Most of us are vaguely aware that when we are arrested and taken into custody we must be advised of certain constitutional rights, including the right to counsel. This is based upon the Fifth and Sixth Amendments to the United States Constitution; the Supreme Court has specifically applied this 5th Amendment right to misdemeanor traffic offenses in Berkemer v. McCarty.

In a DUI case, the citizen is arrested, handcuffed and thrown into the cruiser to be taken to the police station where he will be asked to submit to breath or blood testing. Some states view this as a “critical stage” where the individual should have the right to call an attorney for advice well before he decides which test to take, if any. Consider a February 16, 2005, news story from Montana:

HELENA — Police and prosecutors railed against a bill Wednesday that would allow someone arrested for drunken driving to call an attorney before taking a blood-alcohol test, calling it another loophole for offenders that would hinder investigations.

Opponents called the measure by Rep. Rick Maedje, R-Fortine, vague and inappropriate given the Legislature’s work to toughen drunken driving laws this session…. Maedje said his bill wasn’t so much about drunken driving, but an attempt at protecting constitutional rights.”Constitutional protection is not a loophole,” he told the House Judiciary Committee. “Miranda (rights) should start immediately after someone is asked to incriminate themselves.”

The bill would allow those arrested for DUI to contact an attorney “as soon as possible under the circumstances” and prohibits law enforcement from seizing their driver’s license until that time. Their license could be taken if they refuse to take the test after that time, or if they don’t contact an attorney. No one spoke in support of the bill….

A bill to recognize our right to speak with an attorney. And no one spoke in support of it.

OK, this one isn’t about DUI specifically, but…. As we all know, the genius of our political system is that it is based upon the separation of powers, a structure designed to provide checks and balances by each of the three arms of government against the other two. In its collective wisdom, however, the Delaware House of Representatives is considering a Bill to change all of that nonsense. In response to a Delaware Supreme Court decision striking down a statute, the Bill (which has already been passed out of a number of committees) provides:

(I)n recognition that the Delaware Constitution vests authority and sole responsibility for lawmaking in the General Assembly, the General Assembly asserts its right and prerogative to be the ultimate arbiter of the intent, meaning, and construction of its laws and to vigorously defend them; therefore, the members of the General Assembly declare that the decision of the Delaware Supreme Court in the case of Evans v. State, 2004 WL 2743546 (Del. Supr.), is null and void.

Having declared the Supreme Court’s decision "null and void", the legislators then continued their rearrangement of government by telling the courts how to decide cases in the future:

Construction and Interpretation of Laws: Delaware judicial officers may not create or amend statutes, nor second-guess the soundness of public policy or wisdom of the General Assembly in passing statutes, nor may they interpret or construe statutes and other law when the text is clear and unambiguous.

Take that, judicial branch! (Thanks to Rod Kennedy of Albuquerque.)

The promotions and accolades heaped on officers by groups like MADD for maintaining high DUI "body counts" has created a growing phenomenon: the over-zealous "SuperCop". As an example, consider the following news story about one of these SuperCops — and one of his victims who is currently suing him in federal court:

To the Palm Beach County chapters of the Traffic Safety Council and Mothers Against Drunk Driving, North Palm Beach police officer Salvatore Mattino is a crackerjack cop. So much so that they've given him awards for the prolific number of drunken driving arrests he has made."I'm always arresting people, you know, I just can't be… you know, chilled," Mattino told a superior officer 11 months ago, according to an internal affairs report.

 That attitude troubles some of Mattino's fellow officers, not to mention the motorists ' a good number of them never prosecuted ' whom he has busted. Indeed, during one of Mattino's DUI arrests 13 months ago, a fellow North Palm Beach police officer had a heated argument with him over what he said was a bogus DUI bust, and threatened to arrest Mattino if he went through with it. Mattino made the arrest anyway. A few days later, according to the report, a sergeant in the department asked Mattino about the incident, explaining, "I'm tired of officers complaining about you and your DUI arrests."

Now Mattino's ardent pursuit of drunken drivers has put him and the village of North Palm Beach on the receiving end of a federal lawsuit filed in December, claiming that the village and the officer have systematically made bad DUI arrests and maliciously prosecuted them.

The citizen bringing the federal action, Elliot Schecter, was pulled over by Mattino for speeding:

Mattino asked Schecter, 35, to submit to a series of roadside sobriety tests, which Mattino said he performed badly. Schecter was then arrested and taken to the Palm Beach County Jail. Once there, he agreed to a breath test. The result: 0.00 ' no sign of alcohol. That might have ended Schecter's long night, except Mattino then asked him to give a urine sample. He eventually tested negative for drugs. The state attorney's office later dropped the case…..

Schecter wasn't the only legally sober motorist to be given a roadside sobriety test by Mattino, then taken to jail, only to pass the breath and urine tests. (Attorney Val) Rodriguez says he's found at least 10 others out of 71 DUI arrests by Mattino between November 2001 and May 2004, including five drivers he jailed who blew a 0.00 on the breath test….

"Sal Mattino's car stops were very questionable," said Ira Peskowitz, a former colleague who now works as a Palm Beach County sheriff's deputy. "He's a good person. But just because you're a good person doesn't make you a good tactical police officer."

In August, Peskowitz sued North Palm Beach, the village's former police chief and a captain in the department. In his suit, Peskowitz complained about the propriety of some of Mattino's arrests. He also alleged improper actions by other officers and contended the department retaliated by suspending him and in effect forcing him to resign last year. The case is pending.

Be assured, North Palm Beach is not the only place where "body counts", quotas and MADD awards encourage questionable or blatantly false DUI arrests. (Thanks to William C. Head of Atlanta.)

From the Bangor (Maine) Daily News, the latest thinking in the continuing "War on Drunk Driving":

AUGUSTA: In hopes of reducing death and injury from drunken driving in Maine, legislators are considering confiscating the hunting and fishing licenses of those convicted of operating a motor vehicle under the influence of alcohol or drugs. The proposed bill, LD 82, would suspend hunting and fishing licenses concurrent with a driver’s license revocation as a result of OUI. Repeat offenders with three drunken driving convictions would face a lifetime ban on hunting and fishing in Maine.

Confiscation of dog tags, construction permits and marriage licenses is on the drawing board. (With thanks to attorney Wayne R. Foote of Bangor).

I’ve posted a number of comments recently about the favored treatment received by police, prosecutors and judges when arrested for DUI — usually, a quiet dismissal of charges. When publicity sometimes precludes this option, the individual may have to answer the charges. But go to jail? Never. Consider a recent story about a Tampa, Florida, prosecutor who was charged with DUI as a felony:

Pinellas DUI prosecutor pleads to own drunk driving charge

TAMPA, Fla. Associated Press – A Pinellas County prosecutor known for being tough on drunk drivers will serve probation and lecture school children on the dangers of drinking and driving to settle her own DUI case.

Lydia Dempsey Wardell was arrested in November after she drove the wrong way on a street and was involved in a minor accident. Her two young sons were in the car with her, and police measured her blood alcohol at nearly three times the legal limit for drunk driving.Wardell was sentenced Wednesday after a plea agreement which reduced the drunk driving and culpable negligence charges against her to misdemeanors.

Wardell will serve 18 months probation, and complete other tasks such as spending time on a sheriff’s road crew picking up trash and at least 10 hours of speaking to children. Officials said her punishment is similar to those imposed on other first-time DUI offenders….

"Similar to those imposed on other first-time DUI offenders"? Are they serious? Here we have a person arrested for drunk driving with two children in the car, after an accident, and with a blood-alcohol of about .23% (incidentally, a common indicator of an alcoholic). In most states, an accident will usually increase the jail sentence; a sky-high breath test nearly triple the legal limit definitely will; and exposing kids to all of this is called "child endangerment" and may result in felony charges, as apparently happened here — punishable by state prison. All-in-all, this person gets a very long stretch in jail.

Ms. Wardell, with her reputation for "being tough on drunk drivers", had the felony reduced to a misdemeanor and was only asked to pick up some trash and talk to kids for a few hours. That is known in the trade as a "Santa Claus deal". But then these are reserved for police, prosecutors and judges — those, that is, who are unlucky enough to be arrested by an honest cop in the first place.