Author Archives: Lawrence Taylor

So Much for the Presumption of Innocence

We pride ourselves in this country on our Constitution and the protections it gives us from the abuses of Big Government.  Perhaps most prominent of these rights is the "presumption of innocence", and the associated right not to have our freedoms or property taken without due process of law.

Except in drunk driving cases…

As I’ve written ad nauseum in the past, there is clearly a DUI Exception to the Constitution in our criminal justice system — and has been for many years.  See, for example, The Disappearing Right to Jury Trials…in DUI Cases, Another DUI Exception to the Constitution and The DUI Exception Continues

If you need any examples of this, just consider the following news article published online this morning….


Federal Appeals Court Upholds Ferrari Confiscation

Suffolk County, NY.  Jan. 13 – The Second Circuit US Court of Appeals upheld the government’s confiscation of James B. Ferrari’s Ferrari in a ruling last week. Officials in Suffolk County, New York had grabbed the 2003 Ferrari Modena coupe, valued at $95,000, after Ferrari was stopped and accused of driving under the influence of alcohol (DUI) on May 26, 2009.

A police officer saw the Ferrari allegedly reaching speeds over 100 MPH on South Country Road in Bellport. Ferrari was arrested and his Ferrari confiscated under the state’s drunk driving statute. Ferrari’s attorney argued the Due Process clause of the Constitution required the exotic automobile be returned after his client posted a bond — at least while the charges were being litigated in court. At that point, Ferrari had not be found guilty of any crime.  Ferrari’s attorney insisted that it was the county’s burden to prove the seizure was the only possible remedy to the situation, and a judge and jury both agreed. They ordered the county to pay $95,000 to Ferrari to compensate for the loss of his automobile.

A three-judge appellate panel overturned that judgment in last week’s decision, pointing to Ferrari’s long and sordid history of serious driving offenses, including past DUIs…

"Indeed, if the ultimate forfeiture of a car may validly serve the purpose of preventing this forfeited item of property from being further used as an instrumentality of crime, it is not evident why retention pendente lite [i.e. while litigation is pending] cannot serve, in at least some circumstances, a similar purpose," Judge Debra Ann Livingston wrote for the Second Circuit…


So before the defendant was ever convicted of any crime, his car (not incidentally worth a lot of money to local government authorities) was confiscated by the government.  Maybe I’m missing something, but isn’t there a presumption of guilt being applied here?  And isn’t the appellate judge basically saying, "Yes, you are presumed not to have been driving drunk — and we’re going to confiscate your car so that you don’t do it again"?

 

(Thanks to Joe.)

Court: A Wheelchair Isn’t a Vehicle….Duh!

The surreal "War on Drunk Driving" never ceases to amaze….

In their frantic desire to win votes, satisfy MADD, meet arrest quotas and make money, politicians, cops, prosecutors and judges fall over themselves trying to look tough on DUI.  One ridiculous example of this is expanding the entire concept of "driving a motor vehicle under the influence" to include operating anything that moves on a street, sidewalk or parking lot.  A few of my past posts reflect this:  DUI on a ScooterDUI in a Wheelchair?,  Drunk Driving on a Lawn Mower, DUI – While Walking a Bike, DUI…in a Lounge Chair and Drunk Driving…on a Horse.

Every once in a while, however, some court comes along and courageously announces that "The emperor has no clothes"….


Drunken Driver of a Wheelchair Was a Pedestrian, Appellate Court Rules

Lincoln County, OR.  Dec. 30, 2016 – A man convicted of drunkenly driving his motorized wheelchair should be considered a pedestrian rather than a driver, the Oregon Court of Appeals ruled Thursday, reversing and acquitting him.

James Richard Greene was charged with DUI in Lincoln County, for a 2012 incident in which he hit the side of a moving truck while he crossed the street in a crosswalk…

At his two-day jury trial, Greene’s attorney moved for acquittal, calling Greene a pedestrian and not a driver.  Judge Paulette Sanders denied the motion. Greene appealed and on Thursday the three-judge panel reversed, concluding that “the trial court erred in denying defendant’s motion for a judgment of acquittal.”

“We are persuaded that the dichotomy that pervades the vehicle code between pedestrians and operators of vehicles decisively evinces a legislative intention not to subject people in motorized wheelchairs to the DUII statutes when they are traveling as pedestrians in crosswalks,” Presiding Judge Rex Armstrong wrote for the unanimous panel…

Nonetheless, the appeals court found the state’s interpretation of the DUI statute “plausible,” because of the broad way “vehicle” can be interpreted. But it concluded that the Legislature did not intend to treat a person as both a pedestrian and a driver, and Greene was not subject to the vehicle code.  


One wonders if sanity will prevail…or if the prosecutor will appeal this ruling — and win before the Oregon Supreme Court based on "the broad way ‘vehicle’ can be interpreted" to include wheelchairs.  Really?!
 

“Driving Under the Influence of Coffee” Charges Dismissed

In my previous post Driving Under the Influence of…Caffeine?, I reported on pending criminal charges against a citizen for driving under the influence of …yes, coffee.  This was after an ABC agent (California Alcohol Beverage Control) was apparently upset when she claims to have been cut off by the "erratic" driver and she stopped and arrested him.  

Subsequent blood tests showed no alcohol or drugs of any kind in his system.  Zero.  Despite this, the Solano County D.A. filed DUI charges against the driver.  He has, of course, consistently refused to plead guilty and has demanded a jury trial.

Yesterday, after almost a year-and-a-half, the D.A. finally dismissed the DUI charges….  


DA Drops DUI Charge for Man Who Tested Positive for Caffeine

Solano County, CA.  Dec. 30 — The Solano County District Attorney’s Office decided Wednesday to drop a DUI charge against a Fairfield man who only tested positive for caffeine.

The charges were dropped more than 16 months after Joseph Schwab, 36, was pulled over on Interstate 680 near Gold Hill Road as he drove to his Fairfield home.

"After further consideration, without a confirmatory test of the specific drug in the defendant’s system that impaired his ability to drive, we do not believe we can prove the charge beyond a reasonable doubt," District Attorney Krishna Abrams said Wednesday in a news release…
 

I wonder why, after almost a year-and-a-half, the D.A. suddenly decided to dismiss the charges?  Could it possibly have been the embarrassing media attention in the last few days?
 

 

Driving Under the Influence of….Caffeine?

Just when you thought the "War on Drunk Driving" could not get any crazier…..


California Man Fights DUI Charge for Driving Under Influence of Caffeine

San Francisco, CA.  Dec. 24 - Caffeine may be the “nootropic” brain drug of choice in Silicon Valley, but an hour’s drive north in Solano County, California, the stimulant could get you charged with driving under the influence.

That is according to defense attorney Stacey Barrett, speaking on behalf of her client, Joseph Schwab.  After being pulled over on 5 August 2015, Schwab was charged by the Solano County district attorney with misdemeanor driving under the influence of a drug.

Almost 18 months later, Schwab is preparing to go to trial. The only evidence the DA has provided of his intoxication is a blood test showing the presence of caffeine.

Schwab was driving home from work when he was pulled over by an agent from the California department of alcoholic beverage control, who was driving an unmarked vehicle. The agent said Schwab had cut her off and was driving erratically.

The 36-year-old union glazier was given a breathalyzer test which showed a 0.00% blood alcohol level, his attorney said. He was booked into county jail and had his blood drawn, but the resulting toxicology report came back negative for benzodiazepines, cocaine, opiates, THC, carisoprodol (a muscle relaxant), methamphetamine/MDMA, oxycodone, and zolpidem…

“It’s really stupid,” said Jeffrey Zehnder, a forensic toxicologist who frequently testifies in court cases. Over 41 years, Zehnder said, he had never seen a prosecution for driving under the influence of caffeine…

California vehicle code defines a “drug” as any substance besides alcohol that could affect a person in a manner that would “impair, to an appreciable degree” his ability to drive normally.

Making that case with caffeine would be difficult, Zehnder said, because the prosecutor would have to show that impaired driving was specifically caused by the caffeine and not any other circumstances.

“There are no studies that demonstrate that driving is impaired by caffeine, and they don’t do the studies, because no one cares about caffeine,” he said.


So how could this case possibly have been filed by the prosecutor — not to mention an arrest to begin with?  And how could it possibly be going to trial?  Does the prosecution seriously believe that coffee is intoxicating?  Is law enforcement running out of drunk drivers to arrest?  Does Solano County government really need the money from fines that badly?

Or is there a simpler explanation?  Let’s take a second look at the story…..


Schwab was driving home from work when he was pulled over by an agent from the California department of alcoholic beverage control, who was driving an unmarked vehicle. The agent said Schwab had cut her off and was driving erratically.

 
Hmmm….Maybe the arresting "alcohol beverage control" agent was simply suffering from a case of "road rage" — and abused her legal authority?  But then why did the prosecutor file charges?  And why hasn’t the judge thrown the case out?  Why do we have 18 months of embarrassed silence?….
 

“Pot Breathalyzers” on the Horizon…

 As I’ve mentioned in past posts, there are a number of problems with trying to determine whether a driver is under the influence of marijuana.  See, for example, Marijuana-Impaired Driving: A Prosecutor’s Nightmare?, New Study: Minimal Driving Impairment From MarijuanaCalifornia Proposes New Law to Allow Roadside Marijuana Tests, Is a Marijuana Breathalyzer in the Offing?    Primary among these problems are:


1.  Marijuana cannot be detected or measured on a breath machine.  It can be measured with blood tests, but there is almost always a delay — often hours — in obtaining a blood sample.  Result:  due to continuing metabolism of marijuana in the body, the level at the time of testing may be significantly higher or lower than at the time of driving

2.  Unlike alcohol which dissipates after several hours, THC (the active ingredient in marijuana) can stay in a person’s system for days or even weeks after smoking or eating.  Even though they are no longer affecting the driver, they will be still detected and reported as marijuana in the blood.

3.  There are no recognized scientific studies establishing at what level of THC in the blood a person’s driving ability is impaired.


A solution to one of these problems would be the development of a breath machine which could accurately measure marijuana on the breath — particularly if this could be done quickly at the scene of the arrest.  But no such device exists….yet:


Marijuana Breathalyzers to Test California Pot Users for Pot Use

Los Angeles, CA.  Sept. 14 – An Oakland-based company has developed a marijuana breathalyzer for distribution across police stations in the U.S. to begin a nationwide test to see if they can monitor people operating motor vehicles while under the influence of pot, and drivers in California were among the first to be tested…

The marijuana breathalyzer – which had some help in development by the University of California’s chemistry department – is able to detect THC on people’s breath after they’ve consumed edible pot products as well as alcohol.

Hound Labs plans to roll their product out nationwide upon further testing to validate the technology’s results.

Until it’s perfected, police will have to continue relying on testing saliva, urine, and blood to measure marijuana in the system, which can show the presence of drugs days after the user is actually under the influence.

Some police have already shown their support for the breathalyzer, including Lompoc Police Chief Patrick Walsh, who says he plans on issuing the device to at least six of his departments over the next six months…


Ok, so maybe they will be able to detect and even measure the amount of THC in the blood from testing the breath.  But how does this solve the problem of inactive THC still remaining in the blood from smoking days or weeks earlier?  And what good is it to know the amount of THC in the breath if there is still no scientific evidence of the amount necessary to impair driving ability?