Monthly Archives: April 2012

A Fading Constitution – DUI Roadblocks

As I’ve mentioned in past posts, the U.S. Supreme Court years ago reversed a Michigan State Supreme Court decision and held that DUI roadblocks (aka “checkpoints”) are not violations of the Constitution.  See Are DUI Roadblocks Constitutional?  Since then, a growing number of states have relied upon their own constitutions to ban the practice. See, for example, Growing Number of States Outlawing DUI Roadblocks.

Since then, it has been common practice for police to pull over any driver who appears to be avoiding a roadblock.  And the question has arisen:  Does turning around, say, a block ahead of the checkpoint, constitute sufficient reasonable suspicion of intoxication to justify pulling the driver over?  In almost every case, the courts have held that it does not: mere avoidance is not an indication of drunk driving and so cannot be used to justify a stop and detention.

The Supreme Court of South Dakota, however, has decided that although turning around to avoid a roadblock is not enough, it becomes sufficiently “suspicious” if the turn is a wide one — even if a legal one!

South Dakota Supreme Court: Avoiding Nighttime Roadblock is Suspicious

The, April 25 — Avoiding a roadblock is, in effect, sufficient justification for police to pull over a driver, the Supreme Court of South Dakota ruled last Wednesday. The justices unanimously ruled that avoidance itself technically is not enough, they approved the most minor of “suspicious” circumstances to justify pulling over any motorist who does not want to be stopped and interrogated at a checkpoint.

The decision came in the case of Ryan Rademaker, who had been driving a friend home at 1am on a Sunday. As he saw the blockade on the highway ahead, Rademaker turned off on a gravel road. A highway patrol officer issued orders to a local police officer who understood his mission was to stop Rademaker for avoiding the roadblock. The officer testified that he did not observe Rademaker violating any traffic laws, but the officer noted the driver made a “wide turn.” The officer also noted, after he activated his red lights, that Rademaker might have been speeding.

The court looked to the question of whether the officer violated Rademaker’s Fourth Amendment rights and whether there was reasonable suspicion that Rademaker may have been involved in criminal activity. Rademaker cited a series of Eight US Circuit Court of Appeals decisions that concluded avoiding a roadblock is not enough to justify a traffic stop.

“In light of this line of case law, we join the Eighth Circuit in holding that avoidance of a checkpoint alone is insufficient to form a basis for reasonable suspicion,” Justice Lori S. Wilbur wrote for the court. “However, the Eighth Circuit was clear that checkpoint avoidance is indeed suspicious and thus our analysis does not end here.”

To uphold the conviction, the justices turned to the “totality of circumstances” doctrine to find a number of elements that are not in themselves criminal but lend enough to rationalize the officer’s actions in the court’s eyes.

“In addition to the checkpoint avoidance, the trial court also relied on two other suspicious factors: the time of day, 1 am and the police officer’s observation that Rademaker made an unusually wide, but legal, turn,” Wilbur wrote. “Both this court and the Eighth Circuit have used the time of day as a ‘factor’ in determining whether reasonable suspicion exists… Likewise, this court recently held that a wide turn, even if not in violation of any traffic laws, may be sufficient in some circumstances to engender reasonable suspicion.”

As a result of the high court’s finding, Rademaker’s conviction for driving under the influence of alcohol (DUI) was upheld. Alaska, Idaho, Iowa, Michigan, Minnesota, Montana, Oregon, Rhode Island, Texas, Washington, Wisconsin and Wyoming outlaw DUI roadblocks as a violation of their state constitutional protection against warrantless search and seizure.

Amazing.  A turn that is legal but “unusually wide” (whatever that means) is enough to pull over a driver on suspicion of drunk driving.  This is an example of what I meant in the banner at the top of this blog by “a fading Constitution”.

The Scarlet Letter Again…

In the opening of Nathaniel Hawthorne’s classic novel The Scarlet Letter, set in 17th-century Puritan Boston, a young woman who has been convicted of adultery is led through the streets of colonial Salem, a scarlet letter "A" pinned to her chest. The townspeople watch approvingly, gossiping and enjoying her humiliation.

Fast forward….Mothers Against Drunk Driving and their cohorts seem intent on resurrecting humiliation as an added punishment — but only in DUI cases.  See, for example, The Scarlet Letters, The Return of the Scarlet Letter and The Scarlet Letter Revisited.  

The most recent manifestation of this archaic witch-hunting:

Houston Man to Wear Placard Saying He Killed a Man

Houston, TX.  April 19 - A driver who served time in jail for killing a man in a drunk-driving accident in Harris County will now have to advertise his crime by wearing a sign in public.

Harris County Court-at-Law Judge Michael R. Fields has ordered Michael Giacona, 39, to wear the sign, which states “I killed Aaron Coy Pennywell while driving drunk,” during four consecutive Saturdays as part of his two-year probated sentence…

Giacona was ordered to wear the sign from 9 a.m. to 5 p.m. at the accident scene, starting this Saturday.

Aside from the issue of public humiliation generally, one has to ask the question:  Why only drunk drivers?  Why aren’t rapists, drug dealers, child molesters and murderers forced to wear signs as well?  

State Supreme Court: No Forced Blood Draws

I’ve written in the past about the increasingly common practice of cops to pin DUI suspects down and forcefully withdraw blood from them.  In some cases the needle is wielded by medical staff — and in others by the cops themselves.  See Taking Blood by Force, Forced Blood Draws by Cops in Back SeatForced Blood Draws by Cops Spreading and Forced Blood Draws by Cops: Constitutional?  

How far will the courts permit these kinds of police state tactics?  One state supreme court has just drawn the line:

Illinois Court Blocks Forced Draw From Motorist

Chicago, IL.  April 16
– An increasing number of states allow police to use any level of force needed to take blood from a motorist accused of driving under the influence of alcohol (DUI). In Ohio and Texas this procedure is explicitly authorized by statute. In Washington, the state Supreme Court decided to sanction the practice on its own authority. Last Tuesday, the Illinois Court of Appeals was unwilling to take that extreme step.

A three-judge panel upheld a trial court’s determination to suppress the evidence created when police held Jacqueline Farris down and forcibly drew her blood. On May 12, 2009 at around 10:30pm, Officer Kevin Orms arrived at the scene of an accident in the village of Bradley and found Farris behind the wheel of one of the vehicles involved. She smelled of alcohol. Orms had her taken to the hospital where he asked for consent to draw her blood. Farris refused. Officer Orms then ordered a nurse to take the blood by force. Three personnel were required to hold Farris down because she resisted.

Lab results showed the blood alcohol content (BAC) of the Farris sample was estimated at 0.285, but a lower court threw out the evidence as inadmissible. Under state law, forcible blood extraction is only authorized when a driver causes death or the personal injury of another driver, passenger or pedestrian.

Prosecutors argued that the officer had probable cause to suspect Farris of being drunk, and there was not time to obtain a warrant before the alcohol would dissipate. In agreeing with the lower court, the appellate majority cited a 2005 state Supreme Court precedent that allowed testing without consent in cases of death or injury but did not touch on cases where no injuries occurred.

"In Jones our supreme court was quite clear that there is no practical need for physical force in obtaining bodily fluid samples since the Vehicle Code eliminates any advantage a DUI arrestee might hope to gain from refusing chemical testing," Judge William E. Holdridge wrote for the majority. "As the Jones court noted, the defendant’s refusal to comply with the request for a sample, in and of itself, is sufficient to justify a statutory summary suspension of the defendant’s driver’s license, the purpose of which is to protect the public from intoxicated motorists."  People v. Farris.

This court prohibited forced blood draws in a medical setting.  Other courts, however, have actually approved the forceful extraction of blood by the cop himself — even when done in the back seat of a patrol car.  See, for example, Would You Want a Cop Taking Blood From You?

Super PACs Now Buying Judges, Too

We all know the impact the Super PACs are having on who will be representing us in our state and national governments.  Most senators, congressmen, governors, etc., are now pretty much bought-and-paid-for by Big Money’s deep pockets.  This is largely thanks to the U.S. Supreme Court’s recent decision which found that financial limits cannot be placed on them.  Apparently, the Court feels that corporations are "people", too, and therefor have a constitutionally-guaranteed right of free speech.  In other words, corporations and fat donors dumping tons of money on political candidates are protected by the Bill of Rights!  

This, of course, opened the floodgates:  Big Money is now busily exercising their newly-discovered "free speech" by  buying up judges, too….

Super PACs, Donors Turn Sights on Judicial Branch

Orlando, FL.  Mar 29
– Just before sunset on a recent evening, scores of lawyers in dark suits and polished loafers streamed into the swanky 18th-floor ballroom of a downtown high-rise here. They sipped chardonnay and nursed Heinekens, munched on cheese cubes and made small talk.

The invitation to the event had asked for a “suggested contribution” of $500 to each of three candidates, who were now mingling sheepishly among the crowd. They were no ordinary politicians. In fact, they weren’t politicians at all, but rather Florida Supreme Court justices. Each has been in office since the 1990s, each retained by voters overwhelmingly in previous elections, and each now reluctantly campaigning — for the first time.

 While deep-pocketed super PACs and ultra-wealthy donors have attracted plenty of attention in the presidential contest this year, they are also making waves further down the political food chain. The mere possibility that a rich benefactor or interest group with endless amounts of money could swoop in, write massive checks and remake an entire court for ideological reasons has prompted judges here in Florida and elsewhere to prepare for battles they never expected to fight.

The three justices sipping water and shaking hands in the ballroom decided months ago that they needed to campaign early and hard. They saw two of their colleagues targeted in 2010 after the court refused to allow a ballot measure opposing a key provision in President Obama’s health-care plan. They knew the organizers of that effort, angry about what they call “judicial activism,” had promised to step up their campaign and had formed a political organization that by law can raise unlimited money.

The judges were less than excited about having to ask people for money.

“It is almost embarrassing to be doing it,” Justice Fred Lewis said…

Those challenging the judges say their actions offer a way to inform the public and hold the judiciary accountable. The judges say they welcome accountability but want to protect the independence of the bench.

Like judges elsewhere, those in Florida remain rattled by what happened two years ago in Iowa, where three state Supreme Court justices who had upheld a ruling in favor of same-sex marriage lost their jobs after a vitriolic million-dollar campaign to unseat them — money coming almost entirely from outside the state. In the preceding decade, not a single dollar had reportedly been spent on Iowa’s high court elections…

Judicial elections have long drawn the interest of wealthy benefactors, business and labor groups, and trial lawyers, but watchdog groups say they are particularly troubled by a new trend: The universe of big donors has grown smaller and more concentrated.

In a 2010 study that examined 29 judicial races, the watchdog group Justice at Stake found that the top five spenders averaged $473,000 apiece, while all other donors averaged $850. In addition, loopholes in disclosure laws gave those big donors ways to spend money “in substantial secrecy,” the report found.

“Outside forces are becoming a bigger deal,” said Roy Schotland, a Georgetown University law professor and expert on judicial elections. “We’re seeing more takeover of the races from the outside.”

Schotland said state judicial races are increasingly becoming “floating auctions,” in which special-interest groups focus money and manpower in states where they can upend judges they don’t like. “The justices are like sitting ducks,” he said…

I wonder what the going price is for a judge?

Obama’s Uncle Gets the Royal Treatment

And I thought only cops and judges got special handling when they drive drunk….

On the Road Again: Obama’s ‘Drunk Driving’ and Illegal Immigrant Uncle Allowed to Drive Again After Hardship License is Approved 

Boston, MA.  April 3 –Just a week after President Obama’s uncle pleaded guilty to drunk driving and surrendered his driver’s licence, he’s back behind the wheel.

Onyango Obama, 67, was approved for a ‘hardship licence’ yesterday, which allows him to drive in Massachusetts from noon to midnight.

The Boston Herald reported that Obama, the half brother of the president’s father, convinced a Registry of Motor Vehicles panel that an inability to drive would adversely affect his job as a liquor store manager.

And, despite his status as an illegal immigrant, his request was approved…

Obama, of Kenya, is also appealing a deportation order that dates to 1992, when he failed to renew his application to remain in the U.S.

The drunken driving charge will be dismissed if he stays out of trouble for a year, officials said.

Obama was arrested in Framingham in August after a police officer said he made a rolling stop at a stop sign and nearly caused the officer’s cruiser to crash into his sport utility vehicle.  Once pulled over, the DA said Obama’s speech was slurred, ‘his eyes were red and glassy and there was an odor of alcohol coming from inside the motor vehicle.’

Obama then failed several field sobriety tests and his blood alcohol was almost twice over the legal limit, reports the Herald.

It must be nice to be the uncle of the President….