DUI Blog: Bad Drunk Driving Laws, False Evidence and a Fading Constitution

[roo_ster]

There are (at least) two big governmental activities that chap my *expletive deleted*ss.

One is the War on Some Drugs.  Another is the War on Drunks.

The reason is that both of these "wars" have caused much collateral damage to our liberties and have used the COTUS as toilet paper.

I am not alone in my POV, it seems.

A fellow named Lawrence Taylor* started:
DUI BLOG: Bad Drunk Driving Laws, False Evidence and a Fading Constitution
http://www.duiblog.com/







* Not the LT from the NFL, although that would have been interesting.

[Tallpine]

They should have incremental levels of DUI based on BAC.

0.10 - 0.15 --> routine ticket like speeding

> 0.15 (+/-?) --> 10 years prison or something like that.

[K Frame]

I favor by the side of the road trial and execution for drunk drivers.

[Gewehr98]

I strongly disagree with the OP.

But then again, I lost an older brother to a drunk driver.

Driving impaired is driving impaired, be it at a .08 BAC, or .15 BAC - either is deadly to innocent persons in the path of the vehicle.

There's no Constitutional right given to strap on several thousand pounds of steel, rubber, and glass, then go kill somebody.

None.  Go see if you can find it enumerated in there, or in the Amendments. 

IOW, your Constitutional rights of Life, Liberty, and the Pursuit of Happiness end where mine begin.

If your happiness gets me killed, then it ain't a right. 

Doesn't mean you can't drink.

Doesn't mean you can't drive.

It does mean, however, that you cannot drive impaired, and because everybody's body chemistry and tolerance to ETOH is different, they've set the BAC limit at .08 in most of the states.   

I know, it's an arbitrary thing, and I'm sure the knee-jerk gun law analogy will be coming in this thread forthwith.

Regardless, some people think they can hold their liquor and get behind the wheel.  If it weren't for them, we wouldn't be having this discussion now, would we?   :|

[roo_ster]

I don't especially care for recreational drug users, drunks, or those who drive while drunk.  Matter of fact, I make it a point to not associate with them. 

I do care about the damage done to the COTUS in the zeal to go after them.

There's no Constitutional right given to strap on several thousand pounds of steel, rubber, and glass, then go kill somebody.

That is not what I am referring to.  I am referring to:
1. Roadside checkpoints
2. Refusal to preserve (possibly) exculpatory evidence for later examination
3. No-knocks to preserve damning evidence
(Interesting: the increased risk to innocent parties, guilty parties, and LEOs to preserve damning evidence is acceptable.  The zero-risk preservation of breathalyzer evidence to possibly exonerate a citizen is not worth the while.)
4. Right to jury trial eroded
5. Gutting federalism
6. I could go on...

None of my reasons have to do with irresponsible citizens, but with the trampling of the COTUS while using the WoSD and WoDUI as pretexts.

Who Cares About Drunks?
Posted by Lawrence Taylor on September 17th, 2008

For many years now I’ve written and lectured extensively on drunk driving litigation – on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing. In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases.

So who cares about drunk drivers and their constitutional rights?

You should care. The importance of what is happening in DUI law and procedures can be summarized in one word: precedent.

We are a nation of laws, more specifically, the common law inherited from the British legal system. Unlike most nations, which use some version of the French civil law where laws are found in codes, we look to the precedent of judicial decisions interpreting statutory law. When a court looks at the facts in a specific case, it applies not only statutes but decisions in appellate court cases to determine what the law is. The genius of this common law system of precedent is its flexibility; its flaw is what many call “judicial legislation”.

The flaw becomes particularly noticeable when dealing with politically unpopular subjects. And few topics are as politically “incorrect” as drunk driving. Judges are, after all, politically sensitive animals who want to be reelected. Put another way, it is very easy to rule in favor of the prosecution in DUI cases — particularly when powerful pressure groups like Mothers Against Drunk Driving (annual revenues of over $47 million) are so vocal in elections and in legislatures. There are few advocates for the accused or the Constitution during election campaigns.

This judicial attitude is not limited to judges considering re-election. A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights. To mention a few examples:

Michigan v. Sitz. The Court held that sobriety roadblocks were permissible — despite the fact that there is no exception in the Fourth Amendment for stopping citizens without reasonable suspicion.

South Dakota v. Neville. The Fifth Amendment right against self-incrimination was held inapplicable in drunk driving cases (refusing to submit to testing).

Blanton v. North Las Vegas. Even though punishable by six months in jail, fines and diver’s license suspension, there is no Sixth Amendment right to a jury trial in a drunk driving case.

California v. Trombetta. Although police normally have to save evidence, they do not have to save breath samples in DUI cases (even though it is easy and inexpensive to do so).

So…we have seen a steady flow of appellate decisions at all levels taking away the constitutional rights of those accused of DUI. Again, so what?

Again, precedent: What happens today to a citizen accused of DUI can happen tommorrow to a person accused of any other crime.  If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, has already happened). If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of tax evasion or any other offense.

The danger of precedent in the DUI field is not limited to judicial decisions. Legislatures are also guilty of passing unfair and/or unconstitutional — but politically popular — statutes. We have certainly seen a seemingly unending series of unfair and unconsitutional statutes across the country in recent years: immediate license suspensions at the police station; double jeopardy/punishment (license suspension and criminal prosecution); so-called per se laws (.08% blood-alcohol is illegal, even if sober); presumption of guilt (if .08%, presumed to be under the influence; if .08% when tested, presumed to be .08% when driving); ad nauseum. And having passed such laws relating to DUI, they are less reluctant to do so in other areas as well.

So who cares about DUI?  To paraphrase, “First they came for the drunks, but I was not a drunk so I did not speak up…..”

[grislyatoms]

I'm with jfruser. It's getting out of hand.

http://www.dui.com/dui-library/new-mexico/penalties-fines/state-supreme-court-rules-on-car-seizures-in-new-mexico-dwi-cases

State Supreme Court Rules on Car Seizures in New Mexico DWI Cases
Albuquerque could start seizing cars from motorists not convicted of a crime.

The state Supreme Court refused to hear a legal challenge to a program designed to seize vehicles from motorists arrested for driving while intoxicated in New Mexico. That allowed a trial court ruling to stand, thus ending the legal challenges to a controversial plan.

In 2005 the Albuquerque City Council said wanted to raise $300,000 in annual revenue by seizing vehicles in DWI cases, even before the driver was convicted of a crime. The ACLU filed suit saying that it is not illegal to drink and drive, as long as the motorist’s blood alcohol content remained below the limit for intoxication, and that the Albuquerque ordinance imposed punishment before a driver was found guilty in a court of law. That, they said, could potentially impact all motorists who drink but are not legally intoxicated.

A lower court agreed that the Albuquerque program violated constitutional due process, but said the ACLU suit was too vague and it would not overturn the ordinance simply on the possibility of abuse. The unanimous ruling by the high court echoed that sentiment, saying that, while the issues raised in the ACLU suit are serious and have constitutional ramifications, the question of due process is best addressed by a specific act of enforcement of the ordinance. It said if “the city does, in fact, seize and forfeit a vehicle based solely on probable cause for the arrest, regardless of whether the owner is ever convicted of (New Mexico) DWI, then the vehicle owner will have the concrete injury, the motive … and the opportunity to mount an effective challenge to the ordinance.”

The city of Albuquerque is clear to begin its vehicle seizure program at any time.

No trial. No judge. No argument. No conviction. Anyway you cut it, this is theft.

[MicroBalrog]

I'm with jfruser. It's getting out of hand.

THIS!

Is word.

Most importantly, they're moving in to make drinking and smoking not socially legitimate. The end-game is banning driving with ANY alcohol content at all, and eventually stigmatizing drinking to the point where they can try and ban it again, like they're trying with tobacco.

[grislyatoms]

and eventually stigmatizing drinking to the point where they can try and ban it again, like they're trying with tobacco.

Yeah, and Prohibition worked so well the first time around...

[PTK]

I favor by the side of the road trial and execution for drunk drivers.

I really hope you just forgot the smilie to emphasize the sarcasm, Mike.

[seeker_two]

Stiff penalties for drunk driving.....yes.

Raising the BAC limit from .08 (no scientific basis for impairment) back to .10 (plenty of scientific evidence)....yes.

DWI checkpoints.....no.

Circumventing due process (blood tests w/o warrant, seizing & auctioning vehicles before trial)....HELL NO!


Do I make myself clear?....

[freedom lover]

I doubt there are enough people who want to totally ban alcohol and tobacco to  actually make a difference in an election.

But I can see that maybe someday there will be. And it only takes one crazy executive, or a anti-freedom court to create a precedent. Hopefully it will never happen.

I think that what people do in private is their own business. Our freedoms include the freedom to do stupid things to ourselves, to make mistakes as well as good choices.

[zahc]

I still don't see why driving under the influence of alcohol is so horrible, but driving under the influence of prescription drugs, talking non the phone, putting on makeup, or just NOT PAYING ATTENTION are all like, o well.


If someone causes an accident, I don't see why it matters if they are drunk or not. In fact, I would be more angry if they weren't.

[cassandra and sara's daddy]

what a surprise  a dui lawyers blog.

not sure about other states but in va you know that refusing test loses license  you sign a statement when you get license.

[cassandra and sara's daddy]

how would one easily and cheaply save a breath sample?

[roo_ster]

how would one easily and cheaply save a breath sample?

Read the blog:

Why Do Police Destroy DUI Evidence?
Posted by Lawrence Taylor on October 13th, 2008

As we all know from watching TV, the police are always very careful to preserve the evidence in criminal investigations. Except in DUI investigations.

What is the single most important piece of evidence in most drunk driving cases? The Breathalyzer test. In fact, it’s the ONLY evidence of the crime of driving with over .08% blood alcohol. And it’s pretty important for the “driving under the influence” charge, too: the law presumes the defendant is under the influence if the test result is .08% or higher. Evidence just doesn’t get more important than that.

So, of course, the police are careful to preserve the breath sample, right? I mean, there may be some question later of whether the machine was working correctly; it would be a simple matter to save the sample so it could be tested again on another machine. And, hard to believe, but the defense may not want to just take the officer’s word that he administered the test correctly and that the test results were from the defendant.

Unfortunately, the breath sample is routinely destroyed moments after it is tested.

But how can this be? That’s a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and reversed the conviction:


Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant.  People v. Trombetta, 142 CalApp.3d 138 (1983).


How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a “field crimper-indium encapsulation kit” was readily available, cheap and approved by the California Department of Health Services. So why isn’t the evidence saved in DUI cases today?

The Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:


Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case.  California v. Trombetta, 467 U.S. 479 (1984).


What? Neither of these two conditions is met in a DUI case? Let’s take another look at the Supreme Court’s test…


1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of any value to the suspect?

2. The defendant was able to “obtain comparable evidence by other means”…..How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him — but it would probably be so much later that it would not be relevant or even admissible in court.


Another example of “The DUI exception to the Constitution”.

It’s interesting that the New Hampshire Supreme Court later rejected the Supreme Court’s reasoning, and relied upon its own state constitution in requiring breath samples to be saved:


A suspect would face numerous practical difficulties in obtaining a second sample on his or her own. While in police custody, the suspect would have to locate an available, licensed technician capable of promptly performing a second test, no matter what time of day or night. Even if a defendant successfully obtained an independent second test, the results would not have the same evidentiary force as would a second test performed on the same machine at approximately the same time. Opinion of the Justices, 557 A.2d 1355 (1989).


The Trombetta decison was, as intended, a huge green flag to police agencies across the country: Go ahead and destroy the main evidence — but only in DUI cases. And law enforcement agencies have happily complied.

So, it is easy & cheap enough to be imposed by the state of NH on its LEOs.

what a surprise  a dui lawyers blog.

not sure about other states but in va you know that refusing test loses license  you sign a statement when you get license.

I'm not cool with the "driving as a privilege" horse manure.  I don't recall the FF or any of their state/colonial-level buddies considering free movement on taxpayer roads by horses & wagons a "privilege."

[MechAg94]

I still don't see why driving under the influence of alcohol is so horrible, but driving under the influence of prescription drugs, talking non the phone, putting on makeup, or just NOT PAYING ATTENTION are all like, o well.


If someone causes an accident, I don't see why it matters if they are drunk or not. In fact, I would be more angry if they weren't.

I agree with that.  Reckless driving is reckless driving.  Reckless driving while drunk should certainly be punished.  If the driver in control, obeying traffic signs, etc, leave them alone. 

[cassandra and sara's daddy]

California Department of Health Services

has what bearing on approving the method for the judiciary.

[MicroBalrog]

California Department of Health Services

has what bearing on approving the method for the judiciary.

It shows the method is safe, cheap, and reliable.

[cassandra and sara's daddy]

i can't find anything about this "method" outside of references to this case. can someone help me out?

[MicroBalrog]

what a surprise  a dui lawyers blog.

And this makes the argument less valid? No, it doesn't.

Are any of the factual claims made untrue? Are any of the cases cited cited incorrectly?

[cassandra and sara's daddy]

nope he listed the supreme court ruling he doesn't like correctly.  the one that affirms the things that knot his panties

[Leatherneck]

I pled guilty to a DWI about thirty years ago. I was sentenced to remedial training and a restricted license for 30 days (to and from work only). It was a pair of County Mounties in a marked patrol car who said they saw me make an abrupt lane change on US Rte 1 at 2300 on a Friday night. I certainly didn't think I was dangerous. But I got arrested and have to explain that every five years when my clearance gets re-investigated.

I don't dispute that I was drinking more than the law allows that night.

I don't dispute that driving after drinking too much gets progressively more dangerous the more one drinks.

I think there are many other driving habits that are far more dangerous than simply drinking too much.

One time, even earlier ( just after I got back from Vietnam, so it must have been 1969 or 1970) I was pulled over in rural Southern Maryland around 0230 on November 10th ( you might recall that's the birthday of the Marine Corps, a traditional excuse for Marines to over-indulge). I was drunk by anybody's standards. Knee-walking, commode-hugging, fighter pilot drunk. Those were the days when social drinking in the military would be considered acute alcoholism today. The LEO talked to me--replete with dress blues, new medals, and the glow of the Birthday Ball all over me--and told me drive cautiously to my home while he followed me.

I haven't driven at all after drinking at all in many years.

I don't like the nanny-state over-enforcement of these laws. I don't like the over-enforcement of any laws, actually.

TC

[macadore]

It does mean, however, that you cannot drive impaired, and because everybody's body chemistry and tolerance to ETOH is different, they've set the BAC limit at .08 in most of the states.  

Many people can drive better with a .08 BAC than most eighty year olds can sober. It’ not about driving while impaired.  It’s about punishing behavior (i.e. drinking alcohol) that someone does not like. Let’s test peoples’ ability to drive rather than their BAC. Good luck getting that by AARP.

[Firethorn]

Do I make myself clear?....

Pretty much my view.  From my studies, the impairment of .08 isn't enough to overcome natural random variations in driving ability - Something as simple as not getting a good night's sleep. Though I'll note that I've been known not to drive when I have the flu or some such.

Having read reports about accidents with fatalities - I'm not saying they don't occur, but I have personally never seen a report where a fatal accident occurred between the .08 and the .10 level - For that matter the vast majority are .15 and UP for fatal accidents.

I lost a aunt to a drunk driver - from what I've heard, it was a drunk driver on a Sunday morning, he was over .2, and it was his seventh offense.

Regardless, the .08 vs .10 thing is a lesser matter to me than the 'constructive possession' angle for DUI - the idea that you're drunk, with your keys, in the car is enough to charge you with full up DUI - even if they found you sleeping in the back seat of the dead cold car in the parking lot of the bar you got drunk in.

I'm sorry, while I'm all for busting drunks that run from cops and try the 'I wasn't driving, you didn't catch me in the car' angle, or even DON'T encounter the cops until you've left the vehicle, as far as I'm concerned - as long as the car stays in park(or equivalent), you're doing the right thing.  Busting the guy asleep in the back seat actually encourages the wrong behavior - you're an easy bust if you stay in your car, the odds of you being caught are actually less if you drive home in areas where they practice this.  So it actually encourages real drunk driving.

[Sindawe]

i can't find anything about this "method" outside of references to this case. can someone help me out?

Indeed, your Google FU is weak Grasshopper. 

Indium tubes for preservation of breath samples

Abstract: Indium tubes are coated inside with "Carbowax 1500," and are used to encapsulate breath samples. The coating acts to passivate the indium surface preventing a decomposition reaction between the indium and any ethyl alcohol contained in the breath sample. 6 Claims, No Drawings

Driving impaired is driving impaired. , be it at a .08 BAC, or .15 BAC - either is deadly to innocent persons in the path of the vehicle.

Fixed it for ya.  It matters not WHAT the source of impairment is. Be it EtOH, Opates, Cannibinoids, the cell phone, Alzheimer’s or just fatigue; it is still operating a motor vehicle while one's ability to focus and control the vehicle is impaired.

So lets drop the supect field tests/breathalizers and start using a testing of ones impermanent that does not look at the source of that impairment

Something as simple as not getting a good night's sleep.

Quoted for truth.  The scariest moments I've had behind the wheel have not been from EtOH, stress or what have you in the days of youthfull idiocy.  It has been from a chronic lack of sleep when I'm fighting to stay awake and the road ahead looks like a Salvador Dali painting.