Life in Prison for a DUI?

June 11, 2011 by Lawrence Taylor  
Filed under DUI

In today’s DUI double standard department…

Waco Man Gets Life Sentence for Driving Drunk

Waco, TX.  June 10 — A man has been sentenced to life in prison after being convicted of drunken driving — his ninth such charge since 1984.

Defense attorney Melanie Walker had told jurors no one was seriously injured in last year’s rollover accident and her client suffers from alcoholism.

However, prosecutor Lauren McLeod said alcoholism is no excuse for criminal behavior.

The Waco Tribune-Herald reports that the 52-year-old Sneed and his wife both testified that she was driving. Karroll Sneed told jurors she fled over fears of being jailed on misdemeanor warrants. Sneed said he took the blame out of concern for his wife, who had recently suffered a stroke.

Life in prison for a DUI?  Rape gets 15 years, 2nd degree murder 25.  Just an aberration, right?  Wrong.  See, for example, Third DUI = Life in Prison (Mississippi, alcoholic with 2 priors), Another Life Sentence for Drunk Driving (Texas, alcoholic with 9 priors), 99 Years for Drunk Driving (Texas, alcoholic with 7 priors). 

One of the premier DUI attorneys in the country, Troy McKinney of Houston, made an Open Records Act demand on the Texas Department of Criminal Justice, asking:  How many Texans are serving sentences of 60 years to life in prison for drunk driving? Not for drunk driving resulting in injury or death — just for drunk driving (or driving over .08%). The response from the Department:

21 to 25 years    125 
26 to 30 years     39 
31 to 40 years     55 
41 to 59 years     16

And finally:

60 to 98 years     23 
99 years 6 Life     13

Repeat: These are sentences just for drunk driving or driving over .08% — not for DWI causing death or serious injury. To trigger the longer sentences, the DWI was at least the offender’s fourth offense.

It would be a fairly safe assumption that these prisoners are alcoholics. In other words, life in prison for having a genetically-predisposed disease and being unable to control it…..without help.

So, what if they got help? What does it cost to keep a citizen in prison for the rest of his life? For even one year? And what does it cost to offer that person rehabilitative therapy? Even, perhaps, to involuntarily commit him to a facility for treatment of the disease?

Justice and humanity aside, do the math….

For a more effective, inexpensive and humane approach to dealing with drunk drivers who are suffering from alcoholism, see Time for a Change.


Going to Jail for Not Giving Evidence Against Yourself

June 9, 2011 by Lawrence Taylor  
Filed under DUI

Most Americans believe that there is a constitutional right against being forced to provide evidence against yourself.  And certainly, most Americans could not imagine that a citizen arrested for a criminal offense could actually be charged with a separate criminal offense of not giving possibly incriminating evidence — in other words, if you don’t provide evidence against yourself, you will be convicted of refusing to do so and be thrown in jail.  Not in the U.S., right?

Wrong.  But then most Americans aren’t familiar with "the DUI Exception to the Constitution".

Most people don’t realize it, but it is a criminal offense in a growing number of states for a citizen arrested for drunk driving to refuse to give a breath or blood sample; in most other states, a refusal increases the penalty for the DUI itself.  After the DUI arrest, the police will tell the suspect to submit to a blood or breath test; if he refuses, he will be charged with drunk driving — and with refusing to submit to testing.  And he can be convicted and sentenced for both.  In some states, the penalty for refusing is the same as for the DUI offense itself.

Wait a minute….Is it a criminal offense to refuse to provide semen in a rape case?  Nope.  Can you be thrown in jail for not providing a hair sample for DNA analysis in a murder case?  Uh-uh.  Then why only in drunk driving cases?  Ask MADD — and the politicians who cater to them.

The New Jersey Supreme Court addressed this issue a couple of weeks ago:

Judge: Failure to Provide Proper DUI Breath Test Akin to Refusal 

Gloucester Co., NJ.  May 27, 2011 – The failure of a motorist suspected of drunk driving failing to provide proper breath samples — of sufficient volume and length — constitutes a refusal that enables police to file an additional charge, the state Supreme Court ruled Thursday…

Woolwich Sgt. Joseph Morgan pulled over a motorist on Nov. 29, 2007 for allegedly swerving between the east and westbound lanes of a road within the township’s borders. The motorist cited a physical handicap that would prevent him from performing field sobriety tests.

At the Woolwich station, he consented to provide breath tests that would eventually be administered by a Logan Township officer. The motorist provided samples of 1.2 liters over 4.9 seconds and 1.2 liters over 3.3 seconds, Stern noted in his opinion. The officer needed a minimum 1.5 liter sample.

So unlike with any other criminal offense, a DUI suspect can be charged with drunk driving….and with refusing to give the officer possibly incriminating evidence.

It gets worse.

The various breath machines all require the suspect to breath through a narrow breath tube hard enough to lift an inner piston, permitting the sample to enter the sample chamber. The reason is that blowing hard forces the suspect to produce the air from the deepest part of his lungs (alveolar air) — air with the highest percentage of alcohol; the harder the blow, the higher the blood alcohol level. When there is insufficient pressure from the suspect to activate the sample-capturing mechanism, the machine will signal that the test is invalid. At that point, the officer assumes that the suspect is purposely not breathing hard enough in order to avoid incrimination, so he discontinues the test and reports it as a refusal.

But how does the officer know that the reason for the failure to produce a breath sample is intentional? He doesn’t, of course; being a police officer, he merely assumes it. But the amount of pressure required to lift the valve can be misadjusted, and many of them begin sticking after constant use. And the tube can be too narrow; the manufacturers of one breath machine, the Intoxilyzer 5000, had to enlargen the breath tube in later models because of large numbers of complaints.

Many individuals, particularly the elderly and cigarette smokers, simply do not have the lung power. And then there are the millions suffering from emphysema or asthma.

Researchers in one scientific study of asthmatics found that only 2 of 51 subjects were able to breathe hard enough to activate a breathalyzer. P.J. Gomme et al., “Study into the Ability of Patients with Impaired Lung Function to Use Breath Alcohol Testing Devices”, 31 Medical Science and Law 221 (1991). In other words, 49 of them would have been prosecuted and punished for “refusing” a breath test.

The law, in its wisdom and majesty, continues to punish citizens for not breathing hard enough to activate these machines — with little or no evidence as to the reasons why. And as is common in DUI cases, the reasons are presumed (see “Whatever Happened to the Presumption of Innocence?”) — and, of course, who is going to believe the defendant’s denial?

Welcome to the insanity of MADD’s "war on drunk driving".

(Thanks to Dr. Ronald Henson.)

Domestic Violence and Child Custody

June 7, 2011 by Maricopa County Court  
Filed under Criminal Court, DUI

Becoming a witness of domestic violence and growing up in such a volatile and disturbing family environment can have a dreadful impact on the psychological development of a child. Hence, the issue of child custody in situations that involve domestic violence is one of great important.

The US Department of Justice gives great importance towards protecting the rights of children who are exposed to domestic violence. Domestic violence in this context does not necessarily mean the child has actually seen physical abuse or witnessed domestic violence. It may encompass circumstances wherein the child is simply present in the home during an incident of domestic violence. Such type of abuse is commonly referred to as “secondary abuse.” In a California case known as In re Heather A., 60 Cal. Rptr. 2d 315, 322 (Ct. App. 1996) the court found that two children were exposed to domestic violence by virtue of being in the same home as their mother ho was physically abused by her boyfriend, even though the children were in another part of the house and did not actually witness the abuse. The two children were removed from the home and made dependents of the court upon a finding that the children were victims of secondary abuse.

Parents experiencing domestic violence within their family home are at risk of losing custody of their children. These children may be declared as dependants of the court, removed from the home, and taken into protective custody of Department of Social services. There are several means by which parents subjected to domestic violence can prevent losing custody of their children. The most important of these is to bring an end to such a violent relationship.

If you are involved in a relationship wherein domestic violence is present and children are involved, you would do well to consult an attorney in your jurisdiction to help you learn where you stand legally on the matter and what options are available to help protect you and your children.

© 2007 Child Custody Coach

Child Custody Coach supplies information, online materials, and coaching services to parents in the field of child custody, namely, divorce, child custody and visitation, child custody evaluations, 730 evaluations, parenting techniques, and all issues related to child custody and divorce. How to Win Child Custody – Proven Strategies that can Win You Custody and Save You Thousands in Attorney Costs! is a unique child custody strategy guide provided as an E-Book for immediate access written by Steven Carlson who is known nationally as The Custody Coach. Custody Match is an online consumer and family law attorney matching service find the right family law attorney, divorce, attorney, or child custody lawyer in your area.

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DUI BLOG 2011-06-06 08:22:28

June 6, 2011 by Lawrence Taylor  
Filed under DUI

Ok, I admit it: I’ve finally been dragged kicking and screaming into the Age of Facebook, profile (Lawrence E. Taylor) and all….

Recording a Cop vs Rape: Which Has Longer Prison Sentence?

June 4, 2011 by Lawrence Taylor  
Filed under DUI

In Illinois, they carry the same sentence: 15 years in prison.   That’s right: using your cell phone to record cops beating up a citizen, for example, can land you in prison for 15 years (although it’s perfectly legal for the cop to record you).

An eye-opening news video entitled "Valley Man Faces 75 Years in Prison for Recording Law Enforcement" documents the current plight of Illinois citizen Michael Allison.  Allison is facing 75 years in prison for five counts of openly audio taping public officials – a sentence usually reserved for murderers.  When he recently sued police for discriminatory law enforcement, the judge at trial refused to provide a court reporter.  Understandably wanting a record of the proceedings, including the cops’ testimony, Allison told the judge he would record them himself.  He was later arrested and the recording confiscated. 

These laws are not limited to Illinois.  Designed to protect cops and public officials from public scrutiny, they exist in many states across the country.  And one has to question why they exist at all in a supposedly free and open society — much less carrying sentences usually reserved for murderers and rapists.  Are cops and officials that afraid of having their conduct exposed to the light?

I wonder if taping a cop in China or North Korea is punished as severely as in Illinois – if at all?

(Thanks to David Baker.)

Laws Proposed to Regulate Police Abuse of DUI Roadblocks

May 26, 2011 by Lawrence Taylor  
Filed under DUI

As readers of this blog know, DUI roadblocks (or to use the more politically correct term, "sobriety checkpoints") were found by the U.S. Supreme Court in a 5-4 decision to be constitutionally permissible.  See Are DUI Roadblocks Unconstitutional?  Although Chief Justice Rehnquist admitted that it was a violation of citizens’ Fourth Amendment rights, he said it was simply a "minor intrusion" and outweighed by government’s interest in reducing drunk driving.  However, the Court said, the "checkpoints" could only be used to detect and apprehend drunk drivers; they could not be used as a pretext for any other purpose.  This was later confirmed by the Court in City of Indianapolis v. Edmond, where roadblocks were being used to find drugs.

Despite the Edmond decision, local governments and law enforcement have increasingly set up roadblocks on the pretext of apprehending drunk drivers — but in reality using them as a lucrative revenue source to give citations and impound cars.  It is common to see "sobriety checkpoints" today which result in perhaps 1 or 2 DUI arrests — and 100 citations and impounds for lack of driver’s licenses, car registration, equipment violations, etc.  See, for example, DUI Roadblocks for Fun and Profit and The New "Highway Robbery": Money-Making DUI Roadblocks Growing.  

However, some citizens are beginning to object to this abuse of authority…

Santa Rosa Lawmaker Seeks to Regulate DUI Checkpoints

Sacramento, CA.  May 24 – A week after Nora Ramos gave birth by Caesarean section, she found herself walking five miles home with her husband and four children.
On their way from the hospital in Modesto, the family had been stopped at a DUI checkpoint. Ramos’ husband, who had been driving because his wife was dizzy from morphine, did not have a license, and police impounded their car.

That was four years ago. Today, Ramos is joining civil liberties groups and those advocating for minority rights, who say dozens of sobriety checkpoints throughout California have been used to generate impoundment fees rather than arrest drunken drivers.

They support a proposed law from Democratic state Assemblyman Michael Allen that aims to restrict the inspections to their intended purpose of stopping drunken driving.

"Yes, I understand, if they are drunk drivers, grab them, throw them in jail," said Ramos, who is 33. "But what about people who have nothing to do with that?"

Allen, from Santa Rosa, said cities and police have strayed from the original mission of checkpoints, increasingly using them to seize vehicles.
Impoundments increased 53 percent statewide between 2007 and 2009, according to his bill, AB1389. It says that in many cities, the ratio of impoundments to DUI arrests is 20 to 1…

The problem, according to Allen, is that many drivers and their families end up stranded once their vehicles are hauled off. Ultimately, they also forfeit the vehicles because they can’t afford the impoundment fees, which can be thousands of dollars.

That includes Ramos, who says her husband lost his construction job along with the family car.

"The idea that people lose their livelihoods because they can’t have family come help them doesn’t make sense to me," Allen said. "It seems cruel and heartless."

Zanipatin’s group, which is among more than 20 that officially back Allen’s bill, said cities and police misuse the checkpoints to make money.

"It’s a way for them to generate revenue, easy revenue that goes unchallenged," Zanipatin said…

Allen’s bill also would codify another court ruling, this one in California. Decided in 1987, the state Supreme Court case requires officers to conduct their checkpoints on roads that already have a high rate of DUI arrests or accidents, and then give advance notice of the location…

Hmmmm….I’m trying to imagine politicians giving up these roadblock "cash cows".

Top DUI News Stories of the Day

May 25, 2011 by Angie  
Filed under DUI

Victims and heroes honored, plus Jalen Rose pleads guilty.

Blood-Alcohol Testing Questioned in Michigan

May 22, 2011 by Lawrence Taylor  
Filed under DUI

As my recent posts have indicated, there is a growing awareness in many states of the unreliability of blood-alcohol testing — and a growing willingness to shutdown testing statewide.  Now this from Michigan…

DUI Blood Cases Could Face Scrutiny After Judge’s Ruling

Lansing, MI.  May 11 – Blood tests in drunken-driving cases statewide will face more scrutiny, experts say, after a Mason County judge ruled that the state crime lab’s test results "are not reliable."

In a ruling signed Friday, 79th District Court Judge Peter Wadel refused to admit blood-alcohol results in a drunken-driving case. He said the crime lab – which conducts blood and other forensic tests in cases from around the state – does not report an error rate, or margin of error, along with blood-alcohol results.

Police routinely report a single number for blood-alcohol content in drunken-driving cases. But East Lansing attorney Mike Nichols, who is handling the case in Mason County – which includes the city of Ludington along Lake Michigan – said there are no absolutes in science.

"Everyone says a blood test is so accurate. Well, it’s not," Nichols said. "That’s what this judge has ruled."

Not including a range of possible results, Nichols said, ignores the uncertainties in the collection, handling, analysis and reporting process.

A blood-alcohol level of 0.08 percent is the threshold in Michigan for being charged with drunken driving. But Nichols said when someone’s blood-alcohol is determined to be 0.10, for example, it could actually be higher – or lower – than 0.08.

The Mason County case is being watched by attorneys across Michigan and the country.

Washington-based attorney Ted Vosk, who consults with defense attorneys and prosecutors about the importance of calculating error rates, praised Wadel’s ruling.

If police and prosecutors don’t acknowledge scientific uncertainties, Vosk said, innocent people will be convicted and guilty people will go free.

"And we won’t know which are which," he said…

Is it possible that law enforcement and the courts will finally stop ignoring science in DUI cases?

(Thanks to John Kruzelock.)

Have you Been Arrested for a DUI in Vermont?

May 16, 2011 by RebeccaK  
Filed under DUI

A faulty breath machine in VT can affect a lot of DUI cases.

Another Widespread Failure of Breathalyzers

May 16, 2011 by Lawrence Taylor  
Filed under DUI

The unavoidable fact is that breath-alcohol testing machines used by law enforcement are unreliable and inaccurate.   See, for example, How Breathalyzers Work (and Why They Don’t)Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.   In recent months, there seems to be an increasing recognition of this reality — and increasing instances of massive shut-downs of these machines.  Along with this is the uncomfortable reality of thousands of American citizens who have been (and are continuing to be) convicted of drunk driving based upon false evidence. 

A few examples from past posts:

400 Wrongly Convicted in Washington: Faulty Breathalyzers (last year)
Attorney General Finds Widespread Breathalyzer Inaccuracies; Police Shut Down All Machines (two months ago)
Inaccurate Breathalyzers Cast Doubt on 1,147 DUI Cases in Philadelphia (one month ago)
Defective Breathalyzers Could Lead to Tossing Out Hundreds of DUI Convictions (2 weeks ago)

And in  yesterday’s news….

Vermont’s DUI Breath Testing Program Under Fire

Montpelier, VT.  May 15 – A mistake in the software set-up on a breath analysis machine and whistleblowers’ complaints about unethical lab work threaten dozens of drunken-driving prosecutions in Vermont.

At issue are breath tests performed by a DataMaster DMT machine at a Vermont State Police barracks that authorities say wasn’t set up properly. Amid a broadening inquiry by two defense attorneys, dozens of criminal convictions could be reopened and a handful of civil license suspensions are being overturned.

Hundreds of other cases since 2008 could be in jeopardy because of problems with the state Department of Health’s maintenance of the machines that are used at police stations and barracks to test drivers arrested for suspected drunken driving…

(David) Sleigh and fellow defense attorney Frank Twarog obtained copies of complaint letters written last year by two Department of Health whistleblowers who said sloppy and unethical work by a lab colleague had been reported but unaddressed.

First reported on by the Burlington weekly Seven Days, the letters written by chemists Amanda Bolduc and Darcy Richardson were obtained by The Associated Press through a Public Records Act request.

The Health Department withheld from The AP 16 emails dealing with the DataMaster issue. Assistant Attorney General Margaret Vincent asserted attorney-client privilege or "attorney work product" as the reason.

The whistleblowers’ complaints allege that laboratory technician Steven Harnois tampered with DataMaster machines to get them to pass routine performance checks and kept records so badly that it compromised the chemists’ ability to testify in court about readings.

"I have concerns in his level of integrity and ethics," Bolduc said. "These concerns have been brought to the attention of the program chief on numerous occasions, and still the problem exists," she wrote. Whenever she raised concerns, her boss retaliated against her for it, she said.

From Wikipedia’s definition of "pseudoscience":  

Pseudoscience is a claim, belief, or practice which is presented as scientific, but which does not adhere to a valid scientific method, lacks supporting evidence or plausibility, cannot be reliably tested, or otherwise lacks scientific status.[1] Pseudoscience is often characterized by the use of vague, exaggerated or unprovable claims, an over-reliance on confirmation rather than rigorous attempts at refutation, a lack of openness to evaluation by other experts, and a general absence of systematic processes to rationally develop theories.

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