Category Archives: Duiblog
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.
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…..
Some time ago I wrote a post about the efforts of police and prosecutors to stretch the DUI net as far as possible — and then some. Entitled "DUI on a Horse?", it reported cases of citizens charged with being under the influence of alcohol while "driving" such "vehicles" as a bicycle, a lawn mower and a horse. How far will law enforcement go? Consider the following excerpt from a story in the St. Petersburg Times (January 4, 2005):
"BROOKSVILLE — A Hernando judge Monday threw out the case against a 46-year-old woman accused of driving drunk while operating her wheelchair. "Judge Peyton Hyslop, in one of his last rulings from the bench, said the wheelchair essentially was the woman's legs and that charging her in this case would be tantamount to bringing DUI charges against anyone who was drunk and standing up…..
Hyslop said under those terms, an able-bodied totally intoxicated person sitting next to the impaired disabled person "would not be subject to such arrest, and only to arrest if disorderly". "(The woman) acknowledged having a few beers while taking her prescription medication. She suffers from degenerative disc disease, osteoarthritis and scoliosis, according to court documents…."
I mentioned in an earlier post ("Are Police Watching Your Home? ") that police agencies, urged on by the the President’s Commission Against Drunk Driving, have begun to assign officers to stakeout the homes of individuals on probation for DUI — sometimes for days — waiting for them to violate their probation by driving.
Aside from the obvious objections, of course, the larger concern is that if police can watch the homes of those with DUI records today, what legally is to stop them from watching your home tommorrow? Do we really want police staking out our homes, waiting for us to make a mistake? Commenting upon this, Scott Henson has reported on his weblog the efforts of the federally-funded Center for Transportation Analysis to require cars to be equipped so they will not start without first inserting a valid driver’s license in an ignition interlock device. This is but one of many ideas proposed to deal with drunk drivers.
What is of greater interest, however, is the CTA representative’s explanation of how Americans’ "historical" concerns about invasion of privacy and Big Brother can be overcome — by initially demonstrating the technology on unsympathetic targets who "have fewer privacy ‘rights’ ":
"American society historically resists excessive government intervention and Big Brother programs that threaten to invade privacy," Hu says. "One of the biggest challenges to implementing electronic driver’s licenses will be to secure widespread public acceptance and community support." Hu thinks that the U.S. public will be more likely to accept this technology if it is first demonstrated on high-risk drivers. "Targeting a demonstration project at drivers who might have fewer privacy ‘rights,’ such as convicted DUI offenders, might reduce public concern about invasion of privacy," she says."
[Note: the quotes around the word "rights" have not been added.] As Mr. Henson paraphrased: "First they came for the drunks, but I was not a drunk so I did not speak up….."