“I Don’t Need No Stinkin’ Convictions!”

October 21, 2010 by Lawrence Taylor  
Filed under DUI

  What’s wrong with this picture…besides the macho "top gun" stuff?

Local Officers Honored as "Top Guns" for DUI Arrests

York, PA.  Oct. 20 – Local law enforcement officers will be honored for taking more than 380 impaired drivers off York roads last year.

The Pennsylvania Driving Under the Influence Association will honor 48 officers statewide with 2010 DUI Top Gun Awards…

"We are taking this opportunity to honor those officers in Pennsylvania who were leaders during 2009 in either making DUI arrests or conducting drug influence evaluations on impaired drivers," C. Stephen Erni, executive director of the Pennsylvania DUI Association, said…

So….why are cops being given awards for making arrests — rather than for arrests resulting in convictions?  (For a discussion of the problem, see my earlier post Officers Rewarded for Arrests – Not Convictions.)

Goal: Eliminate Drinking…or Dangerous Driving?

October 18, 2010 by Lawrence Taylor  
Filed under DUI

Two stories in today’s newspapers say a lot about where the focus is for saving lives on the highways:

Random Tests Go Too Far

Winnipeg, Canada.  Oct. 18 — Police powers to check for impaired driving have encroached relentlessly upon civil liberties, such that innocent motorists are randomly, routinely pulled over and questioned, absent of cause. If an officer suspects any drinking has occurred, drivers must take a test. The penalties for refusing are equal to failing the test...

Now the Harper government wants to eliminate the need for any suspicion of drinking, allowing police to randomly demand a roadside test.

Advocacy group Mothers Against Drunk Driving is celebrating, saying this should make the glass of wine with dinner a thing of the past…

MADD, however, has been strangely silent about the proven greater dangers to human life of talking or texting on cell phones while driving.

Texting and Driving a Costly Business Risk

Miami, FL.  Oct 18 — Cellphones and driving don’t mix.

According to the National Safety Council, an estimated 200,000 crashes a year are caused by drivers who are texting. And that doesn’t include the near-misses. Added to that, a recent Car & Driver Magazine study found that texting and driving was more hazardous than drinking and driving, with texting drivers three to four times slower in their response rates than drunk drivers...

Perhaps Candy Lightner, the founder and first president of MADD, was right when she quit the organization, claiming that it its focus had shifted from saving lives to prohibition.

How Body Temperature Changes Breathalyzer Results

October 13, 2010 by Lawrence Taylor  
Filed under DUI

As I have said in earlier posts, law enforcement investigation techniques depend largely upon the fictitious premise that all humans are physiologically identical (see “Convicting the Average DUI Suspect"). Without that presumption, field sobriety and breath alcohol tests would not be possible. I have previously discussed many examples of physiological differences — from person to person and within one person from moment to moment — which will directly alter breath or blood alcohol testing (see, for example, “Diabetes and the Counterfeit DUI”, “GERD, Acid Reflux and False Breathalyzer Results" and "The Effect of Anemia on Breath Tests").

Yet another example of variability is body temperature. Put simply, an individual’s body temperature will have a direct effect on the results of a breath test. The effects of changes in body temeprature from the norm of 98.6 degrees on breath testing has been discussed in an article entitled “Body Temperature and the Breathalyzer Boobytrap”, 721 Michigan Bar Journal (September 1982). If because of illness, for example, the body temperature is elevated by only 1 degree Centrigrade (1.8 degrees Fahrenheit), the 1:2100 breath-to-blood partition ratio will be affected so as to produce a 7 percent higher test result. Higher body temperatures will, of course, result in greater errors.

You don’t have to be sick to have a higher body temperature. Dr. Michael Hlastala, Professor of Physiology, Biophysics and Medicine at the University of Washington, confirms this — and the effects on breath test results. In an article entitled “Physiological Errors Associated with Alcohol Breath Testing”, 9(6) The Champion 18 (1985), he comments that even the average body temperature of a normal, healthy person “may vary by as much as 1 degree Centigrade above or below the normal mean value of 37 degrees Centigrade — or 1.8 degrees from the mean value of 98.6 degrees Fahrenheit”.

Not only can the normal mean body temperature of an individual vary from that of other persons, but the “temperature of any individual may vary from time to time during the day by as much as 1 degree Centigrade”. Result? The partition ratio for alcohol in blood is altered — meaning, according to Professor Hlastala, a 6.3 percent error for every 1 degree Centigrade increase or decrease from the presumed normal body temperature.

Yet another example of how breathalyzers are not actually testing you, but rather an “average” person who does not exist.

The March Toward .05%

October 7, 2010 by Lawrence Taylor  
Filed under DUI

As I’ve explained in past posts, the original legal limit for drunk driving was set in 1938:  0.15%.  This was based upon studies and recommendations from the American Medical Association.  Many years later, this was lowered to .10% and finally, after intensive lobbying by Mothers Against Drunk Driving, to 0.08%.  See DUI, MADD and the "New Prohibition".

MADD’s agenda is to get it lowered further — to .05%.  The eventual goal is .00% — conviction for drunk driving if there is even a trace of alcohol in the system, regardless of the absence of any indication of impairment.  (Note: MADD has already been successful in achieving .01% "zero tolerance" laws nationwide for drivers under 21.) This bears out the reasons why MADD’s original president, Candy Lightner, resigned from the organization she founded, saying it had become essentially prohibitionist rather than dedicated to saving lives.

In today’s news, the latest in MADD’s strategy:

Austin Chief Pushes for New Drunk Driving Charge

Austin, TX.  Oct. 7 — A campaign to create a new category of driving while intoxicated is being promoted at the Capitol as one way to curb growing problems in Texas’ system of punishing drunken drivers.

Austin Police Chief Art Acevedo, among the supporters of the change, said the idea behind a new offense of “driving while ability impaired” — DWAI — would cover drivers whose blood-alcohol content is between 0.05 and 0.07.

That would be less than the 0.08 level required before police can charge a motorist with drunken driving…

Acevedo…noted that one person may drive dangerously at the 0.08 level — the nationally accepted standard for being drunk — while others “may be at 0.05 or 0.06. It depends on the person.”

“People sometimes focus on how many drinks they can have before they’ll go to jail,” Acevedo said. “It varies. … A person may be intoxicated at 0.05, and you don’t want them out driving.”

In his written testimony (to the Senate Criminal Justice Committee), Acevedo said he thinks the changes would make it easier to process and convict drunken drivers “as well as preventing others from making that initial mistake to drink and drive.”

Bill Lewis, the legislative director for Mothers Against Drunk Driving, which has led the charge in recent years to toughen Texas DWI laws, said the group has not reviewed or endorsed the proposed new charge of DWAI. He added, “I don’t see how it would hurt.”

Hmmm….Some people will be intoxicated at .08%, but "others may be at 0.05%".   May be?  So everyone with .05% is convicted and punished for drunk driving — because some of them might be intoxicated? 

MADD marches on….

(Thanks to Murphy Mack.)

DUI As Murder

September 29, 2010 by Lawrence Taylor  
Filed under DUI

I’ve mentioned in past posts the growing trend among prosecutors around the country to elevate drunk driving fatality cases from the crime of manslaughter to the crime of murder, usually resulting in life imprisonment.  See for example, DUI Murder?, How to Convict a Drunk Driver of Murder and The Death Penalty for DUI?

The most recent example concerns a DUI murder case this past week in Orange County, California, reported in an Associated Press news story entitled Murder Charges Increasing in Fatal DUI Cases.  In the trial, the defendant was only charged with murder, not with manslaughter.  After extensive deliberations, the jury returned a verdict of guilty.

During the trial, I granted two interviews with the reporter.  As so often happens, however, I was misquoted.  The two points I was trying to make to the reporter in objecting to a murder charge rather than one for manslaughter are important to understand:

Murder vs Manslaughter and the Concept of "Malice"

The legislature of California passed a law specifically for the situation where a death results from drunk driving:  vehicular manslaughter.  It is a "general intent" crime, that is, the driver does not have to intend to kill the victim to be guilty of manslaughter.  They also passed a law for murder:  "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought".  The statute made the killing first degree murder if it was premeditated, and added that "All other kinds of murder are of the second degree".  Thus, an intentional killing without premeditation is second degree murder….as is any killing that is done with "malice"  

So….What is "malice"?  Much like the legal definition of "obscenity", no one seems to know.  The California statutes fumble with the definition, settling on:  "…when the circumstances attending the killing show an abandoned and malignant heart".  Ok, but how do you define an "abandoned" heart"?  How do you prove or disprove a "malignant heart"?  What is a jury supposed to do?

A few years ago, a clever prosecutor in California charged a defendant in a DUI fatality case with murder rather than manslaughter.  He believed that he could get a jury to buy the idea that driving under the influence of alcohol (or driving over .08%) satisfied the vague concept of  "malice".  He was right, and the practice began to spread.  This was accelerated by the California Supreme Court’s decision in People v Watson, where the Court said that a drunk driver could have the required "malice"…whatever that is.  

Since then, there have been a number of appellate decisions trying to establish what is required to prove malice in a DUI case.  The result:  it is malice if the driver knew that drunk driving could be dangerous.

Duh…Don’t we all know that?  

Clearly, these are vague terms which can mean what you choose them to mean.  As the Mad Hatter said to Alice in Through the Looking Glass:

“When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is”, said Alice,”whether you can make words mean so many different things.”

“The question is”, said Humpty Dumpty, “which is to be master — that’s all.”

The simple fact is that there is a very clear and concise statute which was intended for drunk driving causing death: manslaughter.  There is no mention of DUI in the murder statute, nor was it ever intended for that situation.

Prosecutorial Tactics in Bypassing the Manslaughter Law

The prosecutor in last week’s Orange County case used an increasingly common but clever tactic: don’t charge the defendant with the usual murder and manslaughter — just with murder.  If both are charged, the jury is likely to understand that (1) the manslaughter statute is clear and fits the facts, and (2) "malice" is too vague to send a man to prison for life.

But isn’t that a big gamble by the prosecutor?  If the jury doesn’t buy the murder theory, the defendant goes free.

Exactly!  And the prosecutor know this: he is putting the jury in the position of either convicting the defendant of murder…or letting him walk out of court unpunished for a deadly crime.  He knows the jury does not want to let a drunk driver who killed a man get away with it, even if they may be uneasy with "malice".  And they are never told that there is a manslaughter law intended for this kind of case.  

Many years ago when I was a deputy district attorney in Los Angeles, there was a cynical saying in the office:  "Anyone can convict a guilty man; it takes real skill to convict an innocent one"….

A Look Into Our Future

September 24, 2010 by Lawrence Taylor  
Filed under DUI

From our neighbors to the north, a preview of things to come…

Cops Now Judge, Jury, Prosecutor

Vancouver, B.C.  Sept. 24 –  B.C.’s tough new drunk-driving laws are giving police too much power and are putting a serious chill on the restaurant business, critics say.

There’s also widespread confusion over what the average person can consume, and safely drive. But supporters of the new penalties rolled out this week, which are the toughest in Canada, say one drink at dinner is one too many.

Under the new rules, testing for a blood-alcohol reading of 0.08 and failing a roadside test means an immediate 90-day driving ban, along with a 30-day vehicle impoundment. Drivers may face a criminal charge, and up to $4,060 in penalties.

And being in the warning range of 0.05 to 0.079 means an immediate three-day driving ban, a $250 fine, $200 to get your licence back and a possible three-day vehicle impoundment — all for a first offence.

David Eby, executive director of the B.C. Civil Liberties Association, says everyone wants drunk drivers off the road — but handing police the sole power to impose fines, plus take away cars and licences without giving the driver a day in court, is dangerous.

"The police officer at the side of the road has become judge, jury and prosecutor," Eby said.

SFU criminologist Neil Boyd said on the one side, too many drunkdriving charges were being "evaded" in court by well-heeled citizens in B.C. — a problem the government can solve with new powers and penalties.

But "there has to be some recourse to the courts," he said. "There’s something a little awry with giving the police a rather extraordinary administrative power."…

By drunk driving charges being "evaded in court", I assume the criminologist meant defending yourself against charges — "a problem the government can solve with new powers and penalties".  By turning the "trial" over to the cop. 

79 DUI Cases Thrown Out: False Police Reports

September 22, 2010 by Lawrence Taylor  
Filed under DUI

Drunk driving is one if those crimes which is highly susceptible to falsifying evidence.  This is because the offense is highly dependent on the cop’s own observations and opinion.  Typically, proving "driving under the influence of alcohol" depends upon the officer’s testimony of such symptoms as weaving on the highway, odor of alcohol on the breath, flushed face, slurred speech, bloodshot eyes, poor balance, staggering when walking, etc.  Usually, there are no other witnesses to contradict these "observations"; certainly, no one will believe the accused.  

The only evidence that can contradict the officer is a blood or breath test.  However, this is easily avoided: the cop simply claims that the arrested citizen "refused" to submit to testing.  This results in higher criminal penalties — and avoids any evidence contradicting the officer’s damning observations and opinion of intoxication.

How common is this?  See my past posts: Supercops…and SuperconsAnother "DUI Super Cop", and More "DUI Super Cops"…and More Innocent Victims.  

The motive?  Fulfilling quotas, overtime pay for testifying in court, promotions for high numbers of arrests, gaining awards in personnel files from MADD, etc.  See 3rd Chicago "DUI Super Cop", "Inside Edition" Documents DUI Quotas Across U.S., DUI SuperCops and SuperCops: The Smoking Gun

The following recent news article is yet another example of the proliferation of false DUI arrests:  

DA Throws Out DUI Cases Due to False Reports

Sacramento, CA.  Sept. 17
— Sacramento District Attorney Jan Scully announced Friday morning that she is dismissing 79 criminal cases, mostly DUI cases in which a former Sacramento Police officer falsified reports.

The dismissal of the cases in a result of a lengthy investigation of over 200 cases of arrests made by former Sacramento Police officer Brandon Mullock. Mullock resigned from the police department on August 27th. He was initially placed on administrative leave in January after being arrested for brandishing a weapon while off-duty after getting in an argument with someone on 9th St. and J St . Mullock later plead guilty to disturbing the peace.

During the course of the investigation of Mullock, discrepencies were discovered in several DUI reports made by Mullock and police forwarded their case to the District Attorney’s office which lead to the dismissal of the 79 cases today.

Film a Cop and Go to Prison

September 17, 2010 by Lawrence Taylor  
Filed under DUI

I posted a couple of weeks ago about the disturbing trend toward prosecuting citizens for recording cops with such devices as cell phones — even if they are engaged in illegal conduct such as beating a helpless person.  See Taping a Cop Making an Arrest is a Felony.  The following news article contains an interesting video from the CATO Institute of police filmed by citizens. 

Police Continue to Harass Citizens Who Record Them 

Wash. DC.  Sept. 13  – A number of cases show how police continue to misunderstand citizens’ rights to record their behavior, and they’re now neatly compiled into a video from the Cato Institute.

The Examiner editorialized on the subject in June, noting that those who record police frequently are “more of a threat to the jobs of public safety officers than to public safety itself. One is not the same as the other.” State legislatures should start addressing this issue to prevent more misunderstandings and wrongful arrests.

One has to wonder how recording from a distance interferes with the officer’s duites?  Why wouldn’t police and prosecutors welcome any clear evidence of the truth?  What are they trying to hide?

Breathalyzers: When Alcohol Is Not Alcohol

September 13, 2010 by Lawrence Taylor  
Filed under DUI

Breathalyzers don’t actually measure alcohol.

That’s right.  What these machines actually detect and measure is any chemical compund that contains the methyl group in its molecular structure. There are thousands of such compounds — including quite a few which can be found on the human breath. And this machine that determines a person’s guilt or innocence will “see” all of those chemicals as alcohol — and report a falsely high “blood-alcohol” concentration (BAC).

Most breath machines used by law enforcement in DUI cases today employ a technology called infrared spectroscopy. The DUI suspect breathes through a tube connected to the machine and a breath sample is captured in a small sample chamber inside the machine. Then beams of infrared light are shot through the captured breath sample. If there are any compounds containing the methyl group, they will absorb some of this light; the more of the chemical compound in the breath sample, the more light is absorbed. The more light that is absorbed, the less that reaches sensors at the other end of the sample chamber. And the less light that is detected by the sensors, the higher the supposed “blood-alcohol” reading.

Problem: the machines are, scientifically speaking, fairly unsophisticated. They are, as scientists say, non-specific — that is, they are not capable of detecting and measuring a specific compound.  More important for government work, they are relatively cheap.  Rather than use more expensive filters and/or multiple filters, for example, most breathalyzers use only one or three less-costly filters.  Result:  these machines can only detect and measure a broad range of compounds containing the methyl group — and they then simply assume that the unknown compound within this group is ethyl alcohol.

If a person has any of these other compounds on his breath, called interferents by the scientists, he will get a falsely high breath alcohol test result. And if there are two or three such compounds on his breath, the machine will read a cumulative result: it will add them up and falsely report the total as the breath-alcohol level.

So what kinds of compounds may be on a person’s breath that can cause false BAC readings in a DUI case? In one study of eight men, 69 different compounds containing the methyl group were discovered.  “Trace Composition of Human Respiratory Gas”, 30 Archives of Environmental Health290.  In another study invoviing 28 subjects, researchers found that the “combined expired air comprises at least 102 various organic compounds of endogenous and exogenous origin”.  “Characterization of Human Expired Air”, 15 Journal of Chromatographic Sciences 240.  And Canadian scientists have discovered over 200 such compounds.  “The Diagnostic Potential of Breath Analysis”, 21(1) Clinical Chemistry 5.

What are these compounds?  Are there any on my breath?  Well, for starters, diabetics with low blood sugar can have high levels of acetone — which is “seen” as alcohol by breathalyzers. And scientific studies have found that people on diets can have reduced blood-sugar levels, causing acetone hundreds of times higher than found in normal individuals. Frank and Flores, “The Likelihood of Acetone Interference in Breath Alcohol Measurements”, 3 Alcohol, Drugs and Driving 1. And there are many other so-called “interferents”. See, for example, “Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol”, 9 Journal of Analytical Toxicology 246.

If you are a smoker, your breathalyzer result is likely to be higher than expected. The compound acetaldehyde — reported by the breathalyzer as “alcohol” — is produced in the human body as a by-product in metabolizing consumed alcohol, and eventually passes into the lungs and breath. Researchers have discovered that levels of acetaldehyde in the lungs can be 30 times higher in smokers than in non-smokers. Result: higher BAC readings on the machine.

And then there are the industrial compounds: paint, glue, gasoline, thinners, and other compounds contain the methyl group. No, you don’t have to drink the stuff: simply absorbing it through your skin or inhaling the fumes can result in significant levels of the chemical in your body for hours or even days, depending upon the half-life of the compound. So if you’ve painted a room or been around gasoline in the last day or two, don’t breath into a breathalyzer.

Some law enforcement officials say that this is not a problem, claiming that levels of the compound would have to be at toxic levels to raise a breath test result to .08% or higher. These officials are displaying their ignorance of the science involved — specifically, of the partition ratio. This is the ratio of the compound found in the breath to that found in the blood. With ethyl alcohol, the ratio is 2100-to-1, which means that, on average, there will be 2100 units of alcohol in the blood for every unit found in the breath. These officials are using this ratio for all compounds, but every compound has its own ratio. Toluene (found in paint, glue, thinners, cleaning solvents. etc.), for example, has a partition ratio of only 7-to-1; a far greater amount of toluene in the blood will pass into the breath, and so a much smaller amount in the body will have a far greater impact on the breath machine.


Arrested Driver Liable for Costs of Car Impound — Even if Not Guilty

September 7, 2010 by Lawrence Taylor  
Filed under DUI

So you were arrested for drunk driving, and your car was impounded by the police.  And you had to pay a chunk of money to get your car back.  But you were later found not guilty of the offense, so you get it back, right? 

DUI Fees Still Apply if Driver Acquitted of DUI?

Riverside, CA.  Sept. 5
– Q:   The Aug. 2 column, dealing with the financial costs of a DUI conviction, prompted a related question from Murrieta resident Bill Albrant. Whhen someone is arrested on a DUI charge, their vehicle is impounded. They will have to pay at least $250 to retrieve it later, paying for the towing and the storage, according to the Insurance Information Network of California. Albrant asked what happens when someone is acquitted of the DUI charge.

A: Unfortunately, there’s no clear answer about this, said Pete Moraga, spokesman for the network.

That’s because there can be many reasons for a DUI acquittal. Proving you weren’t guilty is only one of them. Others include cases in which the officer didn’t show up in court or procedural problems with the case (for example, if the officer didn’t read the defendant his Miranda rights).

"If it could be proven the driver was not impaired, there are more grounds to get your money back," Moraga said, "but the difficulty is, to what extent can you prove that?"

Meanwhile, regardless of whether someone is guilty of DUI, the towing company did tow and store your car and will require payment for that. Usually law enforcement agencies have contracts with towing and impound services.

Someone’s ability to be reimbursed for their costs may depend on the contract between the police and the towing service, Moraga said. If the law enforcement agency is willing or able to absorb the impound costs, the acquitted individual may be in luck — but as Moraga noted, this is unlikely.

How can citizens found not guilty of a crime still forced to pay for costs of the arrest?  Oh, right, this is a drunk driving case.  And the municipalities get a chunk of those impound fees. 

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