Monthly Archives: July 2013

Federal Pressure on States to Lower Limit to .05% “Falling Flat”

I've posted recently about the Federal government's attempt to pressure the states to lower the blood-alcohol level from .08% to .05%.  See Federal Agency Recommends New DUI Limit: .05% and Reactions to the Fed's New .05% Limit   Presumably, the Feds intend to follow the same tactic as they did in eventually getting all states to lower the BAC level from .10% to .08%:  threaten them with the withholding of all highway funds.

If a recent meeting of the governors of those states is any indication, the bullying approach may not work.  From yesterday's Washington Times:  

Federal Push to Lower DUI Levels Falls Flat with States

Washington, DC.  July 15 — A federal attempt to lower driving-under-the-influence blood alcohol limits is falling flat in the states and even groups like Mothers Against Drunk Driving are not advocating for it.

The National Transportation Safety Board is recommending the legal limit drop from .08 to .05. The justification: Drivers with .08 alcohol levels have twice the chance of getting in a wreck as drivers with .05 levels.

But MADD isn’t endorsing — and neither is the Governors Highway Safety Association, The Hill reported.

“We don’t see any state going to .05,” said Jonathan Adkins, deputy executive director for the governor’s safety group, in The Hill. “This doesn’t seem to be getting any traction.”

States would have to approve any laws to lower the limit.

And Indiana state Rep. Terri Austin said that doesn’t look likely.

“I think legislators are going to want to have a pretty compelling case,” he said, in The Hill.

You know the Feds are in trouble when even MADD is not supporting the lower level.  But don't discount the power of bureaucrats when they hold the purse strings.

Cops Using Duplicate Reports in DUI Cases

As any experienced DUI attorney knows, many police officers are considerably less than honest in their written DUI reports and in their testimony. One of the practices where this is most readily apparent is the use of what I’ve called "Xeroxed Symptoms". This is the tendency to "observe" exactly the same "symptoms" in different persons the officer arrests for drunk driving.

With Officer Jones, for example, the suspect fumbles with his wallet when getting his driver’s license, leans against the car for support, and stumbles on the eighth step out on the heel-to-toe test — in multiple cases. Officer Smith, on the other hand, seems to only encounter citizens who weave on the highway, admit to having three martinis, and in the walk-and-turn test lose their balance when turning around on the heel-to-toe.

If a criminal defendant did this, we would call it "signature" evidence. When a DUI officer does it, we call it "coincidence".

The phenomenon is so common that I described it in the original edition of my book, Drunk Driving Defense, first published 32 years ago (now in its 7th edition). "To determine whether xeroxed symptoms exist", I wrote, "counsel should include in his discovery motion a request for all reports made out by the officer in other DUI cases during a given period of time — for example, for 15 of the officer’s working days before and after the arrest". In later editions, I commented on the increasing use of computers by DUI officers to create reports — and on the tendency to "patch" text from one report into another.

These claims have, of course, been loudly and indignantly denied by prosecutors and law enforcement.

Well, imagine my surprise when a fellow DUI attorney, Cole Casey, forwarded a news article from the San Francisco Chronicle with the headlines "Suspicious Reports Ensnare Officers". The sub-headlines further declared, "False, repetitive statements filed in dozens of cases":

Seven times in the past three years, veteran Pittsburg (California) police officer James Hartley reported remarkably similar behavior by drunk driving suspects as they tried to walk a straight line…Hartley wrote in his reports that each suspect "stumbled after the second step" but kept walking, then "flung" his arm or leg out for balance before turning around, staring at the officer and asking, "Now what?".

It wasn’t a coincidence. Hartley and Officer Javier Slagado — Officer of the Year in 2001 — admit filing dozens of falsified reports. 

While it’s not clear whether the two men discussed the practice, authorities said they used old arrest reports as templates — often with few changes — rather than writing reports from scratch on drug and alcohol cases.

"In some cases, prosecutors said, entire paragraphs appeared verbatim from one report to the next. Much of the redundant information involved field sobriety tests used to establish cause for an arrest and a blood or urine test….

So what does an officer get for filing false reports, felonious perjury, and sending dozens of possibly innocent citizens to jail? Six months of watching TV at home for each.

The Unknown Factor in a DUI Case

The single most important factor in whether an individual will be arrested for driving under the influence (DUI) is not the evidence. It is the individual human differences of the officer himself. A study by the National Highway Traffic and Safety Administration [U.S. Department of Transportation Report No. H5-801-230] points out the effect of these differences on an officer’s observations and conduct in the field:

"The officer’s age and experience play a role in his alcohol-related arrest decisions. Younger officers, and those with relatively few years of seniority, tend to have a more positive attitude toward alcohol-related enforcement and make more arrests on that charge than do older officers. This result was found to hold true regardless of the type of department in which the officer serves or the specific type of duty to which he is assigned.

"The officer’s personal use of alcohol is inversely related to his level of alcohol-related enforcement. Patrolmen who drink make significantly fewer arrests than those who do not, and those who drink frequently make significantly fewer arrests than those who use alcohol only occasionally.

"Lack of knowledge concerning the relationship between alcohol and intoxication is widespread among police officers and imparts a negative influence on alcohol-related enforcement. Most officers underestimate’often by a wide margin’the amount of alcohol a suspect would have to consume in order to achieve the statutory limit of blood-alcohol concentration.

"Specialized training has a strong positive influence on alcohol-related arrests. Patrolmen who have received instruction in the operation of breath testing devices and/or in alcohol-related enforcement’particularly in municipal departments’were found to lack this specialized training. "Specialization in duty assignment can also enhance alcohol-related enforcement.

Patrolmen assigned to traffic divisions, in particular, produce higher arrest rates than those charged with general patrol duties. "Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests. "Weather conditions also affect alcohol-related arrests.

There is encouraging evidence that foul weather has a positive influence on the attitude of many officers; they are more appreciative of the risk posed by an alcohol-related suspect when driving conditions are hazardous, and are less likely to avoid the arrest when those conditions prevail.

"The suspect’s attitude can have a strong influence on the arrest/no arrest decision. If the suspect proves uncooperative or argumentative, a positive influence for arrest results. Conversely, the likelihood of arrest decreases when the suspect seems cooperative.

"The suspect’s race is a key distinguishing characteristic in alcohol-related cases. The officers surveyed’the overwhelming majority of whom were white’reported releasing significantly more nonwhite suspects than they arrested. The data do not suggest that this reflects a greater tendency to exercise discretion when dealing with nonwhite drivers. Rather, the officers seem more willing to initiate an investigation when the suspect is not of their own race.

"Suspect’s age is another distinguishing characteristic of these cases, and patrolmen reported releasing significantly more young suspects than they arrested. This appears to stem from two distinct causes. First, young officers exhibit more sympathy for young suspects, i.e., seem less disposed to arrest a driver of their own age group. Second, older officers seem more willing to stop young suspects, i.e., are more likely to conduct an investigation when the driver is young, even if the evidence of alcohol-related violation is not clear.

"Suspect’s sex also plays a role in the arrest/no arrest decision. Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming."

Who Cares About Drunk Driving Suspects?

For many years now I’ve written and lectured extensively on drunk driving litigation –on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing. In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases.

So who cares about drunk drivers and their constitutional rights?

You should care.

The importance of what is happening in DUI law and procedures can be summarized in one word: precedent. We are a nation of laws, more specifically, the common law inherited from the British legal system. Unlike most nations, which use some version of the French civil law where laws are found in codes, we look to the precedent of judicial decisions interpreting statutory law. When a court looks at the facts in a specific case, it applies not only statutes but decisions in appellate court cases to determine what the law is.

The genius of this common law system of precedent is its flexibility; its flaw is what many call "judicial legislation". The flaw becomes particularly noticeable when dealing with politically unpopular subjects. And few topics are as politically "incorrect" as drunk driving. Judges are, after all, politically sensitive animals who want to be reelected. Put another way, it is very easy to rule in favor of the prosecution in DUI cases — particularly when powerful pressure groups like Mothers Against Drunk Driving (annual revenues of over $47 million) are so vocal in elections and in legislatures.

There are few advocates for the accused or the Constitution during election campaigns. This judicial attitude is not limited to judges considering re-election. A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights. To mention just a few examples:

Michigan v. Sitz. The Court held that sobriety roadblocks were permissible — despite the fact that there is no exception in the Fourth Amendment for stopping citizens without reasonable suspicion.

South Dakota v. Neville. The Fifth Amendment right against self-incrimination was held inapplicable in drunk driving cases (refusing to submit to testing).

Blanton v. North Las Vegas. Even though punishable by six months in jail, fines and diver’s license suspension, there was no Sixth Amendment right to a jury trial in a Nevada drunk driving case.

California v. Trombetta. Although police normally have to save evidence, they do not have to save breath samples — by far the most important evidence in a DUI case — for defense re-analysis (even though it is easy and inexpensive to do so).

So…we have seen a steady flow of appellate decisions at all levels taking away the constitutional rights of those accused of DUI.

Again, so what?

Again, precedent: What happens today to a citizen accused of DUI can happen tommorrow to a person accused of any other crime. If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, is already already happening). If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of tax evasion or any other offense.

The danger of precedent in the DUI field is not limited to judicial decisions. Legislatures are also guilty of passing unfair and/or unconstitutional — but politically popular — statutes. We have certainly seen a seemingly unending series of unfair and unconsitutional statutes across the country in recent years: immediate license suspensions by the police without prior review of the evdience; double jeopardy/punishment (DMV license suspension and criminal prosecution); so-called per se laws (.08% blood-alcohol is illegal, even if the driver is not impaired); presumption of guilt (if .08%, the driver is presumed to be under the influence — even if he is not; if .08% when tested, he is presumed to be .08% when driving); ad nauseum. And having passed such laws relating to DUI, they are less reluctant to do so in other areas as well.

So who cares about DUI?

To paraphrase a famous quote about the Jews in Nazi Germany, "First they came for the drunks, but I was not a drunk so I did not speak up….."