Monthly Archives: January 2013
Most people don't realize that in most states it's a serious crime to take a picture or film a police officer. Recording a cop with your cell phone while he's busily beating a helpless citizen, for example, means you go to jail — not the cop!
So….Which offense do you think carries the greatest penalty — rape or recording a cop?
Wrong. In Illinois, for example, they carry the same sentence: 15 years in prison. That’s right: using your cell phone to record cops committing crimes can land you in prison for 15 years (although it’s perfectly legal for the cop to record you).
An eye-opening news video entitled "Valley Man Faces 75 Years in Prison for Recording Law Enforcement" documented the plight of Illinois citizen Michael Allison. Allison was facing 75 years in prison for five counts of openly audio taping public officials – a sentence usually reserved for murderers. When he sued police for discriminatory law enforcement, the judge at trial refused to provide a court reporter. Understandably wanting a record of the proceedings, including the cops’ testimony, Allison told the judge he would record them himself. He was later arrested and the recording confiscated.
These laws are not limited to Illinois. Designed to protect cops and public officials from public scrutiny, they exist in many states across the country. And one has to question why they exist at all in a supposedly free and open society — much less carrying sentences usually reserved for murderers and rapists. Are cops and officials that afraid of having their conduct exposed to the light?
I wonder if taping a cop in China, Russia or North Korea is punished as severely as in Illinois – if at all?
Our drunk driving laws make it a criminal offense to drive a vehicle while under the influence of alcohol (DUI) or while having a blood-alcohol concentration (BAC) of .08% or higher. It is not, however, a criminal offense to be under the influence or to have a blood-alcohol concentration (BAC) of .08% while taking a breath test in a police station an hour or two after driving.
So how does the prosecution prove what the BAC was when the defendant was driving?
It’s a problem. You can try to guess what the BAC was in a DUI case by projecting backwards, using average alcohol absorption and elimination rates, but it’s only a very rough guess. The process is called retrograde extrapolation — a fancy name for trying to guess backwards.
The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates depending on many variables. In one study, for example, researchers found a wide range of matabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. Dubowski, “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects”, Journal on Studies of Alcohol (July 1985).
As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged. From the recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma:
It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded.” 21(1) Journal of Forensic Sciences 9 (Jan. 1976).
So, Mr. Prosecutor, you’ve got a breathalyzer reading of .10% an hour or two after the driving and the scientists say you can’t accurately project that BAC back to the time of driving: if the blood-alcohol level was rising, it could have been a .07% or even lower. That kind of leaves you in a pickle. What do you do?
Simple: You just get the legislature to pass a law saying that the blood-alcohol when tested is the same as it was when driving.
What? But that’s not true: BAC constantly changes as alcohol is metabolized. How can we legally presume what we know is not true?
Well, yes, but we can never really know, can we? But it sure makes the prosecutor’s job easier, doesn’t it? Let the defendant try to prove what his BAC was an hour or two earlier.
That’s right: most states now have laws saying your BAC was the same 3 hours earlier — unless you can prove it wasn’t! Typical is California’s law:
It is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving”. Vehicle Code sec. 23152(b).
Wait a minute….What about the State having the burden of proof — proof beyond a reasonable doubt? How can the law simply presume guilt and force the defendant to disprove it? What about the presumption of innocence?
No problem: we already legally presume a person is under the influence if he has a blood-alcohol level of .08% — whether, in fact, he is or not. And he has the burden of proving he was not under the influence.
Let’s not get hung up on details. The important thing here is that we get these drunk drivers off the road, isn’t it?
Four days ago I posted about a case, Missouri v. McNeely, that was to be argued to the United States Supreme Court. See The Slow Death of the 4th Amendment in DUI Cases. The case involved the forceful use of hypodermic needles on drunk driving suspects. Following are comments from the Washington Post on the arguments yesterday and the justice's questions which may provide a window into this important issue:
Supreme Court Seems Unlikely to Let Police Order Blood Tests for Drunk Driving Suspects
Washington, DC – Jan. 9 — The Supreme Court on Wednesday seemed unlikely to allow police to routinely force suspected drunk drivers to give a blood sample without the officers at least trying to obtain a warrant from a judge.
There seemed to be little, if any, support for the proposition that the usual constitutional protections that require a warrant for searches do not apply in drunk-driving arrests. Missouri, backed by the Obama administration, argued that a suspect’s dissipating blood-alcohol content meant that, in effect, evidence was being lost and thus drawing blood should not require consent or a judge’s order.
That argument drew fire almost immediately.
“How can it be reasonable to forgo the Fourth Amendment in a procedure as intrusive as a needle going into someone’s body?” Justice Sonia Sotomayor asked. The justice, interestingly, is a diabetic who has given herself daily shots of insulin since childhood.
Justice Antonin Scalia immediately signaled that he considers a blood test different from other procedures the government may require.
“Why don’t you force him to take the breathalyzer test, instead of forcing him to have a needle shoved . . . in his arm?” Scalia asked John N. Koester Jr., the Missouri prosecutor presenting the case for his state. Koester replied that a breathalyzer requires the suspect’s participation.
For most of the hour-long argument, the justices seemed to be debating among themselves what emergency circumstances — an inability to contact a magistrate late at night, for instance — might allow taking blood from an uncooperative suspect…
Courts nationwide are divided about whether a 1966 Supreme Court ruling created an emergency exception to the warrant requirement for taking blood or whether ”special facts” must be present to make a warrant unnecessary.
Koester and Assistant Solicitor General Nicole A. Saharsky argued that the rapid dissipation of alcohol was enough to relieve law enforcement from the warrant requirement.
“The police are facing a destruction of critical blood-alcohol evidence,” Saharsky told the court. “Every minute counts, and it’s reasonable for the officers to proceed.”
But Justice Ruth Bader Ginsburg said that it is relatively easy and quick for police to get a warrant — a phone call is often enough — and that police could attempt to secure one in the time it takes to drive a suspect to a hospital for the procedure. If 30 minutes passes without an answer, perhaps the officer could proceed, she suggested.
Steven R. Shapiro, legal director of the American Civil Liberties Union, represented McNeely and told the court that Missouri, the states supporting it and the U.S. government are asking for too much.
“The issue in this case is whether the state may stick a needle in the arm of everyone arrested on suspicion of drunk driving without a warrant and without consent,” Shapiro said.
He has noted that states may revoke a driver’s license for a suspect who refuses to take a test, so there is an incentive to agree. Shapiro said half of the states — Maryland and Virginia as well as the District of Columbia are not among them — prohibit blood draws without warrants…
For a clearer picture of what we're talking about, see my posts Forced Blood Draws by Cops in Back Seat, Suspect Resisting Forced Blood Draw is Tasered, Dies and Catheter Forced Up Penis After DUI Arrest.
Breathalyzer evidence is critical in any drunk driving case — and mandatory in a .08% charge. Yet, as I’ve written repeatedly in the past, these machines are neither accurate nor reliable. See, for example, How Breathalyzers Work — and Why They Don’t, Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia and Report: Breathalyzers Outdated, Unstable, Unreliable.
And in today’s news:
JudgeThrows out Breath Machine Evidence
County judge in Pennsylvania rejects breath test machine as inaccurate beyond a certain range
Dauphin Co., PA. Jan. 8 –A judge in Dauphin County, Pennsylvania last week delivered a bombshell decision finding evidence provided by breath machines to be inaccurate outside a narrow range. After hearing extensive testimony from expert witnesses, the Court of Common Pleas judge found it was not appropriate for charges of “high rate” driving under the influence of alcohol (DUI) be established by providing a printout from a machine displaying a high number.
“The unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI, Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a defendant’s breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent,” Judge Lawrence F. Clark Jr. ruled.
In Pennsylvania, a separate “highest rate of alcohol” charge can be levied on a driver accused of having a BAC in excess of 0.16 percent. Enhanced penalties for this charge include a fine of up to $5000 for a first offense and a minimum three-day stay in jail. A third offense carries a minimum one-year jail sentence.
Testimony offered at the hearing showed the manufacturer of the Intoxilyzer failed to follow state rules requiring the solutions used to calibrate the breath machines be certified by an independent lab. CMI creates its own samples in-house, according to CMI engineer Brian T. Faulkner.
“As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth’s own witness, Mr. Faulkner, at the hearing,” Judge Clark wrote.
Since the machine did not follow state regulations, there was no way the court could determine whether the initial calibration of the machine was completed in a scientific and accurate manner. Moreover, the machine is only checked against samples of 0.05, 0.10 and 0.15 percent.
“If you’re calibrating from 0.05 to 0.15 and did these three points, you have the correlation coefficient, you’ve proven to me that your instrument works — definitely works between 0.05 percent and 0.15 percent. There’s no data to say that it works at 0.16 percent. There’s no data to say it works at 0.04 percent,” Lee N. Polite, an expert in organic chemistry, testified.
Despite the unreliability of thse machines, they continue to constitute the main evidence against a citizen charged with DUI — and the only evidence when charged with having over .08% blood alcohol.
Because of their unpopularity, drunk driving cases are often used by police and prosecutors to chip away at the constitutional guarantees of our citizens. See The DUI Exception to the Constitution. Every once in awhile, however, the media shows a little courage and gets it right. From an editorial in yesterday’s New York Times:
Is the Driver Drunk?
Jan. 5. New York, NY - The Fourth Amendment prohibits the police from searching individuals without a warrant, but the Supreme Court allows exceptions to that rule for “exigent circumstances” — when the police believe that the delay involved in getting a warrant would lead to destruction of evidence.
In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.
The Missouri Supreme Court wisely ruled that the warrantless blood test was an unreasonable search because there was no emergency that prevented the police from getting a search warrant in a timely manner before the alcohol in the driver’s blood dissipated.
Missouri is now asking the United States Supreme Court to overturn the state court ruling and to radically revise Fourth Amendment law so that police — without a warrant — can draw blood from every person arrested on suspicion of drunken driving, regardless of the circumstances. The United States government, siding with Missouri, argues that warrantless blood draws are needed “to prevent the imminent destruction of evidence.”
But in 21 states, including Missouri, the police have successfully obtained thousands of warrants to get blood alcohol evidence.
If the Supreme Court applies the blanket rule Missouri seeks, it will diminish constitutional rights without increasing public safety in any meaningful way.