Monthly Archives: December 2013
Driving under the influence of drugs ("drugged driving" or "DUI drugs") is becoming increasingly prevalent in DUI arrests.
Clearly, the use of drugs — illegal and prescription — has become more common among drivers, but arrests in the past have not reflected this increase. The problem law enforcement has had in making arrests — at least without the availability of a DRE ("Drug Recognition Expert" or "Drug Recognition Evaluator") officer — was the lack of immediate chemical testing in the field. See my post How Accurate is Detection and Evidence of Drugged Driving?. Absent expertise in recognition of drug usage symptoms, cops lacked the necessary "reasonable suspicion" or probable cause to arrest so that a blood sample could be taken later at the police station or at a medical facility.
As the following article in yesterday’s Los Angeles Times reflects, this is now in the process of change — and I expect this will quickly spread from the Los Angeles Police Department (originators of DRE training) to other law enforcement agencies throughout the country. The process involves a cheek swab, with results being tested within 8 minutes by a new system used in the field and made by Draeger (the German manufacturer of breath-alcohol testing devices).
Portable Drug Test a New Addition at New Year's DUI Checkpoints
Los Angeles, CA. Dec. 27 — The upcoming New Year’s crackdown on drunken driving will include a new test for many people who are pulled over — an oral swab that checks for marijuana, cocaine and other drugs.
The voluntary swabbing has been used just 50 times this year. But Los Angeles City Atty. Mike Feuer is pushing to use it at more checkpoints and jails as officials try to limit the number of drivers impaired by substances other than alcohol.
“Traditionally, our office has focused on drunken driving cases,” Feuer said at a news conference Friday. “We’re expanding drug collection and aggressively enforcing all impaired-driving laws.”
Individuals arrested on suspicion of driving under the influence of alcohol or drugs must submit to a blood test. But prosecutors said the eight-minute, portable oral fluids test could eventually become a more effective use of resources in drugged-driving cases.
The test screens for cocaine, benzodiazepine (Xanax), methamphetamine, amphetamines, narcotic analgesics, methadone and THC representative of marijuana usage within the past few hours. City prosecutors have yet to use results from the test as evidence in a case.
The city attorney's office filed 598 DUI cases in the last year that involved drugs, compared with 577 drunken driving cases during last year’s winter holiday period alone.
This year, about 1,520 people across Los Angeles County were arrested on suspicion of driving under the influence of drugs or alcohol during the two weeks leading up to Christmas, local law enforcement agencies announced earlier this week…
For information on Draeger's DrugTest 5000 System, the SSK 5000 swab collection unit or their DrugCheck test kit, see the Draeger website.
(Thanks to Joe.)
I've posted in the past about the unconstitutionality of DUI roadblocks (or, to use law enforcement's less offensive term, "sobriety checkpoints"). See, for example, Are DUI Roadblocks Constitutional?.
In upholding these checkpoints a few years ago, Chief Justice of the U.S. Supreme Court William Rehnquist admitted that the stops and detentions are inherently a violation of a citizen's Fourth Amendment rights — but felt that these "minor intrusions" were outweighed by larger governmental interests. However, he made clear that this exception to the Constitution was limited to drunk driving (and immigration) investigations: checkpoints could not be used for other purposes.
I've commented that this "exception" would, like most limitations on freedoms, inevitably be expanded into other areas — eventually eating up the constitutional right altogether. Soon after the decision was rendered, for example, it was used by police agencies to search cars for drugs. See DUI Roadblocks: The Slippery Slope and Law Proposed to Regulate Police Abuse of DUI Roadblocks.
The most recent example of this inevitable whittling away of our constitutional right:
Pennsylvania Town Latest to Force Drivers Over and Ask for Cheek Swabs for Federal Study
Reading, PA. Dec. 18 — Drivers in a southeastern Pennsylvania town were forced off a local street and into a parking lot, so a federal contractor – aided by local police –could quiz them about their road habits and ask for a cheek swab, in a replay of an incident last month in Texas.
The checkpoint, in downtown Reading, was one of several conducted by the Pacific Institute for Research and Evaluation, which was hired by the National Highway Traffic Safety Administration and the White House Office of National Drug Control Policy. Although the questioning and cheek swab were voluntary, local residents said they were directed by police to pull over, and that the questioning was persistent, according to the Reading Eagle.
"I feel this incident is a gross abuse of power on many levels," Reading resident Ricardo Nieves told City Council Monday, three days after being stopped.
Last month, the police chief in Fort Worth, Texas, apologized after allowing his officers to take part in a similar federal survey in which random drivers were pulled over and asked to submit breath, saliva and even blood samples. The drivers were also asked to pull into a parking lot, where they could give a cheek swab and volunteer for a blood or breath test, according to the Fort Worth Star-Telegram. Those who agreed were paid $10 to $50. Those who declined were briefly interviewed and allowed to leave.
"We realize this survey caused many of our citizens frustration and we apologize for our participation," Fort Worth Police Chief Jeffrey Halstead said.
Reading Police Chief William Heim told the Reading Eagle the federal agencies are trying to see what can be done about crashes and injuries, and the swabs were not to get DNA samples but to test for the presence of prescription drugs. He said police were there for site security only and did not pull drivers over or ask questions.
"In the grand scheme of things, I think it's a pretty innocuous and minor issue," Heim said…
"A car driver or passenger cannot be required or pressured into providing a DNA sample and, in fact, can't be stopped at all except on suspicion of a crime or for a properly conducted sobriety checkpoint," Mary Catherine Roper, senior staff attorney for the ACLU of Pennsylvania, told the Reading Eagle…
Police Chief Halstead pretty much summed up the attitude of big government: These illegal stops and detentions are "a pretty innocuous and minor issue".
So you got stopped last night and arrested for drunk driving. And right after the breathalyzer showed a blood-alcohol reading of .09%, the officer confiscated your driver’s license and gave you an official notice of immediate suspension.
"What happened?", you ask. Can they do that? I thought I was presumed to be innocent, and the state had to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about "due process": Can they suspend my license for DUI before giving me a chance to defend myself?
The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) DUI who (1) has a .08% breath reading or higher, or (2) takes a blood or urine test, or (3) refuses to take any test. This means immediately — on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you.
Viewed another way, the officer in a DUI case is cop, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it!
So, again: How can they do that in America?
Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called "APS" laws (the phrase stands for "administrative per se", referring to the "per se" crime of .08%, as opposed to the crime of driving under the influence of alcohol, which is for the courts). They justified this by saying that a license was a "privilege", not a "right" — and since the license holder had no rights, the state could do what it wanted.
Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And "due process" simply means fairness — a fair procedure by which he can contest the confiscation of his property.
The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.)
MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced states into adopting APS suspensions — or else no funds. Do these APS hearings in DUI cases provide due process? In other words, how fair are they?
Let’s take California’s APS hearings. They are conducted by a "hearing officer". Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate.
So who is the prosecutor? He’s, well…the same guy.
That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can introduce his evidence against you and then make objections to your evidence — and sustain his own objections! And eventually decide whether you win or he does!
What is the DMV’s evidence? In California, it’s a brief printed form signed by the arresting officer — i.e., the entire case is hearsay. So doesn’t the Constitution give the accused a right of confrontation — the right to cross-examine his accuser? Well, if you want to cross-examine him, you have to subpoena him yourself — often a difficult procedure. Oh, yes…and you have to pay his salary for his time (usually overtime).
Not too surprisingly, the DMV wins about 95% of these DUI hearings.
That’s called "due process" in a drunk driving case.
I periodically get calls from reporters concerning legal issues in DUI cases. Often they simply involve some celebrity who was arrested for drunk driving and don't really involve any interesting issues. A few days ago, however, a reporter called with an interesting situation in Connecticut — the arrest of two teenagers for not stopping their intoxicated friend from driving — a friend who thereafter drove and crashed in to a tree and died.
The reporter wanted to know: Can the two friends be charged, prosecuted and convicted for not stopping her?
Teens Arrested for Letting Friend Drive Drunk in Fatal Car Crash
Glastonbery, CT. Dec. 6 – Could you be held accountable for allowing someone else to drive drunk? Two 17-year-old boys arrested in Glastonbury, CT on Thursday are finding out the hard way that you can. They were charged with misdemeanors, as police say they knew their friend Jane Modlesky, also 17, was too drunk to drive when she got behind the wheel of an SUV in July before crashing into a tree and dying.
The young men, one of whom was driving and the other of whom was a passenger before getting out of the car and watching Modlesky drive off into the early morning, were charged separately. One was charged with reckless endangerment in the second degree, violation of passenger restrictions and operating a motor vehicle between 11 p.m. and 5 a.m., while the other was charged with violation of passenger restrictions and operating a motor vehicle between 11 p.m. and 5 a.m. Both are due in court later this month.
“This is a highly unusual situation,” California attorney Lawrence Taylor, author of the law book “Drunk Driving Defense” and a former law professor, tells Yahoo Shine. “It’s basically saying that they had a positive duty to stop her. But you cannot be prosecuted because you didn’t stop someone from engaging in criminal conduct: If someone is holding a gun and is about to shoot it, and you don’t pull it out of their hand, you cannot be held accountable. So I think the police are kind of overreaching here.”
Taylor further explains that DUI is considered a "general intent crime," rather than a "specific intent crime" such as stealing or murder. “If you have a general intent crime, it’s pretty hard to be an accomplice,” he notes. “But having said that, there are states who have said yes, you can be an accomplice.”
In Washington in 2002, for example, a 29-year-old woman was charged with being an accomplice to drunken and reckless driving after she was accused of convincing someone to get behind the wheel; the subsequent accident killed six people, while she was the only survivor. She was later acquitted by the state Supreme Court. While that was a rare case, a more frequent situation is that of bartenders being held liable, under state "dram shop" laws, for continuing to serve drunk patrons who then get behind the wheel of a vehicle…
For a further discussion of this issue, see my earlier blog posts Can You Be an Accomplice to DUI? and Is it a Crime to Turn Over the Keys to a Drunk Driver? .
In my last post (California Supreme Court: Defendants Can't Challenge Reliability of Breathalyzer), I reported on a recent appellate decision which reflects the disturbing trend of courts and legislatures to prohibit evidence of scientific truths when they interfere with the conviction of citizens charged with drunk driving. Since then, there have been a few encouragingly critical comments in the media. The following, from The Newspaper.com, is an excellent example:
California Supreme Court Outlaws Science in Courtroom
Scientific evidence challenging the accuracy of breathalyzers is not admissible, California Supreme Court rules
Scientific evidence cannot be brought into evidence to challenge a borderline conviction for driving under the influence of alcohol (DUI) in California. The state Supreme Court last week rejected Terry Vangelder's attempt to clear his name after he was arrested for drunk driving though he showed few signs of impairment in field sobriety tests.
California Highway Patrol Sergeant Richard W. Berg noticed Vangelder's pickup truck driving at an alleged 125 MPH on Highway 163 in San Diego County on December 22, 2007. As soon as Sergeant Berg flipped on his overhead lights, Vangelder pulled over. Vangelder admitted to having a few glasses of wine with dinner, so he took and passed the field sobriety tests. Vangelder agreed to take a handheld Intoximeter Alco-Sensor IV preliminary alcohol screener test, which displayed a 0.086 blood alcohol content (BAC) reading. After this, he was arrested and taken to the county jail where an Intoximeter EC/IR breathalyzer produced an 0.08 BAC reading, right at the legal limit. He then took a blood test that reported a 0.087 BAC.
"I said I wanted to submit to a blood test," Vangelder testified. "I didn't think it was accurate. And the reason I say that is because I knew how much I had to drink."
At trial, Vangelder called Dr. Michael P. Hlastala, a professor of medicine at the University of Washington, to testify. Hlastala is the author of a textbook and 170 peer-reviewed articles on the physiology of alcohol. He testified that the breath machines do not produce a scientifically reliable result. When he gave a very detailed explanation of how the machines fail to measure the alcohol content of deep lung air, the prosecutor objected and the jury was sent out of the courtroom.
"They are (inaccurate)," Dr. Hlastala testified before the judge. "And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what's in the blood. And in recent years, we've learned that, in fact, that's not the case."
The professor explained that the machine reading can change based on the speed and depth of breathing, body and breath temperature, and the ratio of red blood cells to total blood volume. These factors could lead to the reading either overstating or understating the true alcohol content of the blood.
"The question of whether the breath [sample and result] accurately reflects anything else is irrelevant," the prosecutor countered.
The prosecution then moved to strike all of the expert witness testimony that would suggest there was something wrong with the way California drafted its laws. The trial judge ruled that general scientific arguments could not be made and that the defense could only present evidence that a particular machine had malfunctioned. Under a California law adopted in 1990, a motorist is guilty of DUI if he blows a 0.08 on a breath testing machine, regardless of whether he is physically impaired or not.
"As noted earlier, we explained in Bransford, that the 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual," Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. "Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute."
The high court explained that city, state and federal agencies around the country use and have tested the machines, and they work. The court argued the legislature took into account the way breath works when it passed the law to deny scientific challenges to the machines.
"We conclude that when the legislature employed the word 'breath' in section 23152(b), it had in mind the air that is exhaled into a properly working and calibrated breath-testing machine," Justice Cantil-Sakauye wrote. "Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature's reasonable determinations made in the course of its efforts to protect the safety and welfare of the public."…
So if the politicians pass a law saying that breathalyzers "work", then you can't defend yourself in trial with scientific evidence that they don't. (See, by the way, How Breathalyzers Work – and Why They Don't.)
Facts can be an inconvenient nuisance when they get in the way of MADD's "War on Drunk Driving".