Author Archives: Lawrence Taylor

Prosecutors Fight for an End to Jury Trials

There are few things as frustrating to many judges as having to let a time-consuming jury take away their power to decide the case. And nothing so frustrating to any prosecutor than 12 citizens standing between him and a conviction. As I mentioned a few days ago in "Arizona Denies Right to Jury Trial in DUI Cases", the Arizona Supreme Court recently ruled that defendants charged with certain misdemeanors — primarily DUI — are not constitutionally entitled to a jury trial.

The problem is that there is a statute in Arizona which specifically entitles the defendant to a jury trial in DUI cases. But judges and prosecutors have now joined forces in an attempt to deny the citizens of Arizona their legal right to a jury trial if charged with drunk driving. As reported in The Arizona Republic (February 7, 2005):

Prosecutors and municipal court judges in Arizona are now pushing to eliminate the right to a jury trial for misdemeanor drunk-driving charges in the wake of an Arizona Supreme Court decision….

The opinion was published Jan. 14 , and since then, prosecutors in Gilbert, Mesa, and Bullhead City have already asked that DUI jury trials be canceled, and municipal court judges and magistrates in Phoenix and Tucson have already canceled some, pending hearings or a clarification from a higher court. The prosecutors are certain they'll prevail and defense attorneys fear they will. The main obstacle is a state statute that explicitly grants jury trials in DUI cases. At question now is whether that statute is rendered moot….

In response to [an earlier court decision], the Arizona legislature amended the DUI laws, saying in statute 28-1381 (f) that "the defendant may request a trial by jury and that the request, if made, shall be granted."….

Jury trials are expensive and use up time and court resources. "Sometimes we prepare for a jury trial and at the last minute the defendant wants to plead before the court," said Mary Stringer, Magistrate in the Bullhead City Court. "So we have all the jurors on stand-by and the logistics of it are very often time consuming."

Prosecutors don't care for misdemeanor jury trials either, because they take more time to prepare than bench trials — and because they're more likely to end in acquittal.

Costly….Time-consuming….More likely to result in acquittal. Of course, we could just eliminate trials altogether, and have the person arrested immediately sentenced, resulting in even greater savings of money, time — and those irritating acquittals.

When the Shoe is on the Other Foot

In the past ten days I’ve commented on three recent incidents — involving a police officer, a prosecutor and a judge — reflecting the double standard within the criminal justice system when it comes to enforcing DUI penalties against one of their own. During that same period of time, a Justice of the Ohio Supreme Court was also arrested for drunk driving. What is of particular note about that case, other than involving the highest judicial officer in the state, was the attitude of that individual caught on videotape. The following excerpts are from the Toledo Blade:

COLUMBUS – Ohio Supreme Court Justice Alice Robie Resnick refused to take a field sobriety test and drove away from police Monday afternoon when confronted with reports she had been driving erratically on I-75 near Bowling Green….

The highway patrol reported receiving six cell phone calls from motorists alerting them to a vehicle weaving across lanes on I-75. A taped copy of one 911 call received at the patrol’s Waldridge post said the vehicle nearly sideswiped her…. A Bowling Green officer and then a highway patrolman approached the vehicle after finding it stopped at a BP gas station at the Bowling Green exit of I-75.

According to the patrol’s report, they took her driver’s license and registration, and she identified herself as a Supreme Court justice…. She denied having had any alcohol or taken any medication…. She refused to take a vision test and drove off despite the officers’ protests, according to police….

"I informed her that she was not free to go," Bowling Green Police Officer Mark Hanson wrote in his report of the incident. "She thanked us, rolled up her window, and drove off." According to the Ohio Highway Patrol, a patrol car and local police caught up to her back on I-75, pulling her over near Cygnet….

"You don’t have a good reason to stop me," she protested when an officer approached her state-owned 2001 Jeep Grand Cherokee and spoke to her over the barking of her small dog. On an arrest video released yesterday by the patrol, she could be heard from inside her vehicle saying, "It’s not right. I was not weaving anywhere. ‘ I really cannot tolerate this."

"They later conducted a series of tests, an eye test and a portable breath test, which is not an evidentiary test," said Lt. Rick Zwayer, a patrol spokesman. None of that occurred on camera. She registered a .216 on the portable breath test administered in a patrol car along I-75, twice the legal limit for driving under the influence of alcohol.

Later, at the Findlay Post of the Ohio Highway Patrol, Justice Resnick refused to take an official evidentiary Breathalyzer test. A refusal automatically results in a one-year suspension of a driver’s operating license…. On the high court, Justice Resnick has ruled in a number of cases involving drunken-driving issues.

In a later news article, after her arrest Justice Resnick was reported to have asked an officer to let her go. "I decide all these cases in your favor and, my golly, look what you’re doing to me," she said. Side note…..The Toledo Blade somehow obtained copies of the video tapes and immediately released them to the public on their website. Why did the police release the tapes — and so quickly — to the media? And, as TalkLeft asks, what are the chances of this individual getting a fair trial now? Side note #2….For those with full faith in the testimony of officers in DUI cases, it is interesting to note that in one of the videos, an officer comments that he could smell no alcohol on Justice Resnick’s breath, while in another a different officer indicates he does smell alcohol.

DUI Double Standard Continues

I posted stories a few days ago about favorable treatment recently given to a prosecutor ("The Untouchables") and a DUI police officer ("The Untouchables – Sequel") arrested in separate incidents for drunk driving. To complete the law enforcement triangle, the Denver Post reports on the latest application of the double standard in DUI cases, this time for a judicial appointee who just got the same treatment (presumably not yet available to the general public):

JUDICIAL APPOINTEE GUILTY OF SPEEDING:

DUI CHARGES TOSSED

A man appointed to be a judge in Arapahoe County pleaded guilty in Denver on Thursday to speeding, while prosecutors dropped charges of driving under the influence of alcohol and careless driving.

If Vincent R. White, 41, had been convicted of the DUI charge, it would have been his second drinking-and-driving-related conviction in four years. White pleaded guilty in 2001 to driving while ability impaired in Arapahoe County.

In August, Gov. Bill Owens appointed White to fill a judicial vacancy on the Arapahoe County District Court. Dan Hopkins, Owens' spokesman, said White spoke in his job interview about his remorse over the conviction and his efforts to prevent others from drinking and driving.

In January, a Denver police officer stopped White on Park Avenue West for speeding, smelled alcohol and asked if White had been drinking. White, who felt the stop was the result of racial profiling, told the officer he had about a glass of wine and wouldn't take a sobriety test, said White's attorney, Craig Truman.

White is expected to be sworn in as a judge later this month. Hopkins said Owens believes the recent case "raises some concerns," but he said at this point the appointment cannot be rescinded.

New Weapon Unveiled in War Against Drunk Driving

I've written a number of times about the inaccuracy and unreliability of breathalyzers (see, for example, "Breathalyzers — and Why They Don't Work", "Why Breathalyzers Don't Measure Alcohol", "Breathalyzers: Why Aren't They Warranted to Measure Alcohol?"). For those of you who still believe that these machines are accurate, consider the following news article:

MINNEAPOLIS (January 31, 2005) – Before he went to law school, Brian Eddy worked at a firm that often handled drunken-driving cases. He noticed that many of the clients snagged for driving under the influence made the same doleful observation: "I had no idea I was that drunk."It occurred to Eddy that there must be a way to quickly screen one's blood-alcohol level after a few drinks. He bounced the idea off a childhood friend, and the two ponied up $100 from their savings accounts to start a business. Before he knew it, Eddy was not only a budding lawyer but a budding entrepreneur.Fast-forward six years: Eddy is now the chief executive of Q3 Innovations, an Eagan, Minn., company that has successfully marketed the Alcohawk ABI digital breath alcohol screener to retailers Sharper Image and Target. He has even bigger retailers on his radar, including Best Buy, Circuit City and Radio Shack….

Eddy points out that….the U.S. Department of Transportation has cleared the device for use by law enforcement professionals, a market Q3 Innovations has yet to aggressively tap. [Emphasis added]"The reason people are skeptical is because there is a lot of junk on the market," Eddy said of the competition. "It's a perception that we have to overcome."

How accurate do you think this "budding" lawyer-entrepreneur's product is? Would you want to face arrest and prosecution for DUI because of its reading? And just how demanding could the Department of Transportation's standards be?

Note: Most states rely upon the U.S. Department of Transportation's list of approved breath testing instruments as the standard for admissibility as evidence in court. Young Brian Eddy's pocket-sized gizmo, available at any Target store, is legally good enough to sustain a criminal conviction for drunk driving.

As I commented in an earlier post, it's "close enough for government work".


(Thanks to Kathleen N. Carey of Phoenix, Arizona)

Would You Want a Cop Taking Blood from You?

In an effort to reduce costs in DUI cases, some law enforcement agencies — often with federal support — are circumventing the usual procedures of having a nurse or medical technician withdraw blood and simply having the arresting officer do it himself. From a recent news article:

OGDEN (January 30, 2005) – Some Utah Highway Patrol troopers are becoming medically certified to draw blood from motorists they suspect of driving while intoxicated.Without the medical certification, troopers now must either take a suspect to a hospital or call in a certified technician to stick a needle in the suspect’s arm and take a sample. Every time a trooper does that, it costs the Highway Patrol $50 or $60. Perry said that costs about $25,000 per year.

A Federal Highway Safety Administration grant provided the funds to hire the Utah School of Phlebotomy to teach troopers how to draw blood. Beth Anderson, president of the school, said the compressed four-session course certifies the troopers as phlebotomists, legally and medically able to safely take a blood sample. The course teaches troopers how to get used to the idea of sticking someone with a needle, which isn’t always that easy, she said. ‘’The thing is, you’ve got to get over that mental state of going in through some guy’s skin,'’ she said. ‘’Then you hold [the vein] so it doesn’t roll, and you’re in there.'’

Instruction also includes patient care, confidentiality, and what to watch for if the subject is about to collapse at the idea of being stuck with a needle. The troopers actually poke each other with the needles for practice in the classes – eight sticks per trooper at each of the four sessions. By the end, the dozen troopers in an early first class sported arms flecked with bruises and needle marks.

Confidentiality? Patient care? Honestly, now, would you want a police officer to use a hypodermic needle on you? Ignoring the pain, injury and infection aspects for the moment, bear in mind that: the blood must be taken from a vein, not an artery (which has a higher blood-alcohol concentration); the skin must be swabbed with an approved antiseptic (not isopropyl alcohol, which can raise the blood-alcohol concentration); the correct amount must be taken, with no contamination from the officer; it must be placed in a sterile and sealed vial; an approved preservative in the correct amount must be added and mixed in (to prevent fermentation, which increases BAC); an anti-coagulant (to prevent clotting, which increases BAC) must also be added, again in the correct amounts; etc….. But the bottom line is that it costs fifty bucks to do it with a truly qualified person. And, anyway, its “close enough for government work”.