constitutional?.  And I’ve explained how roadblocks are ineffective and the only real reason these roadblocks continue to be used is that they are "cash cows" — they generate a lot of revenue for local municipalities from citations and car towing (usually for license, registration, insurance or equipment violations).  See Do DUI Roadblocks Work?, DUI Roadblocks for Fun and Profit and The True Purpose of DUI Roadblocks.

In the U.S. Supreme Court case that upheld sobriety checkpoints (Michigan v. Sitz), Chief Justice Rehnquist wrote for the 5-4 majority that although stopping drivers at a checkpoint without probable cause was an apparent violation of the Fourth Amendment, it was only a "minimal intrusion" on the rights of citizens — outweighed by the greater interest of the government in ensuring safety on the highways.  The case was sent back to the Michigan Supreme court to revise its previous decision reversing the DUI conviction.  

The Michigan Supreme Court refused to reverse its decision, again throwing out the conviction — on the new grounds that if DUI roadblocks are not a violation of the U.S. Constitution, they are certainly a violation of the Michigan state constitution.  In other words, the court said to Washington, "If you won’t protect our citizens, then we will".

Since then, 9 other states have joined Michigan in relying upon their own constitutions or laws to ban "sobriety checkpoints" (Idaho, Iowa, Montana, Rhode Island, Washington, Wisconsin, Wyoming, Oregon and Minnesota), and 2 (Texas and Alaska) prohibit them for other legal reasons.

In today’s news, another state is on the road to joining this growing backlash….

House Passes Bill That Would Get Rid of DUI Checkpoints

Salt Lake City, UT.  Feb. 24
—  Citing protection of personal rights and upholding the Constitution, Utah’s House of Representatives narrowly passed a bill that would ban DUI checkpoints in Utah.

Under House Bill 140, which was approved 41-33, checkpoints for fugitives, Amber Alerts and invasive species would still be allowed. But the practice of having officers stopping every car at a specific location for a period of several hours — looking for drunken drivers — would be banned.

"This doesn’t seem very consistent with the very unique idea of American government and law enforcement that we have," said Rep. David Butterfield, R-Logan, the sponsor of the legislation, about DUI checkpoints…

Butterfield said that the data he has found in researching this bill shows that of the 11 states that do not use DUI checkpoints, about half are in the top half of traffic safety in the nation, while the other half are in the bottom half of states in regard to traffic safety.

"The data shows no correlation between safety with those that do practice checkpoints and those that don’t," Butterfield said…

Rep. Craig Frank, R-Pleasant Grove, spoke in favor of the bill. Frank talked about his experience of being involved in a DUI checkpoint and stated that he felt his rights were being infringed upon while officers shone flashlights into his car searching for any questionable items, even though he gave no reason for police to suspect him of any crime.

"I was uncomfortable with that," Frank said.

Frank said he felt the practice of DUI checkpoints was well-intentioned but said that he felt that passing this legislation would help bring Utah back to upholding the Constitution and protecting people’s rights…

Butterfield’s proposal will now move on to the state Senate…

There would appear to be light at the end of this long, dark tunnel….

The Black Robe Pass

In my last post (The DUI Double Standard Continues), I commented on how cops commonly get a free pass when they’re caught driving drunk.  I should have added that this double standard is applied to judges, too….

DUI Charges Dropped Against Judge

Willowbrook, IL.  Feb. 15
– Charges were dropped Wednesday against a veteran Cook County judge accused of drunken driving last fall in Willowbrook, his attorney said.

Judge James Gavin was charged with misdemeanor DUI after police pulled him over Oct. 28 for using the shoulder to pass another motorist on southbound Illinois Route 83 after he had exited a tobacco store.

Police alleged that Gavin, 55, smelled of alcohol and failed an eye-gaze test before refusing to submit to other field sobriety and blood-alcohol testing. His license initially was suspended for his refusal to submit to the tests. But, on Dec. 7, DuPage County Judge Liam Brennan ordered that Gavin’s license be returned, ruling police lacked sufficient evidence to stop Gavin.

On Wednesday, at a hearing in which the defense sought to quash the arrest and suppress evidence, Brennan ruled that the act of driving on the shoulder absent other evidence of impairment was insufficient for the case to continue.

“The problem I have is all the other things that we typically look for to support a DUI arrest simply are not here,” said Brennan, according to a transcript provided by the defense. “Mr. Gavin was polite, oriented to time, place and person. I don’t think in the context of all the other things we expect to see and don’t see that there was reasonable grounds for his arrest.”…

Hmmmm…."The police lacked sufficient evidence to stop" the judge?  Since when is passing on a shoulder insufficient evidence to stop and ticket a driver?  

And "the act of driving on the shoulder absent other evidence of impairment was insufficient for the case to continue"?  Uh, what about smelling of alcohol, failing the "eye-gaze" nystagmus field sobriety test, refusing to take any more field sobriety tests and refusing all blood-alcohol testing?  And I’m pretty sure a few other things which are standard in any cop’s arrest report weren’t mentioned — slurred speech, bloodshot eyes, etc.  And what about the fact that a refusal to submit to testing is legally admissible as evidence of consciousness of guilt? 

Oh, right.  The judge must have been sober: he was polite, knew what time it was, knew where he was, and knew who he was.  Incredible.

For other examples of judges getting free passes, see When Judges Judge JudgesDUI Double Standard Continues, When Judges Protect Their OwnWho Will Guard the Guardians, and Who Judges the Judges?.

The DUI Double Standard Continues…

I’ve posted ad nauseum in the past about the double standard when it comes to cops who drive drunk.  See, for example, The Unwritten Code, The Blue Code: Cover-Up of a Cover-UpThe Blue Cover-UpThe DUI Double Standard, The DUI Double Standard 2, Guarding the Guardians and The Thin Blue Line for a few examples of this widespread practice.

The latest blatant example:

OWI Charge Against Keokuk County Sheriff Dismissed

Washington, Iowa.  Feb. 10
– The Washington County Attorney’s Office on Friday announced that it is dismissing a drunken driving charge against Keokuk County Sheriff Jeffrey Earl Shipley, 46, on the condition he receive alcohol evaluation and treatment.

Although Shipley no longer is facing criminal charges, the Iowa Department of Transportation now lists his driver’s license as invalid, a penalty under Iowa Code for refusing to consent to a blood alcohol content test.

It’s unclear how Shipley’s suspended license will affect his ability to do his job. Shipley on Friday declined to comment, and an official in his office also refused to answer questions.

Washington County Attorney Larry Brock said Friday that his office had sufficient evidence to prove Shipley guilty of OWI, but there were “additional factors” that led prosecutors to conclude they had a less than 50 percent chance of convincing a jury in Keokuk County to convict Shipley.

“The trial would take place in Keokuk County where Sheriff Shipley was elected in 2008 by receiving 49 percent of the vote in a four-person race,” Brock said. “Sheriff Shipley received the most votes in 14 out of 17 precincts thereby indicating that Sheriff Shipley received strong and widespread support throughout Keokuk County.”

Brock said his office also deferred prosecution because Shipley was “still coping with the tragic events” involving a fatal shooting of Keokuk County Deputy Eric Stein on April 4.

When asked if Shipley received special treatment, Brock said, Shipley did not.

“This case was a borderline case,” he said.

Shipley was not falling-over drunk, did not have slurred speech and refused to take blood alcohol content tests, leaving them without hard evidence, according to Brock.

Still, he said, investigators felt Shipley was guilty of OWI.

“One of the stronger pieces of evidence was his refusal to take a test,” Brock said, adding that if Shipley really had consumed only one beer, like he claimed, he would not have tested above the legal driving limit and should have been fine to take a test.

Among other evidence investigators had toward proving Shipley’s guilt was the “very strong odor of alcohol” coming from him when an Iowa State Patrol trooper initially pulled him over about 8 p.m. July 27 near the intersection of Highway 92 and Stone Street in Sigourney.

Shipley’s eyes were watery and bloodshot, and the trooper noticed Busch Light beer cans behind the passenger seat of his truck, which also smelled of alcohol, according to an investigation report released Friday.

Shipley, who had his 19-year-old daughter in the truck with him when he was pulled over, admitted to having one beer with his supper, according to the report. He had difficulty finding his registration papers when asked for them, the report states, and Shipley handed the trooper his concealed weapons permit when asked for his driver’s license.

Investigators said Shipley also “engaged in behavior which can be used by persons suspected of OWI to mask the odor of alcohol and interfere with certain breath tests,” according to the report. Brock wouldn’t elaborate on those behaviors.

Shipley didn’t cooperate with field sobriety tests, he refused to go to the booking room once taken to the law enforcement center, and he asked “why he was not being given any professional courtesy,” the report states. Shipley told a sergeant that he “knew (Shipley) could not take the tests.”

“Sheriff Shipley did not provide any details as to why he felt he could not take the tests,” according to the report.

This summer’s incident was not Shipley’s first alcohol offense. Shipley pleaded guilty on Nov. 25, 2008, to operating a motorboat while intoxicated. He was sentenced to pay fines and spend two days in jail in that case, according to Iowa court records.

Brock stressed that members of the public shouldn’t think they can get out of an OWI prosecution simply by refusing to take the tests. And, according to Iowa law, test refusal results in a one- to two-year license revocation…

Hmmm….So the prosecutor says that he had “sufficient evidence to prove him guilty”, but there were “additional factors”….like the Sheriff had political power in the county, and he was “coping with tragic events”.  Strange, as a former Deputy D.A. myself, I always thought the sole question for a prosecutor was whether the evidence showed a crime was committed.  Period.

A “borderline case”?….The Sheriff  had a “very strong odor of alcohol on his breath”, “eyes were watery and bloodshot”, had cans of beer behind his car seat, couldn’t find his registration, refused to cooperate with field sobriety tests, showed consciousness of guilt by refusing a breath or blood test, refused to go to the booking cage, and wanted “professional courtesy” — i.e., a blue get-out-of-jail-free pass.  

Borderline?  In the D.A.’s office, we would have called this one a “slam-dunk”.

(Thanks to Bob Matura.)

When It Looks Like a Duck, Walks Like a Duck, Talks Like a Duck….

The use of DUI quotas — requiring patrol cops to arrest a minimum number of citizens for drunk driving — is usually illegal or against public policy, primarily because it forces cops to arrest drivers who are innocent. 

Yet, the simple fact is that many — maybe most — police agencies across the country use them.  See, for example, DUI Quotas, "Inside Edition" Documents DUI Quotas Across U.S. and "Yes, We Have No Quotas".  And another simple fact is that police agencies routinely deny they are using quota, preferring instead to call them such things as "guidelines", "objectives" or "performance standards".

And the reason for the continued use of DUI quotas is simple:  money.  Cities strapped for revenue have discovered that drunk driving arrests are a lucrative source of revenue.  See, for example, DUI: Government’s Cash Cow and How to Make a Million in the DUI Business.  This is commonly accomplished through the use of quotas and  sobriety checkpoints (aka DUI roadblocks).  See DUI Roadblocks for Fun and Profit.

Are State, Feds Tying Police Grant Money to DUI Arrest Quotas?

Chicago, IL.  Feb. 11 – One DUI arrest every 10 hours.

Police call it an “objective.” Or a “guideline.”

Former Will County State’s Attorney Jeff Tomczak calls it a “quota.” And he said the language — found in the fine print of grants funding some suburban police patrols — could undermine drunken-driving cases when they reach a courtroom.

“I haven’t seen anything like this before,” said Tomczak, now a criminal defense attorney.

Local law enforcement officials say Tomczak’s wrong. Under a real quota system, officers get punished when the numbers don’t add up. That’s not the case here, they said, and there must be some way to find out if federal money has been spent wisely.

“There is no quota system in the Will County Sheriff’s Office,” Deputy Chief Ken Kaupas said.

But Tomczak’s not alone. The Governors Highway Safety Association also said the grant language should be changed, but not for fear of a legal challenge.

Executive director Barbara Harsha said the public simply might not like it if officers are told how often to make an arrest, and that could make the job harder for police.

The grants in question are funded federally but distributed by the Illinois Department of Transportation, which wrote the “performance objectives” in the documents to offer some accountability to the National Highway Traffic Safety Administration.

The grants are designed to help police cut down on alcohol-related crashes and curb drivers’ dangerous behaviors.

A Will County IDOT grant from 2009 to 2010 said deputies were expected to write one ticket or warning each hour they were on patrol and make one drunken-driving arrest every 10 hours.

Similar language can be found in grants given to Shorewood and Minooka around the same time.

But Kaupas said his agency didn’t quite meet that mark last year.

He said Will County made three DUI arrests in 157.5 officer hours during alcohol-enforcement details funded by IDOT in May, August and September. To meet the grant’s “performance objectives,” that number should have been more like 15 or 16…

Tomczak said defense attorneys could use the grant to suggest officers are being compelled to make arrests. He’s even made the argument, putting Will County Sgt. Steve Byland on the stand during a DUI case last month to talk about the traffic division Byland leads.

Byland told a judge his department has no quota system, but he said it would have to answer to a grant representative if the numbers fail to add up.

“If he does not make a certain rate per se,” Byland said, “then we would have to explain to him what happened that month.”

Kaupas said IDOT-funded details are always summarized in a report to the agency.

Tomczak’s client eventually was found not guilty. But Harsha said she hasn’t heard of a DUI arrest being thrown out of court for such language.

She did say IDOT should consider asking officers to make a certain number of traffic stops or “interactions” with the public — not arrests. She said most states steer away from the language used by Illinois.

“There’s no rule that says you can’t have an objective that has a certain number of arrests per hour,” Harsha said.

“But it does give the appearance of having a quota.”

  Yes, it does give that "appearance", doesn’t it?  As the Mad Hatter said to Alice in Through the Looking Glass:

“When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is”, said Alice,”whether you can make words mean so many different things.”

“The question is”, said Humpty Dumpty, “which is to be master — that’s all.”

The Old Story: Cops Covering for Cops

Police officers continue their MADD-inspired "War on Drunk Driving", setting up DUI roadblocks and roving patrols, meeting DUI quotas, and nailing anyone remotely suspected of driving under the influence….unless it's another cop.

It's long been a common practice for cops to cover-up for other cops, of course, particularly where drunk driving is involved.  And I've posted repeatedly in the past about this "Blue Code".  See, for example, The Unwritten Code, The Blue Code: Cover-Up of a Cover-Up, The DUI Double Standard and Guarding the Guardians

But the Code continues….

SAPD Investigating 7 Officers After Alleged Drunk Driving Accident, Attempted Cover-Up, San Antonio, TX.  Feb. 6 – The San Antonio Police department has launched an investigation into seven of its officers after an apparent alcohol-related crash and a possible cover up, San Antonio Police Chief Bill McManus said.

Chief McManus said the off-duty sergeant was apparently driving under the influence, headed north in an unmarked patrol car on Highway 281 and crashed into a barrier near Josephine at about 5:30 Thursday morning. The sergeant wandered away from the vehicle to a building several blocks away, where security guards called police.

McManus said a "number of improprieties" were found involving six responding officers during the initial investigation, including an attempt to take the sergeant home and remove evidence from the car.

The sergeant is a 20 year veteran of the force who had been working the night before the accident and some of his officials responded, McManus said. The sergeant's blood was drawn "within hours" of the accident but he was not arrested.

"I don't take this lightly. I take this very, very seriously and I think our actions have proven it," said McManus.

McManus would not identify any of the officers involved and he would not release the results of the blood or urine test. He also wouldn't detail what lead up to the accident or where the sergeant was headed.

The responding lieutenant, three sergeants and two officers are being investigated, he said. The sergeant driving the vehicle is on administrative leave and the six others on administrative duty. McManus said the criminal and internal investigations are ongoing.

An officer at the scene who reported the incident is not facing any charges.

Maybe there's hope.  One of the eight cops decided not to dishonor the oath he took when he put on a badge.