DUI BLOG

As readers here know, I’ve posted extensively in recent months about the need to know the secret software controlling various breath-testing machines – and the growing number of courts across the country that are ordering the manufacturers to divulge this critical information.  See, for example, Judge Orders Secrets of Breath Machine Revealed, Judge: Divulge Breathalyzer Code…or Else, and Second Manufacturer Must Reveal  Breathalyzer Secrets. 

The manufacturers of these machines continue to thumb their noses at the courts, unwilling to let anyone see what is inside these "black boxes" that act as judge and jury in DUI cases.  See Breathalyzer Manufacturer Thumbs Nose at Courts, Secret Breathalyzer Software Still Secret .

In what may be a growing trend, the State of Ohio announced yesterday that it is cancelling massive purchases of one of the machines, the popular Intoxilyzer 8000, citing the questions of reliability raised in the court challenges in other states.

State Reverses $6.4 Million Purchase Order for Controversial Drunken-Driving Testing Machine

Columbus, OH.  Dec. 1  -  The Ohio Controlling Board on Monday pulled a $6.4 million order it approved just two weeks ago for the purchase of a controversial drunken-driving testing machine.

The board unanimously agreed to reconsider releasing funds to purchase 700 breath-testing machines from a Kentucky company after The Plain Dealer reported that the accuracy of the Intoxilyzer 8000 is being challenged in courts in several states…

The machine’s accuracy is being challenged in Florida, Arizona and Minnesota where thousands of cases have either been delayed or dismissed because CMI has refused court orders to release the machines’ source code, or software.

Defense attorneys have said they need the codes to show that the machines are flawed and can easily be manipulated. And while CMI has promised to release the software to attorneys here if the machines came under litigation, attorneys say the confidential agreement they would have to abide by would make the information useless.

Furthermore, it might be a moot point. (Public Safety Department counsel Joshua) Engel predicted "we will not see any lawsuits in Ohio" because the Ohio Supreme Court established in an earlier ruling that the accuracy of drunken driving testing machines could not be brought up as a defense.

It looks like Ohio is asking themselves the same question I’ve been asking:  "What are they hiding?".  Oh, and let me repeat that last paragraph in the news story:

(Public Safety Department counsel Joshua) Engel predicted "we will not see any lawsuits in Ohio" because the Ohio Supreme Court established in an earlier ruling that the accuracy of drunken driving testing machines could not be brought up as a defense.

What?  An American citizen accused of driving over .08% is not permitted to question the accuracy of the machine — the only blood-alcohol evidence in the case?

Yep.  Ohio is the only state in the country saying that if a breath machine is approved for use by the State, it’s accuracy cannot be challenged in court.  See the Ohio Supreme Court case of State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303 (1984). 

The DUI Exception to the Constitution lives on….

As everyone knows, in our federal system of government most laws are enacted and enforced by the individual states.  Burglary, murder, rape, larceny — all are defined, enforced and prosecuted by the state or local governments.  Until recently…

The laws, evidence and procedures concerning drunk driving are increasingly coming under the control of the federal government.  Over recent years, for example, the Feds have used the threat of withholding highway funds from states to force them to pass legislation championed by MADD.  Thus, for example,  South Carolina recently became the last state to cave in and adopt per se laws – driving with .08% blood-alcohol, even if sober.  All states have also now adopted Automatic License Suspension (ALS) laws, the immediate confiscation by police of driver’s licenses of those suspected – not convicted – of having over .08%.  Again under federal/MADD pressure, almost all have passed zero tolerance laws lowering the blood-alcohol level to .01 or .02% for drivers under 21.  And so on…

Even the evidence in DUI cases is increasingly being dictated by the federal government.  Federal standardized field sobriety tests are being adopted across the country, and breath testing machines are now selected by state agencies from a list of federally-approved devices.

Eventually, as I’ve predicted in past posts (The Future of DUI), the federal government will simply federalize all state drunk driving laws, penalties and procedures — but, without the necessary law enforcement, court and jail facilities, they will still require the state to enforce those laws. 

Consider a couple of news stories just within the past five days:

State DUI Policies Criticized

Seattle, WA.  Nov. 24  –  As Thanksgiving approaches, state law enforcement is preparing for a less-than-loved holiday tradition — drunken driving. But, according to the National Transportation Safety Board, the state’s laws aren’t up to the challenge.

An NTSB review puts Washington among the 25 states that have not made changes to combat drunken driving that the federal safety board has recommended.

Acting board Chairman Mark Rosenker was expected to chastise the states during a meeting Tuesday morning in Washington, D.C.

Chief among the NTSB complaints against Washington is the state’s reluctance to allow police to conduct sobriety checkpoints.

Washington’s checkpoint law was struck down as unconstitutional in the late 1980s, and the state does not use them…

The NTSB also faulted the state for allowing plea bargains for first-time DUI defendants, not impounding cars driven by all drunken-driving suspects and failing to create a statewide system of DUI courts aimed at repeat offenders.

And…

NTSB: R.I. Not Doing Enough to Fight Drunken Driving

Providence, RI.  Nov. 28  – Federal transportation officials say Rhode Island’s efforts to curb drunken driving are falling short.

The National Transportation Safety Board this week said that Rhode Island is one of the bottom three states in the nation when it comes to following agency recommendations to address drunken driving accidents and deaths.

The safety board developed 11 recommendations in 2000 for how states could reduce alcohol-related crashes and fatalities. Rhode Island has enacted just two of them. Only Michigan and Montana have enacted so few.

Gabrielle Abbate, executive director of the state chapter of Mothers Against Drunk Driving, said Rhode Island lacks legislative leadership when it comes to cracking down on drunken driving.

In the past, the federal government left the states to enact criminal laws, limiting its own jursidiction to those involving  federal interests such as counterfeiting, espionage and civil rights.  So, why the gradual takeover of DUI offenses?  

MADD, with annual revenues of about $52 million, continues to apply media and lobbying pressure — but has moved beyond their state legislatures to Congress and federal agencies.  And beaurocrats and elected representatives in Washington are just as frightened of MADD’s witch-hunt as those in Sacramento or Albany.

A few months ago I posted about a staged scene designed by MADD in which police officers came to a high school and falsely told students in 20 classrooms that one of their classmates had been killed in a drunk driving accident.  Before they were told the truth hours later, many of the kids "were driven to tears – a few to near hysterics".  See MADD’s Latest Weapon.  The newest version of this tactic:

Staged DUI Arrest

Fresno, CA.  Nov. 20 – A staged drunk driving arrest is getting mixed reaction at a local high school. Administrators at San Joaquin Memorial working with Fresno police set up the fake arrest to show kids the dangers of drinking and driving.

This morning juniors and seniors were told the truth about the alleged drunk driving incident…That it was all a hoax. The principal says he’s not apologizing for the education the kids got about drinking and driving.

One student caught the fake drunk driving arrest on tape. Standout Water Polo player Kevin Van Gundy getting arrested in front of the school at lunch time Wednesday for being under the influence. Van Gundy says his friends were both relieved and mad Thursday morning when they found out the truth.

The real story was revealed during an assembly this morning, when Van Gundy faced a Fresno Superior Court Judge, just like he would have if it were real. Not even the teachers knew the truth until the principal sent out this email late Wednesday explaining the DUI lesson.

Administrators kept the secret overnight on purpose, so students would go home and tell their parents…

One parent who contacted action news and didn’t want to be identified said quote "I think the desired effect was not achieved. Parents and students were left devastated for 24 hours. It was traumatic and shocking."

Police Chief Jerry Dyer says sometimes a shock is what students need…

Van Gundy isn’t sure he’d participate again. The exceptional student who carries a 4.3 GPA says many students were really shaken up and he feels bad. "I think it stung a little bit more than it had to. I think keeping the students in the dark over night for so long just kinda leaves a bitter taste in their mouth towards the whole situation as opposed to being able to listen to the message they were a little bit angry at the administration or at me or at the program that it was just a little bit too harsh for some of them."

The principal says this issue is very personal to him, since his brother was killed in a drunk driving accident years ago… 

I’m sure the students learned a lesson.  What do you think it was?

As any experienced criminal attorney knows, truth, justice and fairness can be rare commodities in our courts when dealing with a drunk driving offense. This has become such a common phenomena that it has acquired a label: "The DUI exception to the Constitution". When it comes to cases involving driving under the influence of alcohol or drugs, there seems to be a distinct bias in favor of "streamlining" procedures and facilitating convictions.

Cynics might suggest that this may have something to do with political considerations — with the desire of some politicians, judges and prosecutors to get reelected. We’ll talk about that in another post. In the meantime, let’s take a look at an example of what kind of thinking goes on in the judicial mind when dealing with a DUI case. In fact, let’s go to the highest court of the most populated state in the country: the Supreme Court of California.

In People v. Bransford, the Supreme Court was confronted with a defendant who was challenging his .08% DUI conviction on the grounds that he was not permitted to offer scientific evidence to the jury. Specifically, he was not permitted to offer the testimony of recognized experts that the breath machine’s computer was programmed to assume that there were 2100 parts of alcohol in his blood for every 1 part it measured in his breath.

He was also prevented by the trial judge from offering further evidence that this 2100:1 ratio was only an average — and that the actual ratio varied widely from person to person, and within one person from moment to moment. (If, for example, a suspect’s ratio had been 1300:1 at the time he blew a .10% on the machine, his true blood-alcohol would have actually been .06% — that is, he would have been innocent.)

The Supreme Court of California affirmed the conviction, ruling that such scientific facts are irrelevant: the law was written in a way that concerned the amount of alcohol in the blood "as measured on the breath". In a display of either twisted logic or ignorance of the scientific facts involved, the Court simply admitted that the crime consisted of the amount of alcohol in the blood — but only as measured on the breath. In other words, although the crime is having .08% alcohol in the blood, you can’t offer evidence about the amount of alcohol actually in the blood! An amazing decision…

More interesting, perhaps, is the language in the opinion — an opinion which gives us a window into the justices’ minds. In what must have been a complete failure to appreciate the significance of what they were writing, the Court justified its ruling in a rather frank — and incredible — admission of its hidden agenda:

"It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges." People v. Bransford, 8 Cal.4th 894 (1994).

In other words, barring an accused from defending himself with scientific truth serves justice by making it easier to get convictions!

Are all judges oblivious to the truth? Not entirely. One judge, Justice Joyce Kennard, dissented from the majority opinion. She wrote in a separate opinion: "The majority…has on its own created the new crime of driving with alcohol in one’s breath."

So what happens when a cop stops a driver for DUI — and the driver’s a cop? 

Deputy, Officer Argue Over DUI Stop

Ponce cop heard trying to help county sergeant

Ponce Inlet, FL.  Nov. 8  –   A Ponce Inlet police officer who pulled over an off-duty Volusia County sheriff’s deputy on suspicion of drunken driving last weekend was apparently trying to help his fellow law enforcement officer, an audiotape of the traffic stop reveals.

"(Sheriff’s) Sgt. Greg Miles is going to come and get you," Officer Chris Selander is heard saying on the tape he made early Sunday morning. "I’m not going to arrest you. You can relax. You know you’ve been drinking probably a little too much. I saw the alcohol in the car. I can smell it."

A short while later on the 45-minute tape, Selander goes on to say, "You’re a sergeant now. You get to keep your job, and that’s your career."

But the deputy, Sgt. Kenneth Vickery, still seemed intent on arguing he hadn’t done anything wrong and repeatedly raised Selander’s ire as the pair stood in the 4300 block of South Atlantic Avenue. Vickery, who works in the sheriff’s training division, insisted he hadn’t crossed any lines on the road, hadn’t swerved and wasn’t speeding.

"You ran off the road, and, now, you’re basically calling me a liar," said Selander, a patrol officer. "I didn’t have to do any of this. You could be sitting in that jail right now. You still can."…

The conversation continued to switch from calm to arguing.

At one heated moment, Selander said, "You’ll be lucky if you have a job after this. Now, sign the ticket, keep your mouth shut and go home."

At another angry moment Selander said, "I think you want to go to jail. I’m tired of your attitude. . . . You don’t even act like a police officer. You don’t even act like a sergeant."…

When all was said and done, Vickery was cited only for an improper lane change.

If it were you driving that car, you’d be facing drunk driving charges — and resisting arrest…after you were released from the hospital.

Last week I mentioned how manufacturers across the country were refusing to turn over the critical software code in their breath-testing machines.  See What Are Breathalyzer Manufacturers Hiding?  Just how far are they willing to go to keep us from looking inside these secret black boxes that determine guilt or innocence?  A follow-up story in today’s news:

Thousands of Tucson-Area DUI Cases May Get the Boot

Intoxilyzer 8000 May Be Ruled Unreliable

Tucson, AZ.  Nov. 9  – A dozen years ago, 3,000 drunken-driving prosecutions in Tucson were dismissed in one day – about 5,000 cases within a few months – because the breath-test device that said the drivers were drunk was deemed unreliable.

Those numbers could easily be surpassed if one of the current alcohol detectors in Arizona, the Intoxilyzer 8000, is found to be unreliable, a leading driving under the influence defense attorney said.

"This is going to be huge," said Tucson lawyer James Nesci, because the current machine is widely used statewide as opposed to the older device, which was used in Tucson and at a smaller agency…

Despite court orders across the country, CMI has declined to divulge the code, which defense attorneys say will show that the device is error-prone. The company has racked up more than $1 million in fines by refusing to comply with a similar Florida court order, records show.

CMI President Toby Hall didn’t return phone calls for comment. When Bernini first ordered CMI to release the code, Nesci said a process server couldn’t get Hall to accept the court order.

Last month, Bernini told prosecutors to get the source code from CMI.

Deputy County Attorney Robin Schwartz told Bernini that she didn’t think the state could force CMI to reveal the code.

Bernini also set a Nov. 24 hearing for Hall to appear and explain why she shouldn’t hold him and CMI in contempt for refusing to comply with her orders…

Recent events echo those in the mid-1990s when defense attorneys challenged the integrity of the RBT IV breath test machine, manufactured by Intoximeters Inc., based in St. Louis. Prosecutors eventually agreed that the device was faulty, which led to 3,000 cases being dismissed at once in 1997 and the total number thrown out about 5,000, Nesci said.

What are they so afraid of?  Could it be that inside the black box is…junk?
 

Some police agencies around the country use videotapes as part of their drunk driving investigations.  The vast majority, however, do not — despite their low cost, ease of use and invaluable evidence as to driving patterns, physical symptoms, slurred speech, poor balance, incriminating statements and performance on "field sobriety tests".

Why don’t they use them?  And why, when they do, do they so often get lost or erased?  See my post Why Do Police Erase Videotapes?

Local Attorney Says All D.U.I. Arrests Should Be Videotaped

KUTV News, Utah.  Oct. 23  - Many Utah police departments videotape suspected drunk drivers.  The Highway Patrol has most of the dashboard cameras in Utah.  Attorney Jason Schatz wants to see more videotaping for the sake of his clients.

 “It’s only fair to those people if the technology is available”, he says.  Schatz defends suspected drunk drivers and says often, police video is valuable evidence in court, challenging officers’ written reports.  

 “You look at the police report and you’d think this person was falling down drunk, then you see the tape and you say ‘Wait a minute, that doesn’t look the way it was described on paper”. 

Schatz says he wants Utah to adopt mandatory videotaping like the State of South Carolina.  He hopes to find a local lawmaker who will take the issue to Capitol Hill.

Forgive my cynicism, but I’m naturally suspicious of prosecutors who say they would rather spend money on charitable causes than on more trustworthy evidence.

Well, I’ve posted on drunk driving arrests involving horses, lawn mowers, wheelchairs, walking a bicycle – even playing with a foot-high toy bike, so maybe this will come as no surprise….

Zamboni Driver Charged with Drunk Driving

Kingsville, Ont.  Nov 1  -  A 34-year-old woman from Kingsville, Ont., has been charged with impaired driving — on a Zamboni.

Provincial police say an off-duty officer spotted the woman driving erratically on the ice resurfacer at Kingsville Arena on Thursday night.  The driver was missing major spots on the ice and bumping into the boards. 

 
Maybe it’s a trend.  See my post two years ago, DUI on Ice, where a New Jersey judge threw out a Zamboni case, ruling that "four-ton ice rink-grooming machines aren’t motor vehicles because they aren’t useable on highways and can’t carry passengers".  Don’t you just hate it when some common sense judge takes all the fun out of MADD’s hysteria?

I’ve posted repeatedly in the past about the continuing refusal of the manufacturers of various breath-testing machines to devulge the secret software used to run them.  The readings of these devices are, of course, critical:  tens of thousands of citizens continue to be accused and convicted based based upon them.

What are they hiding?

The courts in a number of states have ruled that the defense has a right to know whether the code — critical to the accuracy of the machines’ readings — is reliable and accurate. See  Judge Orders Secrets of Breath Machine Revealed, Judge: Divulge Breathalyzer Code…or Else , Secret Breathalyzer Still Secret, Second Manufacturer Must Reveal Secrets. Yet, the corporations manufacturing these highly profitable machines refuse to comply.  In only once case, where the New Jersey Supreme Court ordered the manufacturer of the Alcotest 7110 to turn over the code, experts found the software running the machine to be antiquated, unreliable and inaccurate.  See Secret Breathalyzer Software Finally Revealed.

Judge: Prosecutors Must Get DUI Breath-Test Software Code

Imagine the Presiding Judge of a courthouse telling the other judges, "There have been too many acquittals lately.  I’ve reviewed them and disagree with most of your ’not guilty’ verdicts.  All future acquittals will be submitted to me for review, and if I disagree with them you will be counselled and your fitness to continue serving as a judge will be reviewed."….

When a citizen is booked on suspicion of drunk driving, his driver’s license is immediately suspended by the police if he (1) takes a breath test indicating .08% blood-alcohol or higher, (2) takes a blood test (even though results are unknown until later lab analysis), or (3) he refuses to be tested.  In essence, the cop is the judge, jury and executioner.

But what happened to due process, to fundamental fairness?  Well, the citizen has a right to appeal the suspension by demanding an administrative hearing where he can challenge the DMV’s evidence,  present his own evidence and argue his case.

In California, as in most states, this is done at a hearing conducted by the Department of Motor Vehicles.  As I’ve pointed out in previous posts, however, this "hearing" is anything but a fair and impartial one.   See Due Process and Automatic License Suspensions.  

1. The government agency that is trying to sustain the suspension — the DMV — is the same one conducting the hearing.

2. Hearsay police documents – which cannot be cross-examined – are admissible and commonly make up the Department’s entire case.

3.  If the citizen wants to cross-examine the officer, he has to subpoena him at his own cost (service of the subpoena and the officer’s overtime salary) for the privilege.

4.  The prosecutor is not a real prosecutor, nor even an attorney.  Nor, in most cases, even a college graduate.  He is an employee of the DMV.

5.  The judge is also not a real judge — not even, as in other states, an ALJ (administrative law judge).  In fact, this "judge" is also not an attorney.  Nor a college graduate.  This "judge" is, like the prosecutor, an employee of the DMV with a high school degree.

6.  The "prosecutor" and the "judge" are, in fact, the same person.  That’s right, this supposedly impartial hearing officer is both prosecutor and judge.  He can object to the citizen’s evidence — and then rule on his own objection.  He presents his case — and then decides if he wins or loses.

Amazingly, however, a few of these DMV hearing officers try to do the right thing.  So what happens if some hearing officer starts developing a conscience and makes a few decisions in favor of the citizen? 

The following is an internal memorandum provided to me by a very reliable source which the manager of the California DMV’s San Diego hearing office circulated to his hearing officers yesterday.  (Note: a "set aside" is the term used when a license suspension has been reversed by the hearing officer.) 

From:  [Manager, San Diego Driver Safety Office] 

To:  [names of 14 hearing officers]

Sent: Monday, October 27, 2008  2:12pm

Subject: Set Asides

This is a reminder to place your set asides in the SET ASIDE basket in the file room.  I run a weekly report to confirm that the set asides are being placed in the basket.  Some of you have not been putting the set asides in the bin.

To date, I have reviewed 17 set asides.  The results are as follows:

     – 6 good decisions
     – 4 are questionable — needing review of the [tape] recording to make determination
     – 7 are unwarranted set asides

These results are terrible, in that we have  no rookie hearing officers.  Should you be responsible for any of the 7 unwarranted set asides, your manager will be discussing the case(s) with you, if they haven’t already.

I  will be publishing my findings on each of your cases — good and bad ones — minus the hearing officer name and case info.  Should you wish to discuss any of these cases with me, feel free to do so.

In reading this "smoking gun" memo, ask yourself the following questions:

1.  Why are are the decisions — verdicts — of these administrative judges subject to further review by the DMV’s office manager?  To identify and weed out hearing officers who are not sustaining enough DMV suspensions?

2.  Why is the office manager substituting his own judgment for that of the hearing officer who heard the evidence?

3.  Why are the hearing officers ordered to submit their set aside decisions for review — but not their decisions sustaining the suspension?

4.  Why do supposedly independent judges have "managers"?

5.  How can 11 of 17 decisions in favor of the citizen – a tiny percentage of all cases handled by the San Diego office — be determined "questionable" or "unwarranted"?

6.  Why are the results "terrible, in that we have no rookie hearing officers"?  Because "rookies" don’t yet have the big picture and are actually decidng cases on their merits?

7.  What do you think the clear message of this memo is to all hearing officers who want to keep their high-paying jobs?

This is the supposedly "fair" hearing by an "independent" hearing officer that is given to citizens who have had their licenses taken by police.  And as any DUI attorney will tell you, this same approach is found in   hearing offices statewide.

Welcome to "due process" at the DMV.