Monthly Archives: June 2012

Court Finds Cop “Immune” for DUI Arrest Without Evidence

The following facts are fairly typical of what happens in a disturbing number of DUI cases:  

Ohio: Federal Court Overturns Bogus DUI Arrest

Chillicothe, OH.  June 19 — A sober woman is fighting back after she was falsely arrested and imprisoned for driving under the influence of alcohol (DUI). The Sixth Circuit US Court of Appeals ruled last Wednesday that Catrena Green could proceed in her lawsuit against Ohio State Highway Patrol Trooper Adam B. Throckmorton after lab tests proved she had a blood alcohol content (BAC) level of 0.0 and no drugs in her system.

The three-judge panel overturned the decision of a US district court granting Throckmorton immunity for his actions in Chillicothe, Ohio in August 2008. He had seen Green’s SUV driving in the opposite direction with her high beams activated. Throckmorton made a U-Turn and pulled her over in stop recorded by a dashboard camera. Green explained she had her high beams on because it was difficult to see in the wet conditions and she was trying to be careful. She asked whether she had done anything else wrong.

"No, not really," Throckmorton said during the stop. "You just brighted me and blinded me."

Throckmorton then claimed that Green’s pupils were "constricted" and that she had difficulty getting out of her seatbelt. Though Green did not smell of alcohol or drugs, Throckmorton decided to perform field sobriety tests on her. He noted that she was unable to follow the swift motion of his pen in a horizontal-gaze nystagmus test that he spent twenty seconds administering. He noted that "she talked slowly" while repeating the letters of the alphabet beginning with "L" and ending in "S." She struggled to stand on one leg in the balance test. Green, who was 42 and overweight at the time, swayed slightly while performing the walk-and-turn test.

On the basis of those tests, Throckmorton arrested Green for DUI. She spent two days in jail while trying to meet bail with only a credit card. Green argues she was detained and tested without probable cause, in violation of the Fourth Amendment. She insisted that the lab tests proved the trooper was lying.

"We find her argument persuasive," Judge Ronald Lee Gilman wrote for the court. "What matters here, rather, is what mattered in Miller: that a subsequent test for drugs and alcohol showed that the driver was in fact sober. That evidence alone is sufficient to cast doubt on the truthfulness of Throckmorton’s testimony regarding Green’s pupils."

The court decided that a jury should decide whether there were specific and articulable facts, not just a hunch, justifying Green’s detention for the sobriety tests.

"We understand, of course, the difficulty inherent in making on-the-fly determinations regarding possible driving impairments, just as we recognize the severity of drunk driving and the potential consequences of an incorrect call had Green ultimately proven to be impaired," Judge Gilman wrote. "But this difficulty and these consequences always exist when an officer stops someone for a traffic violation. Yet officers do not have free rein to administer field sobriety tests to whomever they please and then to arrest that person for making the slightest misstep while performing the tests. Whether that is what happened in this case is a question for the jury."

So….no erratic driving….no slurred speech….no alcohol on the breath….no swaying or poor balance….no bloodshot eyes…no difficulty understanding directions.  But she used her bright lights, had trouble standing on one leg (42, overweight and nervous) and "failed" a nystagmus test which was clearly incorrectly given. Oh….and she had no alcohol or drugs in her body.

The only question here is:  Why did the lower court give this idiot a free pass?  Since when do cops have "immunity"?  

New Concept from Canada: Licenses Suspended “Indefinitely” in DUI Cases

I've written in the past about the guilty-until-proven-innocent approach to DUI license suspensions and the almost complete lack of due process.  See, for example, "Due Process" for DUI License Suspensions, Secret Memo: DMV License Suspension Hearings Rigged and Judge: DUI License Suspension Hearings "Unacceptable".      

In California, for example, when a citizen is suspected of drunk driving and is arrested, the cop confiscates the license and gives the suspect a "Notice of Suspension".  The citizen has 10 days in which to call the DMV to demand a hearing, or the right to contest the cop's automatic suspension is lost.  If a hearing is granted, it will be at the DMV's offices; the prosecutor will be a DMV employee with a high school degree.  Oh yes, and the judge will be….the same person.  Right: judge, jury and executioner — without any legal training and answerable only to his/her employer — the DMV.

As bad as this is, apparently our northern neighbors in the province of Alberta have gone a step further:  unlike DUI suspensions in the U.S., which are for a specific period of time, those in Alberta are for an indefinite period — until the criminal charges are "resolved" in court.  In other words, the accused — guilty or innocent — is coerced into pleading guilty if he wants his license back.

Lawyers Call Alberta's Drunk Driving Penalties Unconstitutional

Edmonton, Alberta, Canada.  June 19 – Civil Liberties Association lawyer Joseph Arvay has been retained by Alberta firm Roadlawyers, which specializes in drunk driving cases, one of several that are decrying the Alberta government’s decision to indefinitely suspend licences of drivers who blow over the Criminal Code limit of .08 blood-alcohol content.

Drivers police deem are over the .08 limit will immediately have their licences suspended without even seeing a judge, a penalty that will remain in place until the charge is resolved in court.

“I think it’s clearly contrary to the Constitution and clearly contrary to the Charter (of Rights and Freedoms),” said Roadlaywer attorney Tim Foster.

“We intend to challenge the legislation as soon as we get retained on a file dealing with one of these — we’re going to bring a Constitutional challenge to try to strike the law down.”…

In what’s being called a first for Canada, Transportation Minister Ric McIver came out Monday saying drivers who blow over .08 will be hit hard with an indefinite suspension starting July 1, one of several get-tough measures rolled out in the Traffic Safety Amendment Act passed last year.

McIver said drivers simply weren’t refraining enough from tipping their glasses before hitting the roads and harsher penalties were needed to ensure “all of us feel more secure when we go out on Alberta roadways.”

Many lawyers, however, say the new penalties are nothing more than a tactic that will strong-arm drivers into issuing guilty pleas rather than challenge their cases in court.

“There’s some good and bad about that from a public policy perspective,” said Alan Pearse, who specializes in DUI cases in Calgary.

“The good news is you will almost certainly force guilty people to plead guilty. The bad news is you’re likely going to force some innocent people to plead guilty as well.”

Lawyer Bob Sawers called it the government’s way to “extort” guilty pleas from Albertans who can’t afford to lose their licences for several months and said he would demanding trial dates be set within two months.

Apparently, Transportation Minister McIver's idea that "harsher penalties were needed to ensure all of us feel more secure" is to simply force anyone suspected of drunk driving to plead guilty.

I can imagine prosecutors, cops and Mothers Against Drunk Driving drooling over the idea of adopting this approach in the States….

DUI Suspect Forced to Have Penis Catheterized

Just when you thought MADD’s "War on Drunk Driving" had reached the limits of sanity…. 

Man Sues Police Over ‘Forced Catheterization"

Salt Lake City, UT.  May 24 - A 22-year-old college student has filed an $11 million federal lawsuit against police in central Utah, claiming they forced a catheter in him after he refused to consent to a search for marijuana…

“I don’t think it’s right what they did,” Cook told FOX 13 on Thursday. “I’m pretty sure they’re doing it to other people. They made me feel like an animal.”

The former Snow College student said he was smoking cigarettes with friends back in 2008 when police approached their car, parked on a roadside in Ephraim. His lawsuit, filed in February in U.S. District Court, claims police searched the young men and their vehicle. The police claimed they could smell marijuana, but could not find any during a search, Cook claims.

After a K-9 still could not find marijuana, an officer popped the trunk and found a glass pipe inside. Cook claims the officers then asked him to drive his friend’s car to the police station.

“If somebody’s under the influence of marijuana, the last thing you want to do is put them in a car and drive,” said Cook’s attorney, Lindsay Jarvis. “That goes against every statute the state has, and so that’s where it gets a little frustrating and it gets out of control from there.”

Cook said he believed that after driving his friend’s car to the police station, he thought he would be free to go. Instead, he was put in a holding cell and officers demanded he take a drug test.

“I asked for an attorney because I didn’t know if this was right what they were doing,” he said. “Once I did that, they said ‘We’re getting a search warrant so we’re going to have your urine by the end of the night.’ “

Police obtained the warrant, his lawsuit claims, and they drove him to Sanpete Valley Hospital. After being told that a catheter would be inserted into his body to obtain urine, Cook said he said he would consent to giving a sample but became “nervous” and could not urinate.

“The nurse told (an officer) to hold my shoulders, so he held my shoulders and then the nurse undid my pants, wiped me down with iodine and put the tube in me,” Cook told FOX 13. “And then they took me to jail.”

Cook was arrested for marijuana possession and resisting arrest. Jarvis said the resisting arrest charge was for refusing to give a urine sample. She accused police of “bullying” people with forced catheterization.

“This is being used as a punishment to try and get them to comply,” she said. “Rather than employ a simple blood test, they’re forcibly catheterizing these people.”

Forced catheterization is a relatively new issue in the courts. A similar lawsuit was filed by a woman in 2008 against police in neighboring Sevier County. It was dismissed after a federal judge ruled the officers acted without malice and their intent was to “bring her to justice” for the charges she was facing at the time…

“I want them to be accountable for what they did,” Cook said.

If you think this incident in 2008 is an isolated one, you may be surprised to discover that forced catheterization for urine samples is a growing DUI law enforcement technique.  See, for example,  Catheter Forced Up Penis After DUI Arrest (Washington) and DUI Cops Inspired by CIA? (Indiana).  Forced draws of blood with syringes have already become a staple in the "War" – including draws with syringes used by the cops themselves:  Taking Blood by Force, Forced Blood Draws by Cops Spreading and Blood Draws in the Backseat by the Dashboard Light.     

When the Innocent Plead Guilty

I’ve often been told, "Well, if he pled guilty he must have done it!"  This is wrong on so many levels that I don’t know where to begin…  

Certainly, in DUI cases, the reasoning is wrong as drunk driving is somewhat unique among criminal offenses.  There are two offenses (in most states carrying identical penalties), and most individuals arrested will be charged with both: (1) driving under the influence of alcohol, and (2) and driving with a blood-alcohol level of .08% or higher.

Problem #1:  Since individual tolerance varies, it is difficult to presume impairment from a blood-alcohol level.  Further, at what point does the driver know he is impaired?

Problem #2:  How does the driver know what his blood-alcohol level is when he’s driving?  Can he tell the difference, for example, between .07% and .08%?  (Well, you say, he shouldn’t have been driving if he was even close.  So do we convict citizens who are "close" to driving over the speed limit?)

But there are larger issues involving those who plead guilty to DUI — issues involving the increasingly coercive nature of the judicial system, as a respected retired federal judge has noted today:

Why Do Innocent People Plead Guilty?

Huffington Post, June 6 – Prison is Hell for the guilty; it is difficult to envision what it must be like for the innocent. Brian Banks is yet another story of a person not only wrongfully imprisoned, but imprisoned based upon his own "voluntary" act. He was exonerated after serving five years for a rape he did not commit. How and why do innocent people confess or plead guilty to crimes that they did not commit? Roughly 20 percent of those that have been exonerated confessed to the crimes with which they were charged and convicted. Most of those involved persons who had actually gone to trial, but we have no way of knowing how many there are who merely entered guilty pleas through bargains and never appealed as a result. Although we hear and read about criminal trials, the reality is that only about 5 percent actually go to trial and the balance are resolved by plea agreements…

What apparently happened here (based upon his version) is all too typical of what happens in the criminal justice system. I call it the "Ins of Court" — intimidation by the prosecution and incompetence by the defense. The defendant, frightened, most often poor, uneducated, a minority member is advised that a trial is likely to end with a conviction and a long sentence, whereas a plea will guarantee a much shorter sentence. Despite his protestations of innocence, the defendant seeks guidance frequently from an over-worked, underpaid defense lawyer who would much prefer a quick deal rather than a long drawn out trial. Of course, not all defense counsel fit that description. Many do not, but even the best and most devoted are required to put this draconian choice to their clients — a guaranteed short sentence versus a potentially long one — possibly life in prison.

The problem is further complicated by the fact that it is more difficult to set aside a guilty plea than a conviction after trial. Once a person has admitted guilt and spelled out the details of the crime sufficient for the court to accept the plea, the chances of reversing such convictions are very slight if not nil. Most do not try. Mr. Banks had the fortitude to continue his fight even after he had been paroled and was fortunate in eliciting a recantation from the complaining witness. Such instances are very rare. Thanks to the tenacity of the California Innocence Project it happened here.

The reality is that without plea bargains the entire criminal justice system would come to a halt. Charges would be tried ten years after they were made. The only solution is vigilance by all those involved. The prosecutor, defense counsel and the court must be satisfied of the defendant’s guilt before urging or accepting a plea. I recognize that there is no avenue to absolute certainty because the knowledge of guilt or innocence lies with the defendant, but all involved must strive not to imprison the innocent — even those who profess to be guilty.

It is common in drunk driving cases for the prosecution to offer the defendant a plea bargain, for example, of a guilty plea to the .08% charge with a dismissal of the DUI charge, and a promise of only two days in jail — with the understanding that if he goes to trial and loses, the judge will sentence him to 60 days in jail.  (Note: Most judges dislike trials, as they back up their busy caseloads, so are anxious to dispose of cases by plea — and inclined to punish those who "waste the court’s time".  Accordingly, it is often commonly understood in any given courtroom that the sentence will be far worse if you refuse the plea bargain offer and insist on your constitutional right to jury trial.)

So….The defendant thinks he is probably innocent and his attorney tells him that you has a good case:  in his opinion, he has a 50% chance of being acquitted on both counts.

What would you do?

Crossing the Thin Blue Line

I’ve posted repeatedly in the past about the double standard in DUI law enforcement, and more particularly on the "pass" cops get when they drive drunk.  See for example, Guarding the Guardians, The Blue Cover-Up, The Thin Blue Line and The Unwritten Code.

It would appear that this "unwritten code" is not limited to the U.S….

Rookie Cop ‘Harassed and Berated’ After Arresting Off-Duty Officer

Toronto, Canada.  May 29 – It’s an impaired driving case like thousands of others except it involves a rookie Toronto police officer who crossed the thin blue line and paid the price.

Const. Andrew Vanderburgh was “harassed and berated” by fellow officers because on Nov. 28, 2009, he arrested and charged an off-duty police constable with impaired driving and having a blood-alcohol level over 80 milligrams, according to an internal police disciplinary ruling.

Some officers also allegedly called Vanderburgh a “rat,” Justice Paul Reinhardt wrote in a pre-trial ruling.

On Tuesday, Vanderburgh was in Old City Hall court to testify at Breton Berthiaume’s long-delayed impaired driving trial. He declined to comment except to say that while he does not regret charging a fellow officer, the fallout has been difficult.

Also in court was Const. Suhail Khawaja, who accompanied Vanderburgh in his squad car the evening of the arrest.

That night, Vanderburgh and Khawaja went to Berthiaume’s home in High Park after a 911 caller reported seeing someone driving erratically on the Don Valley Parkway, and had recorded the licence plate number.

Some officers there “took exception to a police officer being charged or investigated,” Crown Attorney Mary-Anne Mackett told court Tuesday, providing an overview of the convoluted 2½-year-old case.

Reinhardt, who is no longer the judge in the Berthiaume case, said in his pre-trial ruling that disclosure he reviewed alleged Khawaja “refused to assist Constable Vanderburgh in the arrest and preparation of paperwork at 22 Division.”

“Constable Khawaja is purported to have stated on more than one occasion that evening to different informants that he wanted nothing to do with the arrest of a fellow police officer,” Reinhardt wrote.

Vanderburgh, meanwhile, continued to pay a price.

After Berthiaume was released, Vanderburgh drove a marked police vehicle back to his division and was followed by a 22 Division cruiser driven by Const. James Little.

Little pulled him over and gave him a ticket for allegedly disobeying a red light, which was later dismissed. Last year, Little pleaded guilty to one count of discreditable conduct under the Police Services Act.

Little chose “to disregard his professional obligations and embark on a course of retaliatory action against a colleague performing his sworn, lawful duty,” Supt. Robin Breen wrote in his ruling.

“He abused his position to express his personal displeasure about his colleague’s arrest of an off-duty police officer.” Little was docked 20 days’ pay.

Two other officers, including a staff sergeant who failed to intervene, were disciplined in the incident. One was also docked 20 days’ pay, the other 15.

Apparently, the only difference we have with our northern neighbors is that the Canadian cops are punished for their conduct.