Category Archives: Duiblog

“The Untouchables”

From the "Double Standards" department, this news item from the Chicago Daily Herald (January 19, 2005):

DuPage County State’s Attorney Joseph Birkett is tough on drunken drivers. On that, prosecutors, defense attorneys and advocates against drunk driving all agree. When Cook County gang crimes prosecutor Joseph E. Keating, 43, was arrested in July and charged with DUI after knocking over a light pole on an I-55 ramp, he managed to get the charge dropped at his first court appearance.

The reason, prosecutors said, was not that Keating was a prosecutor himself, but that the case was weak. That’s because Keating refused all sobriety tests, including a Breathalyzer, and police failed to activate the audio portion of the videotape of the arrest…. Keating won’t talk about the arrest.

Birkett says the case was not winnable without Breathalyzer results or conclusive evidence from the scene. Keating notified his bosses in Cook County of the arrest and was put on desk duty while his case was pending, according to Marci Jensen, a spokeswoman for Cook County State’s Attorney Richard Devine. He was reinstated to the courtroom when the DUI charge was dropped Aug. 13, she said.

Asked if the fact that a prosecutor refused drunken driving tests bothered the office, Jensen replied that Keating was entitled to the same options as any other driver…. Birkett acknowledged that dropped DUI charges, while rare in DuPage are not unheard of ‘ ‘probably between 6 and 10 percent,’ he said.

The DuPage County prosecutor’s office handles thousands of DUI cases a year. A Daily Herald review of 20 of them brought in DuPage County at the same time as the Keating case found that Keating’s DUI charge was the only one the office dropped.

Birkett has made a reputation for himself and earned the admiration of advocates against drunken driving for being tough with DUIs, sometimes even prosecuting cases with weak evidence, defense attorneys say. At least one veteran defense attorney, whose office handles about 50 DUIs a year, says he’s never seen the DuPage office drop a DUI case. Even if a case is weak, Des Plaines attorney Michael R. Epton said he’s seen DuPage prosecutors leave it to a judge to throw it out.

By office policy, front-line prosecutors cannot, of their own volition, drop or reduce a DUI charge, Birkett said. They must seek approval from a supervisor first. The same policy operates in Cook County, Jensen said. Birkett said the Keating case never reached his desk, but it did go up the chain of command through at least three supervisors. He said he supports their decision.

Indiana Chief Justice Warns Jury Trials Disappearing

On January 20, the same day I posted "Arizona Denies Right to Jury Trial in DUI Cases" and three months after posting "DUI and the Disappearing Right to Jury Trial", Indiana Supreme Court Chief Justice Shepard delivered the State of the Judiciary 2005 message In the opening paragraph of the section entitled "Rebuilding the American Jury", he warned:

Something else that’s needed attention for a long time is the way we manage that birthright of all Americans, trial by jury. Most schoolchildren know that when the nobles confronted King John on the field at Runnymeade in 1215 that one of the promises Magna Carta contained was the right to a trial by your peers, but these days the legal press is running stories about the disappearance of the American jury trial. We’ve too long taken it for granted…..

(Thanks to Scott Henson of Austin, Texas.)

Arizona Denies Right to Jury Trial in DUI Cases

Arizona has just joined a small but growing list of states that have taken away the right to jury trial in DUI cases. A few weeks ago I posted "DUI and the Disappearing Right to Jury Trial" on the disturbing trend in government of denying one of our most basic constitutional rights: the right to be tried by a jury of our peers. The federal government and a handful of states have eliminated jury trials for drunk driving cases or for misdemeanors altogether. Without admitting it, they are apparently doing this primarily to save money and to "expedite" the criminal justice system (read: eliminate impediments to conviction).

But , you ask, the Sixth Amendment to our Constitution clearly says, " In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…" How do you get around that? Addressing an appeal from a Nevada DUI case a few years ago, the U.S. Supreme Court decided in its wisdom that it didn't really mean we had a right to a jury trial for ALL crimes — only for really big ones. What's a really big one? Well, basically any offense for which you can go to jail for more than six months. In other words, if the law says that the maximum punishment is six months imprisonment or less, you can't have a jury trial: your guilt or innocence will be decided by an elected or politically-appointed judge.

But, you object, the language of the Sixth Amendment is clear: "In ALL criminal prosecutions…" Well, we are told, it doesn't really mean that. The state of Arizona is the most recent to address this issue….and their Supreme Court has just rendered a decision (Derendal v. Hon. Griffith, No. CV-04-0037-PR). Before the ruling was published, The Arizona Republic had reviewed the case:

When the Derendal case reached the Arizona Supreme Court, the justices asked for briefs describing why the state should or shouldn't adopt the federal guidelines set out in a 1989 U.S. Supreme Court case called Blanton vs. City of North Las Vegas, which was about the right to a jury trial for DUI. The Blanton decision set the definition of petty offenses as those whose punishment is six months or less of incarceration…. According to the Research and Statistic Administrative Office of the Courts, which crunches numbers on behalf of the Arizona Supreme Court, there were more than 65,600 trials for misdemeanor offenses at the state's Justice and Municipal courts in fiscal 2004, which ended June 30. Only 1,273 of those were jury trials and three-fourths of them were criminal traffic cases, which includes DUI, according to the brief Flint submitted to the high court in the Derendal case. He noted how much time and money could be saved by eliminating misdemeanor jury trials. He cited 1995 figures claiming that Phoenix Municipal Court had spent nearly $1.3 million on jury trials, mostly for DUIs…. [emphasis added]

Two days ago, the Arizona Supreme Court ruled unanimously that "if the legislature has defined an offense as a misdemeanor punishable by no more than six months incarceration, we presume that the offense is petty, and no jury right attaches." In a modified version of the U.S. Supreme Court decision, the only exception is "if a statutory offense has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood", then the right to jury trial would continue to be recognized. To no one's great surprise, the decision primarily eliminates the right to a jury trial in DUI cases, as the offense has no "common law antecedent" (there were no cars when Arizona became a state) and is punishable by "only" six months imprisonment. Saving the City of Phoenix alone nearly $1.3 million. (There have apparently been no studies yet on exactly how much could be saved by eliminating trials entirely.)

Supreme Court OKs Forced Blood — After 3 Breath Tests

On January 18, 2005, the U.S. Supreme Court declined to review a state supreme court case endorsing the nonconsensual extraction of a blood sample from a DUI suspect — after he had already consented to three earlier breath tests. On February 19, 2002, police in Wisconsin pulled over Jacob Faust as he left a bar. Faust admitted that he had five brandies and failed the field sobriety tests. He voluntarily submitted to a roadside breath test; the results indicated a blood-alcohol concentration of .13% — well above Wisconsin’s .08% legal limit. He was arrested and, at the police station, agreed to take another breath test. Two separate tests on the breathalyzer indicated BACs of .09%. The officer then asked Faust to submit to the withdrawal of a blood sample.

Having already taken three breath tests, Faust finally refused further testing. He was immediately served with a notice of license suspension for refusing and taken to a hospital where a blood sample was drawn. The result of the blood test was .10%, almost the same as at the station. At a suppression hearing, the officer admitted it was not departmental policy to demand further tests and he did not suspect the use of drugs: he simply wanted "additional evidence" because Faust was only .01% over the limit. The trial court granted the motion to suppress, and the Court of Appeals affiirmed:

"Once an individual arrested on probable cause for OWI has provided a satisfactory and useable chemical test, the exigent circumstances justifying a warrantless and nonconsensual blood draw no longer exists."

In a 4-3 decision, the Wisconsin Supreme Court reversed, holding that "(t)he nature of the evidence sought — that is, the rapid dissipation of alcohol from the bloodstream — not the existence of other evidence, determines the exigency." (Of course, by this reasoning the police can take as many chemical tests — 15 or 20 — as they want; there is almost no limit since alcohol will continue to dissipate for hours.) Amazingly, the Court further found that the police had a right to additional tests since they can’t predict whether a breath test will be found reliable in court. (In a footnote (fn28), the Wisconsin Supreme Court may have noted the real reason for this blatantly dishonest opinion: "There were 292 people killed and 6,570 injured as a result of alcohol-related motor vehicle crashes in Wisconsin during the year 2002…" In other words, the ends justify the means — the Constitution notwithstanding.) One of the three dissenting justices observed:

Without consent, without a warrant, and without exigent circumstances, the forced blood test in the present case violated the United States Constitution… The majority’s argument is essentially that because law enforcement officers do not know what will happen at trial (and no one does, of course), it was reasonable for them to take as many valid tests of the suspect’s blood alcohol as they thought necessary to sustain a conviction."

The U.S. Supreme Court denied a writ of certiorari (refused to hear the case). Wisconsin v. Faust, #04-471. Police are now apparently constitutionally free to give blood-alcohol tests as many times as they wish.

New DUI Law: Inaccurate Breath Tests are OK

Washington State recently passed a new law, essentially making all breath tests admissible as evidence — regardless of whether the particular breathalyzer was broken, defective, given incorrectly or otherwise inaccurate. Bear in mind that citizens arrested for DUI are usually charged with two separate criminal offenses: (1) driving under the influence and (2) driving with .08% or greater blood-alcohol concentration. The only evidence of the second charge will be the breath machine. And even in the first charge, the defendant is rebuttably presumed guilty if his or her breath test was .08% or higher. In other words, the entire case pretty much hinges on that machine.

Problem: law enforcement agencies in Washington couldn’t seem to get their acts together in calibrating, maintaining and properly administering the machines. And the legislature just got sick of seeing the courts toss out cases due to questionable breath tests. So….they simply passed a law saying that a breathalyzer doesn’t really have to be accurate: it is automatically admissible as evidence. In fact, it can be demonstrably defective — even completely disfunctional. It doesn’t matter: it’s "close enough for government work". Enough to prosecute and convict.

When scientific truth clashes with the "war on drunk driving", truth inevitably loses. (For another example of law trumping science, see my earlier post, "Truth, Justice…and DUI Politics".) Calling it ‘fundamentally unfair to our system of justice’, attorney Linda Callahan is leading a legal challenge to the new law. "I do believe the legislature sees the evils inherent in drunk driving,’ Callahan says. ‘But in their effort to stop drunk driving what they have done is cast the net so wide that it draws in even the innocent." Ends justify the means…..