Tens of Thousands of DUI Cases Affected by Tainted Breathalyzers in Massachusetts

Thursday, September 20th, 2018

Prosecutors in the state of Massachusetts have agreed to stop using breathalyzer results dating back to 2011 as a result of improper calibration of the breathalyzers when the machines were first purchased by the state. What’s more, state officials later attempted to hide the machines’ flaw from both defense attorneys as well as prosecutors.

The agreement will be presented this week to Judge Robert Brennan, who has been overseeing the proceedings challenging the reliability of the Draeger 9510 since 2015.

Although prosecutors in Massachusetts had already agreed to stop using results from June 1, 2011 to June 14, 2014, defense attorneys learned that state officials in the Office of Alcohol Testing, which is part of the Massachusetts State Police Crime Lab, had withheld hundreds of documents that a judge had ordered them to overturn. Those documents showed a higher calibration failure rate than state officials had previously reported.

According to defense attorney, about 36,500 test results have been affected by the calibration flaw. This includes nearly every breathalyzer result obtained since 2011.

People who were convicted of a DUI where the breathalyzers results were obtained from within that timeframe can seek a new trial if their conviction was based solely on the breathalyzer results. People convicted of a DUI cannot, however, seek a new trial if their conviction was at least partly based on other evidence of intoxication such as observed poor driving by witnesses or police, video, or field sobriety tests.

According to Jake Wark, a spokesman for the Suffolk County District Attorney’s office, the actual number of affected cases will be “significantly lower” than 36,500 because it will not include cases where a breathalyzer was given to a person before being put into protective custody or where someone was given a breathalyzer to show them how the machine works.

Contrary to the usual adversarial rapport between defense attorneys and prosecutors, defense attorneys are maintaining that prosecutors and law enforcement are not to blame for the monumental blunder.

“It was not the assistant district attorneys who were withholding the material, said Joseph Bernard, an attorney leading the litigation over the machines. “They had nothing to do with this and when they found out, they rose up.”

Prosecutors are, however, still arguing to use the results in DUI cases involving death or severe injury, or in fifth or subsequent DUI cases. Additionally, prosecutors are proposing a cutoff date of August 31, 2017, after which they can begin using the breathalyzer results again.

Defense attorneys are arguing that the use of the breathalyzer results should continue to be halted until the state lab obtains accreditation by a national standards group, ANSI-ASQ National Accreditation Board, which likely wouldn’t happen until 2020.

It shouldn’t come as a surprise to anyone where I fall on this. If the results are faulty, they should not be used in any DUI case, including those that involved death or serious injury and fifth or subsequent DUI’s. The seriousness of the offense does not justify the use of tainted evidence.

Furthermore, those convicted of a DUI should not be barred from re-trial simply because other evidence existed. Just because other evidence exists that tends to show intoxication doesn’t mean that that evidence alone and without the breathalyzer result would have produced the same result.

We’ll have to wait and see how this, as I referred to it earlier, monumental blunder plays out in Massachusetts.

 

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Arrested for a DUI by Robocop

Friday, September 14th, 2018

Could it be that sometime in the future drunk drivers can be arrested by robotic law enforcement? If you’re anything like me, a product of the 80’s, you might be envisioning something like the Terminator, or Robocop. While we may be closer to automated law enforcement than some might think, it’s not as cool as what my imagination envisions.

Motorola has patented an autonomous car that may actually replace law enforcement in the fight against drunk driving.

Called the “Mobile law enforcement communication system and method,” the vehicle as described in Patent 10049419 is a “communication system, comprising: a self-driving vehicle within which to detain a detainee by law enforcement” that has the ability to make an arrest of a drunk driver, reads the drunk driver their Miranda Rights, determines who the driver’s attorney is, calls the driver’s attorney, communicates with a court regarding bail, and allows the drunk driver to swipe a credit card to post that bail.

Don’t believe me? See Patent 10049419 for yourself.

According to the developers, a self-driving vehicle will respond to a DUI stop where “the detained or arrested individual is placed into the self-driving vehicle for initial processing. Depending on the type of incident or alleged infraction, the individual may or may not remain handcuffed within the vehicle, but is detained within at least a portion of the vehicle throughout the process, such as a backseat area. [P]redetermined law enforcement processes and proceedings take place…using the autonomous vehicle’s communication system.

“Depending on the severity of the incident or alleged infraction, the processes and proceedings taking place within the self-driving vehicle may take the form of one or more of testing, booking, arraignment, and even full adjudication, if applicable. For example, the mobile communication system can be used as a mobile test hub for determining alcohol levels, drugs, and/or weapons. Sensors and scanners plugged in within the self-driving vehicle provide preliminary in-vehicle screening tools to help law enforcement officers assess a driver suspected of being drunk, carrying a dangerous or weapon, and predetermined drugs. As air sensors and scanners continue to evolve, the detained individual may simply remain within the vehicle while the tests are processed, analyzed, and results communicated to one or more appropriate recipients. Depending on the status of the detainee’s confinement, results may be communicated, over one or more wireless communications networks, to law enforcement, a remote attorney, and/or an on-call judge which may be contacted by the communication as part of the mobile processes and proceedings.”

Should this ever come to fruition in my lifetime, I’m not sure how I feel about it considering I still use a pin-on-the-wall calendar to keep track of my upcoming events rather than my smartphone. I can say, however, that it may be better than the subjective and often bias determinations made by the human law enforcement officers we deal with today.

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The Right to Remain Silent During a DUI Stop

Friday, September 7th, 2018

Few people know that they have a right not to say anything to an officer who has pulled them over on suspicion of driving under the influence. Sometimes a person knows that they don’t need to speak to the officer but do so anyways because they think that cooperation will help their cause. Sometimes a person just gets so nervous that they don’t even think about it and start answering the officer’s questions.

What kind of questions?

Some questions an officer might ask, and almost always do, include: “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”

The driver is doing him or herself no favors if they answer with, “I’m going home from the bar and I’ve only had one or two drinks.” All the driver has done is given the police more reason to arrest them and given the prosecutor more evidence to convict them.

Maybe the driver wouldn’t have answered the officer’s questions had they been read their Miranda Rights. Why didn’t the officer read the driver their Miranda Rights before the officer started asking questions? When does the officer have to read the driver their Miranda Rights, if at all?

Before we get into when an officer must give Miranda Warnings to a DUI suspect, it makes sense to address why officers give Miranda Warnings in any case.

All statements given to law enforcement must be voluntarily given, even those given during a DUI stop. The United States Supreme Court in the landmark case of Arizona v. Miranda said that a statement cannot be voluntarily given if a person doesn’t know they have a right not to say anything under the 5th Amendment. Therefore, in order for a statement to be voluntarily given, a person must be made aware that they have a right to remain silent.

Whether it is a DUI stop of an arrest for murder, the Court held that an officer must read a person their Miranda Warnings before a “custodial interrogation.” This means after an arrest and before an interrogation.

When a person is stopped on suspicion of a DUI or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. And inevitably the officer is going to ask questions after stopping the person.

Now, the person has the right not to speak to the officers or answer their questions. But the officer’s duty to advise the driver of the Miranda Warnings has not yet been triggered because the person is not yet under arrest.

Questions asked during this time are considered merely preliminary in nature. And yes, any answers given by the driver during this time are fair game for officers and prosecutors to use in a DUI case against the driver.

It would be a different story if, after the DUI stop, the driver is arrested, but not given Miranda Warnings. If the officer then proceeds to ask the driver questions and the driver answers, those answers would be in violation of Miranda and thus in violation of the 5th Amendment.

So whether it’s before a driver is arrested or after with Miranda Warnings given, a person never has to talk to officers or answer questions. The 5th Amendment right to remain silent exists whether the Miranda Warnings are given or not. Use it! When stopped on suspicion of a California DUI, simply respond to any questions with, “I respectfully decline to answer any questions under the 5th Amendment. Am I under arrest or am I free to leave?”

 

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Probation for “One of the Worst DUI Offenders in US”

Thursday, August 23rd, 2018

A Minnesota woman, who has been dubbed by police as “one of the worst DUI offenders in the United States” was sentenced on her seventh DUI conviction to 24 months of probation.

Tasha Lynn Schleicher, 41, or New Hope, Minnesota was arrested in April of this year after police responded to a report of a woman passed out behind the wheel of her vehicle at a gas station in Riverside, Illinois.

Upon finding Schleicher, law enforcement said they found her alert and conscious with keys in the vehicle’s ignition and the engine running. Law enforcement also said that it appeared that Schleicher had mistakenly attempted to fill her vehicle’s gas tank with kerosene instead of gasoline while at the kerosene pump.

Law enforcement also noticed that Schleicher appeared to be highly intoxicated and had an open bottle of Crown Royal Canadian whiskey in her front passenger seat.

When law enforcement requested that Schleicher step out of her vehicle so that she could perform field sobriety tests, she was “in total disarray, not wearing shoes, and her clothes were literally falling off her.”

Schleicher proceeded to tell the arresting officers that she had 11 children who she could not find. Witnesses said that Schleicher appeared to be the only one in the vehicle and, after a search of the area, officers found no children nearby.

After refusing the field sobriety tests, Schleicher was arrested on suspicion of driving under the influence.

After the arrest, officers learned that Schleicher’s 11 children had been taken away from her for reasons all related to her alcohol and drunk driving incidences.

The Minnesota mother told law enforcement that she was in Illinois to drop off her 15-year-old son – the only child still in her legal custody – to “party” for spring break. She also told law enforcement that she was pregnant, bleeding, and having a miscarriage. Schleicher was then transported to the hospital where it was confirmed that she was, in fact, not pregnant.

“She’s lied about her name, date of birth, Social Security number and even that she was pregnant, leaving officers no choice but to take her to the emergency room for treatment for something completely fictitious. I believe her trip to the hospital was really an attempt by her to escape custody,” Riverside Police Chief Thomas Weitzel said.

After he arrest, law enforcement determined that Schleicher had outstanding warrants in three states and six prior DUI arrests in Kentucky, Wisconsin, Indiana, California, Oregon, and Minnesota.

“Schleicher’s history of six prior DUI’s in six states, with three outstanding warrants from various states speaks to her transient nature. When she was arrested in a state, she would just not show up in court unless she was held in custody. That’s one of the reasons for so many outstanding warrants. In Minnesota she was arrested with children in the car, and alleged to have been breastfeeding one child while driving intoxicated,” Weitzel said.

Although Schleicher was indicted by a grand jury on seven felony counts of aggravated drunk driving, driving with a revoke license, driving without insurance, and transporting open alcohol, all charges were dropped except for a single DUI charge as part of a plea deal.

On Monday, Schleicher pleaded guilty to that single DUI charge and was sentenced to 24 months of probation.

“A sentence of 24 months of probation for Ms. Schleicher is, simply put, disappointing,” Weitzel said in an emailed statement Tuesday. “This continues to demonstrate that as a nation that drunk driving and drugged driving are not treated as a serious criminal offenses. Society’s views need to change and habitual DUI offenders need to be held accountable for their actions.”

You can form your own opinions about whether two years of probation is appropriate or not. What is not up for opinion is the fact that that alcoholism is a legitimate disease and one that cannot be cured with punishment as evidenced by Schleicher.

 

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Can you be Stopped for a DUI after an Anonymous Tip?

Friday, August 17th, 2018

I’ve seen them and I’m sure you have too; road signs or billboards that encourage drivers to call the police if they spot a suspected drunk driver on the road. I can tell you that drivers often do, in fact, anonymously call police to report other drivers whom they suspect are driving drunk. If the callers are anonymous, how do the police know whether they are telling the truth about what they saw or whether they are even accurate? Police don’t know and, unfortunately, they don’t need to know. According to the law, an anonymous tip is enough for law enforcement to stop someone on suspicion of driving under the influence.

In 2014, the United States Supreme Court decided the case of Navarette v. California, which concluded that law enforcement can go off of an anonymous tip to stop a suspected drunk driver.

The case stemmed from a 2008 stop where a motorist was pulled over by California Highway Patrol after an anonymous tip. The anonymous tipster told the dispatcher that they had been run off of Highway 1 near Fort Bragg by someone driving a pickup truck and provided the pickup’s license plate number. As the CHP officer approached the pickup, they smelled marijuana and discovered four bags of it inside the bed of the truck.

Following the stop, the occupants of the truck were identified as brothers Lorenzo Prado Navarette and Jose Prado Navarette.

At the trial level, the brothers filed a motion to suppress evidence claiming that the officers lacked the reasonable suspicion needed to stop them, thus violating the Fourth Amendment of the United States Constitution. The judge, however, denied the motion. The brothers then pleaded guilty to transporting marijuana and were sentenced to 90 days in jail.

The brother appealed. However, the appellate court in a 3-0 ruling said, “The report that the [Navarettes’] vehicle had run someone off the road sufficiently demonstrated an ongoing danger to other motorists to justify the stop without direct corroboration of the vehicle’s illegal activity.”

The appellate court relied on the 2006 California Supreme Court case of People v. Wells, which stated, “the grave risks posed by an intoxicated highway driver” justifies a brief investigatory stop. It found that there are certain dangers alleged in anonymous tips that are so great, such as a person carrying a bomb, which would justify a search even without a showing of reliability. The court went on to say that a “drunk driver is not at all unlike a bomb, and a mobile one at that.”

The case was appealed once again to the United States Supreme Court. And, once again, the Court ruled that an anonymous tip can give law enforcement the reasonable suspicion to pull someone over on suspicion of driving under the influence.

The Supreme Court stated that ““under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop,’” quoting the 1990 case of Alabama v. White.

In finding “sufficient indicia of reliability,” the court relied on 1.) the fact that the caller claimed eyewitness knowledge of dangerous driving, 2.) the fact that the tip was made contemporaneously with the incident, and 3.) the fact that the caller used 911 to make the tip likely knowing that the call could be traced.

According to the Court, if the tip bears “sufficient indicia of reliability,” officers need not observe driving which would give rise to suspicion that a person was driving under the influence or even that the driver committed a traffic violation. They only need the unverified and unsupported anonymous tip. 

The problem with this ruling is that people are not anonymously reporting drunk drivers. Rather, they are reporting driving errors, any of which can be interpreted as drunk driving. Everybody makes mistakes while driving. In fact, it might be fair to say that no driving excursion is flawless. This necessarily means that everyone on the road is a target of anonymous tipsters and anyone can be arrested on suspicion of DUI simply because someone else reported their mere driving mistake.

In his dissent, Justice Scalia voiced the same concerns:

“Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road…are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.”

 

 

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