DUI Defender

In an often quoted statement, better that 10 guilty persons escape, than one innocent suffer, penned by English jurist William Blackstone, we set forth the notions of criminal justice in both England and later here, in the United States. A recent study by researchers at Northwestern University concluded that Juries may reach the wrong verdict as often once in every six trials. The study found that juries get it wrong 17% of the time and Judges get it wrong 12% of the time. The study also demonstrated that it more frequently the case that an innocent person is convicted rather than a guilty person is exonerated. This conclusion seems to support recent releases of death row inmates based on DNA evidence and other high profile. While the study that illustrated these conclusions only evaluated 290 cases in four major cities, it is troubling enough to warrant further investigation.

More glaring is the spotlight that shines on the supposed presumption of innocence and the prosecutors burden to prove their case beyond a reasonable doubt. These corner stones of our criminal justice system appear to eroded both from within the system (the on-going erosion of civil liberties for the criminally accused) and within the society as a whole (the popularity of criminal justice television). In the 1950’s and ’60’s our television hero was Perry Mason a criminal defense attorney who pointed out the weakness of the State’s case and always won justice for his client. I appears that we have lost our way, many great minds have taken “Blackstones Ratio” of 10:1 and reinterpreted it, Benjamin Franklinn thought that it was better that 100 guilty persons escaped. The current data suggests that if you are innocent your chances are 1:6 that you will be convicted.

Recently I found an article discussing the connection between increased desire for alcohol in alcoholics and certain drugs. The drugs, Anafranil, Effexor, Luvox, Paxil, Prozac, Zoloft, and diet pills, Fen-Phen and Redux increase serotonin, thereby increasing the desire for alcohol. I found it interesting that Yale study in 1994 found that an increase in brain levels of either of two neurotransmitters (brain hormones), serotonin or noradrenalin, produces: #1 a craving for alcohol, #2 anger, #3 anxiety. Unfortunately, these drugs are often taken to combat aniti-social behavior or feelings due to these particular mental conditions. It also raises concerns about the choices that persons taking these medications for their mental health and the perceived voluntary nature of alcohol abuse. It makes one wonder if a possible defense to DUI is the inability to control the desire for alcohol stemming from the use of such drugs.

Earlier this month it was impossible to avoid media coverage of the Durham, N.C. prosecutor Michael B. Nifong’s defense of his conduct as Prosecutor in the Duke University Lacrosse team prosecution. He eventually was forced to defend his actions in an unsuccessfull attempt to save his license to practice law. His misconduct extended to extreme prosecutorial abuse, he made prejudicial comments to the media, withheld DNA evidence and proffered testimony from a victim that consistently changed her story and played up the racial aspect of the case. This level of prosecutorial misconduct only came to the media’s attention due to the national interest in the case.

Unfortunately, it is common that we experience this sort of conduct (albeit not always so glaring) in the daily practice of DUI law. While defense attorney’s are expected to use whatever ethical tactics are available to provide a vigorous defense for their clients, a prosecutor’s duty is try to discover the truth and thereby attain justice both for the accused and the society that they are sworn to represent. All to often, in cases as minor as DUI’s, the Prosecutor gets wrapped up in the need for vistory and forgets that the truth is what they are sworn to seek, not just a conviction.

In an article written for the Washinton Post, Jonathan Turley, describes several high profile cases in which the prosecution forgot their duty to seek the truth and instead sought victory, a citizen forced to defend their honor, reputation and innocence from the very government to which they pay taxes and, theoretically fund their own prosecution. The fact is that many prosecutor’s offices have rates of conviction of 90% or higher. Often times the vanity of the prosecutor is a factor in the decision whether to prosecute a case, it could be that they have a bias against the particular crime, attorney or even defendant. That bias can lead to improper decisions regarding whether to prosecute a case, the strength of the evidence and the justice of seeking a conviction. In his article he references a Texas prosecutor who stated, when told he had gotten a conviction (and death sentence) against an innocent man, any prosecutor can convict a guilty man; it takes a great prosecutor to convict an innocent man.

All to often as we wage war against the government that consitently seeks to erode the constitutional protections that we once took for granted, we see the prosecution fail to provide citizen’s with the discretion that they alone bear as part of the criminal justice system.

The Saint Petersburg Times is reporting, Officer Daniel Brock was fired from his job and the State Attorney’s Office is investigating whether he should face criminal charges. Officer Brock, recognized for his stellar record of DUI arrests by MADD and his Department, has been fired for making false arrests. The record is clear he arrested 58 people for DUI when their blood alcohol concentrations were below the legal limit of .08. He stated that he thought a person could be impaired below .08 and that he thought the suspects were impaired. An investigation by Internal Affairs found that 43 of the arrests were of driver’s demonstrating no impairment while driving and in 41 instances the chemical test didn’t support the conclusions of Officer Brock. Further, video evidence proved that many claims of failed field tests were not documented by the camera, including one instance where a driver allegedly lost his balance while making a turn in the walk and turn test, that didn’t happen in the video evidence, then blew a .01 and was still arrested by Officer Brock. Apparently, this is just the tip of the iceberg, he made over 300 arrests between October 2005 and October 2006 and didn’t use his video camera approximately 40% of the time, he wrote his reports late, forgot relevant facts, and made numerous mistakes in his haste to process one arrest and get another. On several occasions he made one arrest while he had another suspect in his car, a violation of Department policy.

The simple fact is that when MADD provides incentives for Officer’s to make DUI arrests, the general public loses. The incentive and recognition heaped upon this officer by MADD and his colleagues led him to violate the public trust, make false and/or misleading statements in police reports and generally disrespect the people he was “to protect and serve.” Thank goodness for the fact that he did use the video camera in many of his arrests and the video eventually lead to hard evidence of his tactics. It is important, not just for citizen protection from renegade law enforcement personnel, but for everyone that law enforcement vehicles be equipped with video cameras.

“Stand over here, touch your nose, walk this line, follow this pen”. These are part of the instructions given to people who are stopped and suspected of driving under the influence. But what are they and what do they mean? The short answer is not nearly as much as people believe, and then only in specific situations.

It all started in the 1970’s. The federal government wanted to know if the various tests, literally hundreds, used by all of the law enforcement in America, had any validity and if some were better than others. In typical governmental fashion, a contract was awarded to the Southern California Research Institute, a study was commenced and eventually reports issued. The bottom line was that 3 tests, Horizontal Gaze Nystagmus, Walk and Turn and the One Leg Stand were deemed to be relatively reliable in assessing whether a person COULD be under the influence of alcohol.

THIS BECAME THE FIRST ISSUE WITH THE RESULTS. THE TESTS WERE TO DETERMINE UNDER THE INFLUENCE OF ALCOHOL, NOT IMPAIRMENT. There is a difference. The tests were designed to assist officers in the arrest or release decision. Not as proof of any underlying crime.

In fact, Dr. Marceline Burns, the person who ran this project, and known as the ‘godmother’ of SFST’s has made this absolutely clear in numerous court proceedings and statements “What you are asking is, are these tests of driving? They are not”. Nor can these tests be used to correlate to a specific blood alcohol level. This was discussed in the case of United States v. Horn.

So, despite what you may have heard, read or been told, any and or all of the field sobriety tests do not measure your alcohol level or the ability to drive a car. They just give the officer a “predictive power” of an elevated alcohol level.

Of course how accurate this predictive power may be depends on the officer, the situation and the use of statistics. Research has shown that under the best conditions with the best officers this predictive power never exceeds about 80%. Clearly not proof beyond a reasonable doubt.

Perhaps the biggest factor is the administration and interpretation of the tests. There are very specific guidelines on how to give a test and how to measure performance. So specific are these that officers MUST be trained to understand that varying from the standardized methods INVALIDATES the results. Again, this was said by Dr. Burns and appears in every training manual and at every training class on field sobriety tests.

So before you think that performance on a field test means a person is dui, ask yourself if the test was done correctly, was it interpreted correctly and was the result scored correctly. Then, and only then, give it the weight and value it was designed for, an arrest should be made. Not that the person is dui or has a specific alcohol level.

It suprised many observers that Paris Hilton was remanded into custody earlier today. The simple fact of the matter is she is being treated differently because of her celebrity. Most cases that I have handled that involve driving on a suspended license for an alcohol related offense (California Vehicle Code 14601.2) do not end up in jail, in fact, most appear with a driver’s license and have their cases reduced to either a misdemeanor or infraction “driving without a license.” (CVC 12500). In the rare case, when the defendant has a series of these types of offenses “priors” (more than 2) the person is looking is looking at time in custody.

The Judge ordered Paris into the overcrowded Los Angeles County Jail system. The reality is, in Los Angeles County, no one does all the time to which they are sentenced. The Sheriff must make decisions everyday regarding housing, sometimes he must release lesser criminals to provide housing to more serious criminals. Who will be released so that Paris Hilton will remain in jail? The sad fact is that because of the Judge’s decision today, the Sheriff will lose a cell into which one (or more) more dangerous person(s) could be put, because Paris needs a lesson.

Ahhhh, but now I digress, the reason that this situation is so offensive is that if Paris and her representatives had hired competant DUI counsel she might not be in jail. While I am not intimate with the facts of her case, in fact I know only that her blood alcohol concentration was .08 (right at the legal limt), I strongly believe that if the State had been forced to prove their case, she would not have an alcohol related offense on her record. I think that, regardless of public opinion of her (both good and bad) she would have either been acquitted of the DUI charge after trial, or the prosecutor would have reduced the case to a non-alcohol related offense. Her counsel (legal and/or otherwise) failed her and set her up for the soap opera that her life has become. And, if her defense attorney explained to her the choices, and Paris chose to “plead out” then she shouldn’t be singled out for preferential punishment, she should have been sentenced like others for similar offenses, she should do whatever time is the average for a forty five day sentence and allowed to move on with her life.

While not all of us have the resources to fight a case like Paris Hilton could have, we all can take a lesson and consult with an attorney who is knowledgeable in the area of law that is important to our legal problem, find out what our possible defense are and what are the possible outcomes. A lawyer that regularly practices in the field should be able to tell you what the pros and cons of your case are, without costing you a penny. Consult a lawyer, get informed.

Lest the common driver think that law enforcement is completely objective and without motive for making DUI arrests, recently several CHP officers were honored in Ventura County for their activities during the year end holidays. While the arrests these officers made may eventually withstand constitutional scrutiny and other legal challenges it certainly seems like a conflict of interest to reward law enforcement for doing their jobs. Further it seems that if an officer is uncertain whether a person is under the influence they may be arrested, tested and jailed simply for a free meal and a public pat on the back.

A few months ago I wrote about a topic covered by Time Magazine relating to distractions caused by cell phone use. In that article the author equated the distraction level as being that of a person driving with a .08 blood alcohol concentration. I recently came across a web site declaring war on cell phone using drivers. The discussion addresses many associated with use of cellular telephones including the DUI analysis made by Time magazine in December. The article includes statistics relating to the difference between hands free cellular phone use and hand held cellular use.

The article concludes there is no difference as the content of the conversation and not the use (or lack there of) of hands is the problem. The author continues on to analyze the effectiveness of laws directed at cellular phone use and the efficacy of additional laws to prevent cellular phone use in cars, period. While the use of phones continues to pose a risk similar to that of drunk driving, it continues on in a widespread fashion, there are no political action groups despite growing statistics demonstrating the risk and preventability of these accidents.

A few weeks ago I wrote about the on-going litigation in New Jersey regarding various issues relating to the Draeger Breath Testing equipment. The New Jersey Supreme Court ordered Draeger to provide the computer code that runs the device. This is an important development as the code determines how the machine reaches conclusions regarding the measurements that it makes. Having a third party authenticate the software is a huge win for the New Jersey lawyers litigating this issue. The importance can not be underestimated as the outcome of this litigation may have far reaching impact, perhaps even to California where the Draeger is growing in popularity.

Researchers at Ohio State University recently conducted experiments involving laboratory rats that suggested that moderate drinking may increase memory function. The study concluded that the laboratory rats performed better at memory tests with the human equivalent of two drinks than those who not given alcohol. The study’s researchers believe that the analysis thus far indicates that moderate drinking may prevent Alzheimer’s disease. They also believe that the research could have far reaching implications for other serious neurodegenerative diseases.