Big Brother Is Watching You

Although the following news story doesn’t directly involve DUI, I think it should be of concern to any citizen in this country who has the uncomfortable sense that our constitutional rights are slowly being whittled away and we are drifting toward a police state.

Court Allows Agents to Secretly Put GPS Trackers on Cars

CNN. Aug. 27  –  Law enforcement officers may secretly place a GPS device on a person’s car without seeking a warrant from a judge, according to a recent federal appeals court ruling in California.

Drug Enforcement Administration agents in Oregon in 2007 surreptitiously attached a GPS to the silver Jeep owned by Juan Pineda-Moreno, whom they suspected of growing marijuana, according to court papers. When Pineda-Moreno was arrested and charged, one piece of evidence was the GPS data, including the longitude and latitude of where the Jeep was driven, and how long it stayed. Prosecutors asserted the Jeep had been driven several times to remote rural locations where agents discovered marijuana being grown, court documents show.

Pineda-Moreno eventually pleaded guilty to conspiracy to grow marijuana, and is serving a 51-month sentence, according to his lawyer.But he appealed on the grounds that sneaking onto a person’s driveway and secretly tracking their car violates a person’s reasonable expectation of privacy.

"They went onto the property several times in the middle of the night without his knowledge and without his permission," said his lawyer, Harrison Latto.

The U.S. Ninth Circuit Court of Appeals rejected the appeal twice — in January of this year by a three-judge panel, and then again by the full court earlier this month. The judges who affirmed Pineda-Moreno’s conviction did so without comment.

Latto says the Ninth Circuit decision means law enforcement can place trackers on cars, without seeking a court’s permission, in the nine western states the California-based circuit covers.

The ruling likely won’t be the end of the matter. A federal appeals court in Washington, D.C., arrived at a different conclusion in similar case, saying officers who attached a GPS to the car of a suspected drug dealer should have sought a warrant.  

Experts say the issue could eventually reach the U.S. Supreme Court.

One of the dissenting judges in Pineda-Moreno’s case, Chief JudgeAlex Kozinski, said the defendant’s driveway was private and that the decision would allow police to use tactics he called "creepy" and "underhanded."

"The vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel’s ruling," Kozinksi wrote in his dissent.

"I think it is Orwellian," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, which advocates for privacy rights.

"If the courts allow the police to gather up this information without a warrant," he said, "the police could place a tracking device on any individual’s car — without having to ever justify the reason they did that."

But supporters of the decision see the GPS trackers as a law enforcement tool that is no more intrusive than other means of surveillance, such as visually following a person, that do not require a court’s approval.

"You left place A, at this time, you went to place B, you took this street — that information can be gleaned in a variety of ways," said David Rivkin, a former Justice Department attorney. "It can be old surveillance, by tailing you unbeknownst to you; it could be a GPS."

He says that a person cannot automatically expect privacy just because something is on private property.

"You have to take measures — to build a fence, to put the car in the garage" or post a no-trespassing sign, he said. "If you don’t do that, you’re not going to get the privacy."

 
When did our right to privacy from governmental intrusion start depending on building fences?  And how long do you think even that minimal "privacy" will last?

Taping a Cop Making an Arrest is a Felony

I think the following news story speaks for itself:

ACLU Challenges Illinois Eavesdropping Act

Lawsuit cites cases of people charged with breaking the law for making audio recordings of police in action

Chicago, IL.  Aug. 18 – It’s not unusual or illegal for police officers to flip on a camera as they get out of their squad car to talk to a driver they’ve pulled over.  But in Illinois, a civilian trying to make an audio recording of police in action is breaking the law.

"It’s an unfair and destructive double standard," said Adam Schwartz, a lawyer with the American Civil Liberties Union of Illinois.  

On Wednesday, the ACLU filed a federal lawsuit in Chicago challenging the Illinois Eavesdropping Act, which makes it criminal to record not only private but also public conversations made without consent of all parties.

With cell phones that record audio and video in almost every pocket, the ability to capture public conversations, including those involving the police, is only a click away. That raises the odds any police action could wind up being recorded for posterity.

Opponents of the act say that could be a good thing and certainly shouldn’t lead to criminal charges.

The ACLU argues that the act violates the First Amendment and has been used to thwart people who simply want to monitor police activity.

The head of the Chicago police union counters that such recordings could inhibit officers from doing their jobs.

In its lawsuit, the ACLU pointed to six Illinois residents who have faced felony charges after being accused of violating the state’s eavesdropping law for recording police making arrests in public venues.

Adrian and Fanon Perteet were passengers in a car at a DeKalbe MacDonald’s drive-through in November when police moved in. Officers suspected that the car’s driver was under the influence, according to the brothers.

Fanon Perteet, 23, said he was scared. Past experiences with police had left him suspicious of the officer’s motives, he said. So he pulled out his cell phone and turned on the video camera, which also records sound.

"I felt obligated to record so nothing happened," said Perteet, an event planner.

When the officers realized they were being taped, Perteet was arrested and taken to a squad car. Adrian Perteet, 21, a student at Northern Illinois University, then took out his cell phone and started recording his brother’s arrest.

Both brothers were charged with violating the eavesdropping act, a felony, their lawyer Bruce Steinberg said. They pleaded guilty in April to attempted eavesdropping, a misdemeanor, to avoid felony convictions, Steinberg said.

The Perteets were ordered to apologize to the officers. They were given back their cell phones, which had been seized by police, but told to delete the recordings. If they complete the terms of the sentence and stay out of trouble, the charges will be dismissed, Steinberg said…

So…what are the police trying to hide?  Are they afraid that audio or video tapes will contradict their version of events?  Why would they be afraid of video or audio evidence?  

By the way, the punishment for a felony is imprisonment in the state prison for at least a year.

 

The Dirty Little Secret (of Arizona DUI First Offense)

Here is the math used in Arizona: INCREASED JAIL + DUI PROBLEM = REDUCED DUI PROBLEM.  It makes perfect sense, right.  Who would risk more than a month in jail for a few drinks.  

Apparently - lots of people.  Maybe even more people now, than when the penalties were previously lower.  Unfortunately the State's math is flawed.  Let me give you some anecdotal evidence.

A few weeks ago I was sitting in an arraignment with a client waiting for our case to be called.  Before the judge started calling cases he told the packed court room about Arizona's DUI penalties.  After going through the sentencing schemes he also made the following disclosure in open court. He stated, these DUI penalties have become harsher and harsher ever since he had been practicing law (and by grey color of his remaining hair that appeared to be a long time). "However, my courtroom still stays full." He went on to say that "we all know" the new DUI penalties have not reduced the number of DUI cases but it is the law.  "Fair or not these are the laws I am required to follow."

Well it is not everyday a judge, in open court, makes such a candid admission.  Moreover, the judge's speech was absolutely correct about the Arizona DUI laws.  Those of who are involved in Arizona DUI cases, "all know" the math is wrong.  We all know, law enforcement included, raising penalties does not reduce the number DUI cases.  One reason is the real consequence of a DUI is not jail, but taking someone's life.  If that is not enough to stop someone from driving impaired, then long jail terms that no person really knows the specifics of (until after they are charged), certainly will not have a great impact.

However, I have an idea of what may work.  In part two of this post I make my case for how I believe we should address the problem.  That is, if we are serious about solving it - which I hope we are.


Lawrence Koplow

Judges Influenced by Revenues from DUI Convictions?

As I’ve said in previous posts, drunk driving has become a cash cow for local governments starving for revenue.  See DUI: Government’s Cash Cow, How to Make a Million in the DUI Business and What if the Cash Cow Goes Dry?.  This has lead to such things as putting pressure on cops with DUI arrest quotas.  See Do Police Have Quotas?, "Yes, We Have No Quotas" and  "Inside Edition" Documents DUI Quotas Across the US.  The hunger of municipalities for money might also influence some judges in their rulings… 

Ex-prosecutor challenges process of picking local court judges

 Atlantic City, NJ.  Aug. 9 – Defendants appearing in municipal court have little chance of getting a fair hearing because judges are more concerned with getting reappointed than handing out justice, and the courts are more focused on making money, a former municipal prosecutor said.  

Superior Court Judge Valerie Armstrong heard arguments Monday in a lawsuit filed by Robert Pinizzutto, a former Hamilton Township municipal prosecutor, who claims that the way municipal judges are appointed may affect how they rule…

He also said he intends to provide evidence that municipal fines and assessments bring in excess of a half-billion dollars to municipalities, adding that the figure was from several years ago….

Robert Sandman, who represents Hamilton’s Verno, called it "patently absurd" to say that Norman Merrill Jr. — Pinizzutto’s client who is accused of driving while intoxicated — cannot get a fair trial because of the way the judge is appointed. 

"(The judge) would have to violate his oath as a judge and the professional code of conduct as a lawyer to make that true", Sandman said.

Yes, he would…but he may be more likely to get reappointed by the cash-hungry municipality.

Another Case of Cop Immunity

 The drunk driving double standard continues…

Outcry Swift After DUI Charges Against Officer Dropped
 
Indianapolis, IN.  Aug. 20 – Questions about how Indianapolis police have handled a fatal drunken-driving investigation of one of their own officers became that much more pointed Thursday.

Marion County Prosecutor Carl Brizzi announced he would drop the most serious charges against officer David Bisard. Why? Because Bisard’s fellow police officers had botched the case.

The reaction was swift — and far-reaching.

An embarrassed Public Safety Director Frank Straub announced that the FBI will be brought in on the case. He also removed a lieutenant from his positions as commander of the department’s hit-and-run unit and coordinator of the multiagency Fatal Alcohol Crash Team.

One victim’s family called the dismissal a "travesty." A legal expert said the police ineptness leaves the public with little choice but to wonder whether the bungled case was more than an accident. And Mayor Greg Ballard has become increasingly frustrated as he seeks answers, as well.

"The people in the city are not the only ones wondering what happened at the scene," Ballard said. "I am, too."

Straub and Indianapolis Metropolitan Police Chief Paul Ciesielski repeated their insistence Thursday that Bisard received "absolutely no deference" from fellow officers Aug. 6 after he crashed his cruiser into two motorcycles that were stopped at a light.

The impact of the crash — which occurred while Bisard, 36, was responding to a request for help serving a warrant, with his cruiser’s lights and siren activated — killed Eric Wells, 30, and seriously injured two other riders.

Bisard surrendered after prosecutors learned a blood test had shown his blood-alcohol level was 0.19 — more than twice the level at which an Indiana driver is considered intoxicated.

But that arrest didn’t come until five days after the crash because of the lag in test results. The delay in arresting Bisard drew scrutiny from some — as did the fact that no officers conducted field-sobriety or breath tests of Bisard at the scene.

Or that nobody seemed to suspect Bisard might have been drinking. Officers who interacted with Bisard after the crash have insisted he showed no signs of being impaired.

But more problematic for Brizzi: The officers failed to follow proper procedures in collecting that blood sample — and it was the only evidence that Bisard was intoxicated…

"Everything else can be explained away," said Henry Karlson, an expert on criminal procedure and a professor emeritus at Indiana University School of Law-Indianapolis.  

But add in the mishap with the blood draw by seasoned alcohol-crash investigators, he said, and "there’s only so many mistakes you can make before it starts looking like a plan."

Who will guard the guardians?
 

 

The Education of a Prosecutor

Q. I wish I could get this drunk driver for murder, not just vehicular manslaughter.

A. You’re the prosecutor: You can charge him with anything you want.

Q. But how would I prove the mental state for murder: malice?  I mean, that requires malice.

A.  But the law says you can imply malice.

Q. OK, but imply it from what?

A. "It is implied when…the circumstances attending the killing show an abandoned and malignant heart". [Calif. Penal Code sec. 188]

Q. Yeah, but what the heck is "an abandoned and malignant heart"?

A. Our Supreme Court says it’s when someone "does an act with a high probability that it will result in death and does it with a base anti-social motive and a basic disregard for human life".  [People v. Washington, 62 Cal.2d 777 (1965)]

Q. I don’t know if that’s any easier to prove. "High probability" a DUI will result in death? Anyway, the guy was just drunk: How can I prove "base  antisocial motive" and "wanton disregard for human life" from that?

A. Simple: Don’t prove it, just imply that, too — from the defendant’s knowing that DUI is dangerous. [People v. Watson, 30 Cal.3d 290 (Cal.1981)]

Q. You mean all I’ve got to do is prove he knew drunk driving is dangerous, and I’ve got malice?

A. Yep.  We call it a "Watson murder".

Q. That’s a long way from "high probability it will result in death".

A. Don’t worry about it.

Q. But how do I prove he knew it was dangerous?

A. Like everything else, imply he knew it. Show he’s got a prior DUI conviction [People v. McCarnes, 224 Cal.Rptr. 846 (Cal.App. 1986)] or he’s been to Alcoholics Anonymous [People v. Brogna, 248 Cal.Rptr. 761 (Cal.App.1988)].

Q. But what if the guy isn’t an alcoholic and has never been convicted before?

A. .Just find someone who once told him drunk driving was dangerous.

Q. Really?  What if we can’t find someone….

A. Has he ever attended a driver education class, like in high school? They usually tell them that DUI is dangerous. [People v. Murray, 275 Cal.Rptr. 498 (Cal.App. 1990)].

Q. But doesn’t everybody know DUI is dangerous?

A. Of course.

Q. Then doesn’t everybody have malice if they drive under the influence?

A. Now you’re getting it.

Q. Well, if proving murder in a DUI case is that easy, why not go for the death penalty?

A. They already tried it in a North Carolina case, but the jury went for life without parole. We’re working on it.

Note: Judges in California make anyone convicted of DUI sign a statement saying they understand that DUI is dangerous. This is done so that he can be prosecuted for murder if he is later involved in a DUI-related fatality accident. In other words, despite what the laws say, the crime becomes murder rather than manslaughter if he signed a piece of paper saying DUI is dangerous. Another triumph of form over substance….
 

 

Driving Under the Influence of…Bread

  Phil Price, a friend and nationally known DUI attorney in Montgomery, Alabama, conducted an interesting series of tests a few years ago on one of the most commonly used breath testing machines.  Without consuming any alcoholic beverages, he submitted himself to repeated breath testing — after eating various types of food.

His findings were startling.

After consuming almost any type of bread product — white loaf bread, donuts, pretzels, pastries, etc. — Price consistently registered blood-alcohol readings on the machine. These levels were commonly around .03%, but rose as high as .05% (enough, along with a drink or two, to reach illegal levels). Further, the Intoxilyzer’s slope detector (an electrical circuit designed to detect alcohol from the mouth rather than from the lungs) failed to indicate the presence of any "mouth alcohol". He reported this in an article entitled "Intoxilyzer: A Bread Testing Device?", 15(4)Drinking/Driving Law Letter 52.

Reacting to the use of this article by defense attorneys in their state, the Washington State Toxicology Laboratory conducted their own studies to refute the findings — this time with the machine used in Washington, a DataMaster. Unfortunately, their research only confimed Price’s experience.

As reported in Logan and Distefano, "Ethanol Content of Various Foods and Soft Drinks and their Potential for Interference with a Breath-Alcohol Test", 22 Journal of Analytical Toxicology 18 (1998), a variety of breads and soft drinks were tested and found to contain no alcohol. Alcohol-free subjects then ingested these products and provided breath samples into a DataMaster. The law enforcement researchers’ conclusions:

We found that, particularly at low concentrations but as high as 0.046g/210L, mouth alcohol rather than expiratory breath alcohol may be reported as apparent true breath alcohol…

In other words, alcohol-free subjects who consumed bread or soft drinks were causing the machines to read up to .05% blood alcohol concentrations (readings are rounded off to closest 1/100th percentile). Furthermore, the slope detection system failed to screen the effects of mouth alcohol from that of alcohol coming from the lungs:

It is evident from these results that the slope detector feature was unable to distinguish mouth-alcohol concentrations at these very low levels.

What caused bread to register on breath machines as alcohol? The theory of the state lab’s experts:

Most baked products with listed contents indicating they contained yeast did in fact have some alcohol present. Alcohol is produced by the fermentation process in yeasts by their action on simple sugars used in preparing the dough….Although most of the alcohol in the dough is lost during the baking process, some is evidently retained in the matrix of the bread…

Parenthetically, there exists additional scientific literature reporting intoxication in animals eating dough and sourdough. Suter, "Presumed Ethanol Intoxication in Sheep Dogs Fed Uncooked Pizza Dough", 69(1) Australian Veterinary Journal 20 (1990); Thrall, et al., "Ethanol Toxicosis Secondary to Sourdough Ingestion in a Dog", 184(12) Journal of American Veterinary Medical Association 1513 (1984).

The effects of bread on breathalyzers is not just an interesting anecdote.  The significance of these findings should be apparent. First, bread dough tends to stick between the teeth and remain there for extended periods of time, later to be breathed into a breathalyzer; it also absorbs alcohol while between the teeth. Second, although it is not illegal to drive with a .04% blood alcohol level,adding one or two drinks to the bread reading could raise that above the illegal .08% level.

 

 

High Breathalyzer Results: Drinking…or Dieting?

I’ve written in the past about how most so-called "breathalyzers" do not measure alcohol: they actually measure the presence of a molecular group in chemical compounds. Ethyl alcohol (aka ethanol) contains the group, and so when the machine detects its presence (or, more accurately, infrared energy is absorbed by it), it simply assumes that the detected compound must be ethyl alcohol.

Problem: there are thousands of compounds containing the molecular group — of which well over one hundred have been found on the human breath.

Breathing gasoline or paint fumes, for example, or merely absorbing the fumes through the skin, can create false breath test results for days afterwards. And I’ve posted in the past that the problem is particularly acute when the suspect happens to be a diabetic, as diabetics often have high levels of acetone in their breath — a compound which contains the group in its molecular structure.

However, you do not need to be a diabetic to have high levels of acetone. Scientific research has established that acetone can exist in perfectly normal individuals at levels sufficient to cause false high breath-alcohol test readings.  See "Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol", 9 Journal of Analytical Toxicology 246 (1985).

Fasting or radical dieting, such as with the Atkins diet, can also cause significantly elevated acetone. Studies have concluded that fasting, for example, can increase acetone in the body sufficient to obtain breathalyzer readings of .06%.  This is cumulative — that is, the .06% will be added by the machine to any levels actually caused by alcohol or other compounds.  Thus, a true breath alcohol of .03%, for example, would be reported by the machine as .09%. "The Likelihood of Acetone Interference in Breath Alcohol Measurement", 3 Alcohol, Drugs and Driving 1 (1987).  And low-carbohydrate diets have long been associated with high levels of acetone production.

Of course, for many years law enforcement denied that any such problem existed, just as they denied that "mouth alcohol" and radio frequency interference caused false test results — until manufacturers started adding acetone detectors, mouth alcohol detectors and RFI detectors to their machines (none of which, unfortunately, have proven reliable.)

How reliable are breathalyzers? Not very.  See "How Breathalyzers Work — and Why They Don’t" and "Close enough for government work". As I’ve posted in the past, there appears to be a growing trend toward letting officers draw blood themselves at the scene of arrest. Given the reassurances about these machines so often expressed publicly by law enforcement, one has to wonder why they are increasingly turning to the involved process of hypodermic needles, preservatives, anticoagulents, refrigeration and delayed laboratory analysis….
 

High School Wrestling Coach Blows .241% BAC

MADD’s New Focus: Prohibition

 Ok, I guess I’m on another MADD rampage, but the following editorial in the San Francisco Examiner seems to indicate that the tide is turning:

MADD’s New Focus: Prohibition

San Francisco, CA.  July 27 — Mothers Against Drunk Driving (MADD)  is suffering from mission creep. A victim of its own success, the non-profit group is now pursuing Prohibitionist anti-alcohol policies – such as calling for alcohol detectors in all cars – instead of focusing on its original goal of reducing drunk driving deaths.

“The public needs to realize that MADD isn’t the same group it was 20 years ago,” says American Beverage Institute (ABI) Managing Director Sarah Longwell.

 

MADD founder Candy Lightner agrees. The non-profit group she started in 1980 after her daughter was killed by a drunk driver “has become far more neo-prohibitionist than I had ever wanted or envisioned … I didn’t start MADD to deal with alcohol. I started MADD to deal with the issue of drunk driving.”

 

Part of the problem is MADD’s prior success in bringing the issue of drunk driving to the public’s attention.

 

“The biggest problem in reducing drunk driving fatalities now consists of the hard core of alcoholic drivers who repeatedly drive with BAC’s of .15 or higher,” says Dr. David Hanson, professor emeritus at the State University of New York/Potsdam. “But MADD has now decided to go after social drinkers and to eliminate driving after drinking any amount of alcohol beverage. This change appears to reflect the influence of a growing neo-prohibitionist movement within MADD.”

 

The change in focus has been accompanied by a change in the way MADD spends donor funds. The American Institute of Philanthropy recently downgraded MADD to a “D” in its 2010 Charity Guide and Watchdog Report, citing the group’s diminished focus on education and victim services in favor of fundraising and anti-drinking activism.

 

According to the AIP, MADD spent nearly double the average amount on fundraising, leaving just a little more than half of its revenue for programs. In 2008, despite declining revenue, two-thirds of its  budget – almost $30 million – was spent on staff salaries (which increased 56 percent).  Meanwhile, spending on community programs dropped 17 percent. It may be even lower than that, as MADD reportedly counts payments to professional fundraisers as charitable work, claiming they help educate potential donors.

 

Charity Navigator, which rates the effectiveness of various charitable organizations, also gave MADD just one out of four possible stars.

 

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