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Title: The DUI Exception to the Constitution
Source:
http://www.duiblog.com/2005/05/09/the-dui-exception-to-the-c
URL Source: http://www.duiblog.com/2005/05/09/t ... exception-to-the-constitution/
Published: Dec 31, 2008
Author: Lawrence Taylor (not that one )
Post Date: 2008-12-31 21:21:30 by freepatriot32
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Keywords: DUI, Exception, Constitution, smoke the pigs
Views: 188
Comments: 4
In the course of various postings concerning MADD, I have received emails suggesting that they are a civic-minded organization which does not deserve my criticisms. As I have said on many occasions, I believe them to be a well-intentioned group of "true believers" — who, like most zealots, have a rigid and narrow focus and are ignorant of the harm they cause to others. And in other posts I have tried to explain the nature of that harm. Many years ago, I was invited to give a lecture to a "think tank" of government, corporate and academic types. In the years since then that I have given versions of it to other groups, the legal and political situation has only grown worse. Perhaps the lecture itself might better explain why I consider MADD to be a continuing threat to our institutions and constitutional safeguards….. I hope to convince you in the next hour, some of you, that the greatest single threat to our freedoms, the freedoms set forth in the Bill of Rights, is not from Iraq or Iran. I don’t think it’s from North Korea. I don’t think it’s from the extremists of the Muslim world. The threat, as it has always been throughout history, is internal: It is from within. But I do not think it is from the American Communist party or extremists on the right. I hope to convince a few of you that the greatest single threat to our freedoms today comes from a group consisting largely of American housewives. They call themselves the Mothers Against Drunk Driving. MADD. I am fully aware that some of you belong to MADD. And I am certainly not here to make fun of them. Others of you here do not belong to MADD, but you have contributed to MADD and many more of you here, perhaps most of you here, are in complete sympathy with their goals and their activities. Many of you have had tragic losses at the hands of drunk drivers. But I hope to convince you in the next hour that you might want to reassess your view of that particular organization. And I do not take them lightly in terms of their intentions. But we know that throughout history it is the well-intentioned zealots — those who believe strongly in the rightness of their cause –that are most willing to impose those ideas upon others. I do not, by the way, for a moment suggest that we should legalize drunk driving. I’m going to make that clear at the outset. But it is the true believer who is the greatest threat. And I should at the outset acknowledge my tremendous debt to Mr. Eric Hoffer who wrote the book, The True Believer. He was a longshoreman when I was going to school at Berkeley in the 60’s. He did not have a high school education, but was teaching philosophy at the University of California at Berkeley and wrote this little jewel of a book that has been terribly influential in my own thinking. I would like you to imagine for a moment that you’ve gone to a friend’s house for dinner. In the course of a very good dinner you’ve had a couple of glasses of a good Merlot and it is now time to drive home. I would like you to imagine that you are on your way home–and, I will tell you, by the way, that two glasses of wine will not, in any state, put you under the influence of alcohol or over the legal limit of .08. As you are driving along the highway, you see ahead of you some flashing lights and barricades and police cars accordioned across the highway, with flashing lights directing you into an increasingly small channel. And, as you go in, you are stopped and two police officers approach you and stick a flashlight in your face and say, "Breath on me. Have you been drinking tonight? Please step out of the car." Some of you say, "Well, that can’t happen in the United States. We have the Fourth Amendment to the Constitution, which says police officers have to have probable cause to stop you. They have to have a reason to believe you’ve done something criminal before they can stop and detain you.’" And so said the Michigan Supreme Court in 1990 in the case of Sitz v. Michigan. The Court said, "The Fourth Amendment does not permit these types of roadblocks" — and reversed the DUI conviction. The case went up to the United States Supreme Court, unfortunately, and that august body decided that somewhere in the Constitution there is something called a "DUI Exception". And in a 5 to 4 vote sent it back to Michigan saying there is no violation here. What’s interesting is that the Michigan Supreme Court — bless them, for there are fewer and fewer of them — said, "Well, if you will not protect our citizens in the state of Michigan from this kind of police conduct, we will. And we again reverse the conviction and this time we rely upon our own state constitution." The state of Washington and three other states have followed suit. In 44 states today, however, it is legal to stop you for absolutely no reason other than the fact that you are driving a car. The only purpose is to check you out for drunk driving. You have been stopped, you have been taken out of the car and you have been handcuffed. You are placed in a police vehicle and you are on your way back to the police station. About this time you’re probably wondering: I’ve seen this TV show somewhere — they’re supposed to read me something aren’t they? Something called Miranda? Aren’t I supposed to have a right to an attorney? Don’t I have the right to remain silent? That becomes an issue because, as you’re being driven to jail, the officer’s asking you all kinds of questions. Like, "Where have you been?" "Where are you coming from?" "How much have you had to drink?" "How long ago was it?" "When was the last drink?" "Do you feel the effects?" "Where are you now?" "What time of day is it?" Well, again, a state Supreme Court said, "Hey, this person’s handcuffed and under arrest, you’ve got to advise him of his constitutional rights under Miranda." And again, it went to the United States Supreme Court. In 1984 in Berkemer v. McCarty, the United States Supreme Court fooled around for about 20 or 30 pages of opinion and finally concluded that there was apparently a DUI exception to the constitution. And that, "Well, we really can’t tell you when you’re supposed to give Miranda in a DUI case. We do know that it is later than in other types of criminal investigations." So, the U.S. Supreme Court has told us we don’t know when Miranda is supposed to be given in DUI cases, but it is clearly some time later than in other cases. About this time you arrive at the police station and the officer takes you into a room and there is this little metal box about the size of a desktop computer. And he says breathe in here. And you say, "Wait a minute, I have a right to an attorney. Can I make a phone call?" "No", says the officer. And, he’s right. However, this denial of access to an attorney is only applicable in DUI cases. He’s right. You’re about to give the most incriminating evidence possible to give in a DUI case and you have no right to seek the advice of an attorney as to whether to breathe into that machine or, in the alternative, to agree to submit to a urine or a blood test. And I’m only touching on a few of the problems. In California, for example, and in many other states, the law says you have a right to choose between breath and blood. It is your choice. We have discovered in California, however, through our own Supreme Court that when the officer doesn’t give you that choice — just makes you breathe into that little black box–that’s okay. They’re not supposed to do it, but there’s no remedy. There’s nothing that can be done about it, so says the California Supreme Court. You can’t suppress the evidence. Well, police are not stupid, so now about half of them simply don’t give you that choice, since nothing’s going to happen if they don’t. Your next thought is, "I don’t know if I trust that little machine. Maybe I should refuse to breathe into it. I think I’m okay because, because as I remember, there’s a Fifth Amendment right in the United States Constitution that I don’t have to incriminate myself, and, not only that, but if it goes to trial, the prosecutor can’t even refer to the fact that I’ve exercised my Fifth Amendment right." The South Dakota Supreme Court agreed a few years ago and they said, "This gentleman refused to incriminate himself by breathing into that machine and it was reversible error for the prosecutor to comment upon that to the jury and tell them that he refused because he knew he was guilty." Now you’re probably ahead of me, guessing the outcome here. It went to the United States Supreme Court. The United States Supreme Court, in South Dakota v. Neville in 1983 said, "There’s a DUI exception to the Fifth Amendment. There is no right to refuse and the prosecution can comment freely in trial upon that refusal." And they sent it back to South Dakota. And. like Michigan, South Dakota said, "If you folks in Washington, DC will not protect our citizens, we will rely upon our own state constitution," and they reversed it again based upon the South Dakota constitution’s provisions against self-incrimination. Unfortunately, that’s the last story I have of a state supreme court protecting of its own citizens. So, you decide you’re going to breathe into that machine. And you do. You breathe into one end and out comes a piece of paper at the other end that says your blood alcohol concentration is .13%. Now, at this point, in most states, the police are supposed to give you a choice as to whether you want a blood sample taken and saved as well, so that you have something for your defense attorney to have examined for an independent analysis. This is called the Trombetta advisement. They don’t give it usually. They’re supposed to, but if they don’t, "no harm, no foul" and so it is rarely done. It’s called the "Trombetta advisement" because a few years ago, in 1984, a defendant in California said, "Wait a minute, that machine captured my breath and minutes after analyzing it, just purged it into the room air. It could have saved the breath. [Very easy to do: costs about $4.50 per sample utilizing a special kit to preserve it.] It could have saved the breath and then my attorney could have had it analyzed by a separate laboratory by a more exact and reliable testing method. You have destroyed evidence that I could have analyzed and may have been proven my innocence." This went to the United States Supreme Court too, and in 1984 in the landmark case of Trombetta v. California, the Supreme Court found yet another DUI exception to the Constitution and said "Well, it would be nice if they saved the breath, but there’s no obligation to do so. And, destruction of that evidence, unless you can prove that it would have been exculpatory, has no impact." But how do you prove it would have been exculpatory if it has already been destroyed? So, today it is all right to destroy the evidence and make sure the defense doesn’t get access to it. Finally, you’re rather outraged because you know you’re not under the influence. You know you’re not over .08% — which is the standard in California. And in 5 years will be the standard in all of your states because the federal government is telling you that’s what it’s going to be. Because the Mothers Against Drunk Driving are ensuring that happens. You decide to go find one of these criminal defense lawyers you’ve always resented and ask them to represent you in trial. You want to tell a jury of 12 of your peers what happened. You want to give your version. So you tell your attorney, "I want a jury trial." Your attorney says, "I’m really sorry, but you can’t have one. You see we don’t have jury trials for DUI cases in this state, because in 1989 the United States Supreme Court in Blanton v. North Las Vegas, a DUI case, said, "There is no Constitutional right to a jury trial in a DUI case, so long as it’s not punishable by more than six months in jail." So, in several states today, including Nevada, Louisiana, New Jersey and Hawaii you have no right to a jury trial. And the Mothers Against Drunk Driving and a few other organizations are doing everything they can to make sure there are no jury trials in other states as well. All right, we’ve taken a look at what happens to you as you go through the process in terms of any Constitutional rights you thought you had. And if you’d been charged with burglary, murder, rape, you would have had those rights. At least for now, until those rights are taken away as well, utilizing the same ‘necessity’ argument used for DUI prosecutions. Now, let’s take a look at what the crime of DUI really is. What is the offense you just committed? I will tell you that when I have clients come in the door, almost none of them know what the crime is, and probably half of them don’t know if they’re guilty or not. In the beginning there was a law. That law said "Thou shalt not drive under the influence of alcohol". Period. It was a good law. We needed it. It addressed the problem. It was fair. Unfortunately, there were some defendants being acquitted. And so an inventor came along and said, "Well, I’ve got this great little gizmo here. I call it the Breathomatic. It’s a box and if you breathe in this end, out the other end comes this piece of paper and it’ll tell you exactly how much alcohol is in the person’s blood." Well, that sounded pretty neat. And so legislators and prosecutors approached the American Medical Association and said, "We’ve got this wonderful machine. Can you tell us at what level of blood alcohol concentration a person is impaired in their ability to drive a vehicle?" And the AMA said, "After extensive research, it is 0.15 grams percent." This was about 60 years ago… 0.15 percent. Well, that was okay for a while, but a whole lot of people still were not getting convicted. Part of the problem was there was only a presumption that you were under the influence. In other words, if you were over .15% the jury could accept that you were under the influence, or they could reject it and say other evidence shows that you weren’t. The second problem was that a lot of people were coming in at .13, .14, .12. And a third problem is, you wwa that you may have been .15 at the time of the test in the station, but what were you an hour earlier when you were driving? So, they went back to the American Medical Association a few years later and said, "Are you sure about that .15? Couldn’t it really be a little lower?" And the AMA said, "You know, you’re right. It’s .10." Now, the human body, to my knowledge, had not changed in those 20 years, but certainly the AMA’s research did. And responded to considerable political pressure. So, now jurors were told that they could presume guilt if there was a .10%. A dramatic change in ‘the number’. Unfortunately, there were still criminal defense lawyers out there and there were still acquittals, and the Mothers Against Drunk Driving, a very effective, very well financed organization, as some of you here know, was very successful by working through a federal agency called National Highway Traffic Safety Administration in putting pressure on states to further drop it to .08%. And as I indicated earlier, about a third of the states have done exactly that, the others are rapidly following suit. Well, there’s no question, there were fewer acquittals now and the prosecutors were increasing their conviction rate. But, there were still some acquittals. And so MADD and the federal agencies decided to change the law further. More accurately, MADD came up with another law. This is called the per se law: If we can’t convince jurors that a person is under the influence over .08, we can make it a crime to merely drive while having a BAC over .08. The crime is being over .08 per se. We don’t care if they’re intoxicated or impaired. If the person has a BAC level over .08%, or .10% blood-alcohol perhaps, in your state, that is a crime all by itself. Not only that, let’s keep the original law. So, now we give the prosecutors two shots to obtain a conviction whenever a test is taken by a suspect: If they can’t convince the jury he’s under the influence, well then maybe they can convince them he was over .08, even though he was not under the influence — and vice versa. This once again certainly increased the conviction rate, and the number of acquittals continued to drop. But there was a problem. Acquittals were still happening. New, creative and detailed attacks began challenging the technology involved in breath alcohol analysis. The gist of the attacks by defense lawyers was based on the fact that the machine, to put it simplistically, assumed that you are an average person. The machine is measuring the breath. It is measuring the alcohol in the vapor of the alveolar air in the deep lungs that you expel. But the machine is telling you how much alcohol is in the blood — not in the breath. So it uses what we call a partition ratio. To put it simplistically, the machine has an old, very primitive computer inside it. There are different machines, but the computers in them will all report, "Well, if you’ve got this result from the breath, there must be 2100 times as much in the blood!’ Using a multiplier inside the little computer, that’s what it prints out. But the computer is assuming that your partition ratio is 2100. Problem? Very few people have a partition ratio of 2100-to-1. It ranges anywhere from about 1100-to-1 up to 3500-to-1 and higher. And there is no way of knowing at the time of testing what your partition ratio was because medical studies have shown that the partition ratio changes within an individual all the time. One person is going to be very different than the person sitting next to him. Your partition ratio tomorrow is going to be different than what it is right now. Well, what does that mean? It means if you blow, let’s say, a .11 and you have a 1300-to-1 partition ratio, that .11 is really 0.07. You’re innocent. Your crime, unfortunately, was not being average. Well, attorneys usually go to law school because they failed physics, chemistry and so on in college, but a few defense attorneys were able to master the technology involved — were actually learning how this machine worked. And they thought, "Whoa! There’s an assumption here, 2100-to-1", and they cross-examined the expert from the law enforcement’s crime lab and said, "Isn’t it a fact that…?" And the guy would hem and haw, and finally say, "Well, yeah." Acquittal. The 2100-to-1 ratio issue is still a viable defense in a lot of states. Not in California anymore. And not in a growing number of states. In California, our Supreme Court, which is slightly to the right of the U.S. Supreme Court, said, "No, not really, because what you’re doing is you’re measuring the alcohol on the breath. You’re not measuring the blood directly, you’re measuring on the breath, and therefore we don’t have to have a partition ratio." Now, you probably don’t appreciate the complete idiocy of that statement, because the California Supreme Court did not understand the technology involved. And it was an 8-1 decision. A dissenting justice in the decision said, "Do you realize that we just created a new crime called driving with ‘alcohol on your breath’? And she was absolutely right. That’s what the Supreme Court of California did. Result? If I now ask a law enforcement crime lab expert on the stand in front of a jury, "Isn’t it a fact that the partition ratio you used assumes an average of 2100-to-1?" I can be held in contempt of court by the judge. If I try to bring out the truth, I can be jailed. I’m not exaggerating. And I’m telling you that this is true in a growing number of other states. I have lectured in 36 states to lawyers’ groups, bar associations, and so on, so I’m familiar with the different states and their different approaches. All of which are becoming much more standardized as the Federal Government continues to step in. Well, that made things a lot easier for prosecutors to convict in California. Once again, the conviction rate went up. It became more and more difficult to defend people accused of drunk driving. I did not say "guilty" of drunk driving: Accused of drunk driving. Well, but there are still many defenses left, because, as I hope I will have time to get into, this machine is, to say the least, unreliable. One of the problems is called retrograde extrapolation. It’s all well and good the the suspect was a .11 at the time that he breathed into the machine at the police station. But it’s not against the law to be over a .08 in a police station. It’s against the law to drive a car over .08. What was the blood alcohol level at the time he was driving? That caused prosecutors a lot of problems. And so most states, almost all states, passed a new law — at the urgin of the Mothers Against Drunk Driving. And that law said, "If any test within three hours of driving results in a blood alcohol reading of .08, it shall be presumed that it was the same at the time of driving." Even though we know absolutely, as a matter of scientific fact, that it was not. Well, that again raised the conviction rate, except that it was a rebuttable presumption. In other words, you could introduce evidence that that simply wasn’t true. And so now, to make a depressingly long story short, some states are beginning to pass laws saying that the crime is having over .08 at the time you breath into the machine. And they don’t care what you were when you were driving the car. Notice how we’ve gotten further and further away from the evil we were trying to cure in the beginning: "Were you impaired by alcohol when you were driving your car?" Okay. Let’s take a look at this machine. And in most cases, because it’s cheaper, easer and faster than blood analysis, the police are going to have you breathing into one of these machines. Let me just give you a real quick rundown on breath test device ‘theory’. Incidentally, the book I wrote, Drunk Driving Defense, is about 1200 pages in length, of which nearly 400 pages are just on the technology of breath machines, so this is going to be very cursory. But, I think, for purposes of illustrating some of the problems, it will help. Basically, these machines capture breath from your lungs into a sample chamber. In the common Intoxilyzer 5000, for example, it’s a little 81 cc nicle-plated tube. And, by the way, there are a lot of different manufacturers of these different machines, different types, but we’ll get into that in a moment. These machines rust and corrode inside. The sample chamber gets pitted, and it absorbs or retains in these pits alcohol from previous subjects. But let’s just say for purposes of theory it captures a sample, a given volume of alveolar air from the lungs. At one end it has a projector that sends a beam of infrared energy, infrared light, through the chamber. The light passes through the breath sample that is passing through that little chamber. Now, at the other end of the chamber is a detector that ‘receives’ the light from the other side. It then measures how much of this infrared energy gets through — that is, is not absorbed by the breath and does not reach the other side of the chamber. It ‘measures’ this dimunition of light energy by comparing the original intensity of the light to the diminished intensity of the light, multiples it by 2100, and spits out the blood alcohol concnetration. Now the theory of infrared spectroscopy, as applied to DUI cases, is based upon the fact that any compound containing the methyl group of molecules will absorb the energy from this 3,61 micorn light wave. One of those compounds is ethanol, also called ethyl alcohol. Molecules of ethyl alcohol contain the methyl group as part of its structure. It is resonant with this particular frequency of light wave. So, the more ethyl alcohol in the sample chamber, the more energy is going to be absorbed, the less will get through to the receptor, the higher the blood-alcohol reading will go. Actually, the concept is fairly simple. Except, again, the light waves are absorbed not only by ethyl alcohol, but also by any methyl group in any compound. In other words, it is a stupid machine. It does not differentiate between ethyl alcohol and any other compound containing the molecular group. It is what we call non-specific for ethanol. Any compound on your breath that contains the methyl group will be detected as alcohol — and reported as alcohol. If you happen to have 32 different compounds containing the methyl group on your breath, it not only will report them all as alcohol, it is cumulative: the machine will add all of those compounds, including any ethyl alcohol, and then report it as alcohol in the blood. So, do any of these methyl groups exist in the human breath? There are a number of scientific studies — one of which indicates that there are 102 different compounds found in the human breath that can contain the methyl group. So what you are getting is not necessarily alcohol. What you are getting is some unknown cumulative reading of any of these compounds on your breath. If you had been painting a house yesterday, today you would be registering alcohol on our breath machine. If you had been using solvents, or thinners or glue or anything like this, same result. If you had pumped gasoline into your car and inhaled any of the fumes, hours, even days later, you could be breathing out vapors containing compounds with the methyl group in it. If you are a diabetic, or have been on a low-carbohydrate diet, youo would be getting high blood alcohol readings. Now, I can go on for quite awhile, but the last example I will give you is called the mouth alcohol problem. The machine assumes that the alcohol, or whatever it is measuring, comes from the air in your lungs, and that’s why it’s multiplying by 2100. Obviously, if it is getting alcohol directly from your stomach or your throat or your mouth, it’s going to fool the machine and the results are going to be extremely high. It would take a minuscule amount of alcohol in your mouth, throat or stomach to fool the machine and create a pretty high BAC reading, since it would be incorrectly multiplied 2100 times. This is called the trapped alcohol or mouth alcohol problem. So, for example, if you burp or belch, and any gases from your stomach come up, or you have an acid reflux condition, or a hiatal hernia, and any of those gases or liquids ‘come up’ to your esophagus or mouth, remnants of the saturated gas will stay there for about 15 to 20 minutes before saliva dissipates it. It will be breathed into the machine, if you are being tested. The machine will report a reading, which will be falsely high. It does not mean you’re under the influence. It does not mean you’re really an .08. It’s simply that you had alcohol in your mouth or your throat. The police officers are supposed to guard against this by observing you for 15 minutes and making sure you don’t burp. They are supposed to sit down and watch you for a quarter of an hour before giving the test. In all the years that I have been defending DUIs, or for that matter prosecuting them, I don’t think I’ve ever encountered an officer who actually did that. They are far too busy to fool around with things like that. They will check the box, and say they did, but it rarely happens; I’m not sure they could even tell if a belch did happen. The 15-minute observation period is a safeguard, but one that the police ignore. So, these are just a couple of examples. There are hundreds of things wrong with these machines, not just theoretically as they apply to the human body, but applied to the machines themselves. So how accurate are they? They’re close enough for government work. In California, for example, the legal standards of accuracy are that you must have duplicate analysis (two sequential tests) and each result must be within .02% of the other. That means you’d have to take two tests. If the first one (just to use a number to make it mathematically easy) is .10%, the next one has to be .08, .09, .10, .11 or .12. Think about it: a 40% range of error is scientifically accurate in a case where the state must prove your guilt beyond a reasonable doubt. In most states, a 40% range of error is considered to be ‘acceptable accuracy’. Close enough for government work. The people that make these machines keep coming out with new models. They’ll come out with a model and call it ’state-of-the-art’, ‘foolproof’, ‘fail-safe’, and then two years later they come out with a new model that takes care of all of the problems found to have existed with the earlier model. Meanwhile 100,000 people have been tested on the old device (which is quietly retired from service), yet none of those convicted can re-open their guilty pleas, or undo the damage done to their lives and careers by the machine. Then a competing breath manufacturing company comes out with a new and improved model that takes care of the problems with their competitor’s new model. And this has become a fairly regular battle of the manufacturers, year after year. If you look at the warranties on these devices, few of the manufacturers warrant these things to actually test blood alcohol. If you read the warranties, they specifically say that there is no warranty of ‘fitness for a particular purpose’. That’s a legal phrase. Basically it means they don’t want to get sued by somebody if there is a false reading. So they will not even warrant these things to do what they’re selling them to do. The standard warranty, for a total breakdown of the device, is about one year — about what your toaster is warranted for. The difference between the two machines? Your toaster is warranted to toast bread. Okay. Let’s talk about science and the law. Right off the bat we’ve got a problem. Science, if you can define it, would be, I would say, the systematic pursuit of truth. The objectives of law are very different. It is a governmental mechanism for imposing order, structure, predictability, security, and confidence of the public in its institutions. The law is not concerned with truth. That distinction is important in understandking what is happening in the DUI legal arena. To understand it you must understand the difference. Hundreds of years ago a guy named Galileo said, ‘the universe is really not flat, the way Rome says it is’. You saw what happened to Galileo. Have we progressed? Not if a lawyer tries to tell the truth to a jury about the limitations of a breath machine, and, in doing so, is held in contempt for properly and zealously representing his/her client. I would say we have not come all that far since Galileo’s days. Again, the legal system is not concerned with truth. And it may come as a shock, but it is not. It is concerned with order, stability. If the legal system were seeking truth, the government would not falsely assume that there’s a 2100-to-1 partition ratio. If the legal system cared about truth, they would not presume that your blood-alcohol was the same ‘number’ three hours earlier, when the government knows it is not. If they sought truth, they would recognize that these machines are non-specific, among other problems. The legal system is not concerned with justice, either. It is concerned with expediency, not justice. If they were concerned with justice, they would not permit roadblocks. They would not presume guilt. They would not pass laws refuting scientific truth. I just said, "They would not presume guilt." That was another DUI exception to the constitution that I didn’t tell you about. One other thing the police officer does after he has you breathe into that machine, if you’re over .08, is that he immediately grabs your license and confiscates it. This is another contribution from MADD. Immediate seizure of the license in 48 of the states today. On the spot. Justice administered by the police officer. No judge. No jury. You are presumed guilty. Your license is confiscated and you are given a notice of suspension. What happened to the presumption of innocence? After you have been given this suspension, you will be facing further punishment in criminal court — possibly including another suspension. Does this sound like double jeopardy? Of course it does, but after some initial disagreement, the courts decided that the first suspension was not a "punishment": it was only an "administrative sanction". How far can things go? Some of you may have heard about a case recently in North Carolina. Now, we have never executed people, we’ve never, until recently, given the death penalty for a crime unless there was pre-meditation of the offender. Intention to kill and time to reflect upon that and then to carry out the plan and cold-bloodedly murder. Some exceptions have been added: Killing a police officer; multiple murders; murder by torture; murder for ransom. In North Carolina this year there was a DUI case involving an accident and a fatality It would, in any other case, in another state, likely be a vehicular manslaughter case. It was not an intentional act. It was negligent; it may have been reckless. And the prosecutor sought the death penalty. The death penalty. The law permitted it and the judge let him go for it. Fortunately, they didn’t get it. So, in the DUI arena, you have unfair procedures. You have false evidence. You have wholesale erosion of rights. But, some may rationalize, ‘at least the DUI-caused fatalities are falling, correct?’ If you believe the statistics from the Mothers Against Drunk Driving and National Highway Traffic Safety Administration, that would be correct. If you look at it more closely, however, you’ll find they start using terms like "alcohol-involved", "alcohol-related", and those statistics start changing to justify what they have been doing for the last few years. The numbers have been manipulated so that if any person involved in any way in the ‘accident’ had any alcohol in his/her system — even .01 per cent — MADD and our federal government counts that as an ‘alcohol-related’ death. If a pedestrian or the deceased driver had been the only one drinking, it would have been an "alcohol-related" fatality. So, what is happening in the DUI field? Same thing that’s always been happening. The real danger to your lives, to my children’s and your children’s lives, are from recidivists. Statistically, the risk lies with recidivists — people that have driven drunk repeatedly. Which is, despite what MADD says, a relatively small percentage of those who are arrested. Problem? How do you reach those people? Can you affect the incidence of death caused by DUIs by increasing the punishment? As to those recidivists, I tell you: no. We are trying to use the legal system to address what may be partially a medical, perhaps psychological, but in my opinion certainly a genetic problem. Now that sounds like an easy cop-out. I wrote a book about 15 years ago called Born to Crime: The Genetic Causes of Criminal Behavior, so I suppose that I am a bit biased, but I’m basing what I say upon defending and prosecuting thousands of DUIs and I’m absolutely convinced that alcoholism is largely genetic in origin, at least a strong genetic predisposition. And I think the studies, and one of the chapters of Born to Crime was devoted to alcoholism — the studies are overwhelming. And so long as you have a system that is geared to behavioral modification — that is, ‘we’re going to change his drinking habits by putting him in jail for six months’ — or deterrence – ’we’re going to stop other recidivists from driving drunk because of their fear of jail’ — then you’re fooling yourselves. Do I have an answer? No, I don’t. But I know that system isn’t working, and in the meantime we are slowly dismantling the Constitutional rights that are our birthright. Is this just about drunk drivers? The simple fact is that our legal system is based upon precedent: rights that are lost in a DUI case today can be lost in any other case tommorrow. To paraphrase a famous quote from pre-war Germany, "First they came for the drunks, but I was not a drunk, so I did not speak up…." This entry was posted on Monday, May 9th, 2005 at 7:39 am and is filed under Duiblog, Library. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site. Trackbacks & Pingbacks […] ‘Still think I’ve been exaggerating about “The DUI Exception to the Constitution“? Share: […] Pingback by DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution — December 11, 2006 @ 2:54 pm […] Another example of “the DUI exception to the Constitution“. It’s interesting that the New Hampshire Supreme Court later rejected the U.S. 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). […] Pingback by DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution — December 11, 2006 @ 3:00 pm […] Individual rights? Haven’t they heard of the “DUI Exception to the Constitution“? (And so much for designated drivers, calling a taxi, walking home, etc.: now you get arrested for being a potential drunk driver — even, apparently, if you don’t have a car to drive.) […] Pingback by DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution — December 11, 2006 @ 3:14 pm […] In the continuing “war on drunk driving” and its damage to the Constitution, what new weapons will be tried? One, certainly, would be randomly pulling drivers over for no reason and forcing them to take breath tests. Sound far-etched? They’ve been doing it in Victoria, Australia, for years: In response to the magnitude of the alcohol affected driving problem in Victoria in 1977, the Government of the day introduced random interception and testing of drivers for the presence of alcohol without the intercepting police being required to have any previous knowledge of any alcohol affect on that driver. This was the birth of Random Breath Testing as we now know it. The original objective of this legislation was to identify and prosecute all drivers found to have a B.A.C. over .05% and remove them from our roadways…. An investigation in 1987 throughout Australia on R.B.T. by Prof Ross Homel and others found that the apparent effectiveness of R.B.T. was due to its preventative capacities rather than the detection of offenders for which it was originally designed (Homel, Caseldine and Kearns, 1988). It is now accepted in Victoria that the true objective of R.B.T. is “to create a perception amongst the driving public that if they drink then drive, their apprehension is inevitable”. Whether that threat is real or otherwise is not the point, the key is whether the public believes it to be…. But this is America, you say. We have the Fourth Amendment, which prevents police from stopping you without probable cause to believe you have commited a crime. Then why do we have DUI roadblocks? Because the U.S. Supreme Court ruled 5-4 in Michigan v. Sitz that stops without warrant or suspicion was “justified” by the severity of the drunk driving problem (also known as “The DUI Exception to the Constitution“). When MADD discovers random breath testing (followed inevitably by politicians falling over themselves passing laws to accommodate them), do you really think the Court will take a different view? (Interestingly, the Irish are considering random breath testing, but the proposed law is considered unlikely to pass because it appears to be a violation of their constitution’s proportionality provision: laws cannot be “excessively powerful in proportion to the objectives they are meant to achieve”. Not a bad concept for this country — but it would mean the end of DUI roadblocks, among many other things.) (Thanks to Richard Diamond for the Australia information.) Share: […] Pingback by DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution — December 11, 2006 @ 3:19 pm […] In other words, if you have any measurable amount of alcohol in your body — even less than .01% — the officer can arrest you for driving under the influence (without any evidence that you are under the influence) or over .08% (depite clear evidence that you are not). How can they do that? Simple: What I have referred to over the years as “The DUI Exception to the Constitution“…. […] Pingback by DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution — December 11, 2006 @ 3:20 pm […] The following news editorial is yet another example of the prevailing view that there is a “DUI Exception to the Constitution“: Hampton Roads, VA December 21. The law that protects the public from drunken drivers is under assault, and one of the jobs facing the General Assembly when it convenes in January is to shore it up. […] Pingback by DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution — December 11, 2006 @ 3:21 pm […] 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 I long ago gave it 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 judges to get reelected. We’ll talk about that in a moment….. […] Pingback by DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution — January 18, 2007 @ 6:58 am […] “Becoming a Police State…in the Name of DUI””Close Enough for Government Work””Field Sobriety Tests”: Designed for Failure?”How Can You Defend Them?””Immaculate Intoxication””State of the Art” Breathalyzers: A History”The DUI Exception to the Constitution””Xeroxed” DUI SymptomsA Closer Look at DUI Fatality StatisticsBreath Alcohol Testing: “State of the Art”? […] Pingback by DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution — January 23, 2007 @ 1:34 pm […] "The DUI Exception to the Constitution" […] Pingback by DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution — March 25, 2007 @ 3:29 pm […] Lawrence Taylor at The DUI Blog – Thanks to Mothers Against Drunk Driving, we have the crime of blowing 0.08 or greater on a breathalyzer. It doesn’t necessarily meausure alcohol, is only loosely correlated with blood alcohol, and says nothing about how impaired you are, but in most states, just that one number on a machine is enough to put you in jail, no jury trial required if the sentence is less than six months. And the cop can confiscate your license to drive on the spot. Detailed analysis of the history, technology, and legal advance of this blatantly unconstitutional travesty of justice (violates the fourth and fifth amendments, in spades). [saltypig] […] Pingback by Rifle Stocks and Rifle Sights for the AR-15 » Blog Archive » SWAT tactical gear - The Confession Backfired — March 27, 2007 @ 1:13 pm […] If you’re looking for something to be pissed off about, look no further: The DUI Exception to the Constitution (DUI BLOG). […] Pingback by Sperari » Blog Archive » The DUI Exception to the Constitution — June 24, 2007 @ 12:39 pm […] read more | digg story […] Pingback by a shrine of insignificance » Blog Archive » “The DUI Exception to the Constitution” — July 23, 2007 @ 5:34 am […] So what happened to this presumption of innocence in a drunk driving case?33; Is this yet another example of “The DUI Exception to the Constitution“? […] Pingback by oklahomaduiblog.com » Blog Archive » DUI: Your Presumed Innocent, Right? Wrong. by Charles L. Sifers (and Lawrence Taylor) — August 6, 2007 @ 10:11 am […] DUI law is one of the biggest threats to our legal rights (Just for the record – I’ve never had a DUI). I know this isn’t PC and we need to get drunks off the roads. But at what expense? Our freedom to move about? Our freedom to legal counsel? An end to the presumption of innocence? Now there is clear evidence that thousands of people have been falsely convicted of DUI by faulty software. Shouldn’t people be convicted by a jury, not a machine? […] Pingback by Best of the Internet 9-9-07 | steve-olson.com — September 9, 2007 @ 7:52 pm […] – or even to drink at all – to be caught in the clutches of the DUI enforcement system. As California DUI attorney Lawrence Taylor observes, there is a widely observed “DUI exception to the Constitution,” and that […] Pingback by DUI Money Machine | JeffBrock.org — October 31, 2007 @ 6:45 pm […] I do not drink. I have absolutely zero worry of getting a DUI, DWI, for alcohol or any drugs. DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution It is insane how far this has gone. __________________ You and I have a rendezvous with […] Pingback by Destruction of our Constitutional rights. - FZ6-Forum Community — November 11, 2007 @ 11:22 am […] not a surprise: check out this page for some great dui info DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution […] Pingback by 50 DUI cases dropped over improper procedure - Sportbikes.net — November 11, 2007 @ 12:28 pm […] few years ago, the U.S. Supreme Court found yet another “DUI Exception the Constitution” in permitting police to set up roadblocks — even though they admittedly violated the Fourth […] Pingback by Police Using DUI Roadblocks Illegally - DUI Blog — December 11, 2007 @ 5:40 pm […] law is a perfect example of this. Few people understand this, but DUI law maybe the single largest threat to our constitutional liberty. It is a clear case of the end justifying the […] Pingback by The Free Savage » Democracy and a Constitutional Republic — May 16, 2008 @ 7:55 am […] read this article. The quote at the end should send shivers down every American’s […] Pingback by one higher power | faith love spirituality | Fading Constitution — June 9, 2008 @ 7:52 am […] all want to stop child molesters, terrorists, drugs, and drunk drivers (CMTDDD), but many tactics used to fight these problems are unconstitutional and are analogous to chopping off your leg to kill toe […] Pingback by The Free Savage » Our Slide Down The Slippery Slope Begins - Internet Censorship — June 11, 2008 @ 7:44 pm […] (great read) Got this off a local stang thread by me. Really a good read. http://www.duiblog.com/2005/05/09/the-d … stitution/ […] Pingback by DUI Process Unconstitutional????? (great read) — June 19, 2008 @ 9:37 am […] “The DUI Exception to the Constitution” […] Pingback by DUI BLOG : Bad Drunk Driving Laws, False Evidence and a Fading Constitution — October 13, 2008 @ 7:34 am […] 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 […] Pingback by Truth and Justice in the “War on Drunk Driving” | Dui Lawyers — November 19, 2008 @ 3:46 am Comments Well intentioned zealots? I agree initially with your definition of these people…but the bottom line is that these well intentioned zealots ruin people’s lives and their family’s lives in pursuit of the ‘drunk’ and the sacrificial lamb are the people who are not alcoholics nor drunks who have to suffer because of the drunk. It is ludicrous…to think that these people are well intentioned. As they say…’the road to hell is paved with good intention.’ and if these people are not devilish…then the leaders of the inquisition were also saints as well. Comment by basicmysterygirl — July 7, 2007 @ 7:09 am I remember one the first lessons I learned in school. I had done nothing wrong and was being punished along with everyone else. I asked the teacher about this and she said, “The good have to suffer with the bad.” I have certainly learned that one. There is nothing that you can do. When I was pulled over, I knew that I was already judged. You can tell. The cop has all the power and you don’t want to go to jail. So, you take the tests, hoping beyond hope that he’ll realize that you are not drunk. But, in the end, it doesn’t matter. I feel trapped. The other night I didn’t have a drink at all, but since I was on the side of town late at night that is monitored by cops for drunks and stops are frequent, I got a cab anyway. Can you believe that? I’m so scared to be arrested again that I don’t drive my car sober in the same area that I was originally arrested. I feel like just a number in Atlanta. Once they get that breath analysis, they don’t look at any other evidence. You are GUILTY. And frankly, they don’t have to. Comment by autumn — July 11, 2007 @ 8:31 am Mr. Taylor certainly is correct about the DUI exception to the constitution. This is why we fight. Comment by Rob Leonard — July 28, 2007 @ 9:13 pm After having my first DUI (and ONLY traffic citation after driving 30 years), I was stopped for doing 30 in a 20 mph zone. I was under special driving priveledges, allowed to drive to and from work. After the officer took my license, he went back to his vehicle and ran it. When he came back to the car, he said he smelled alcohol (I had not been drinking) and had me do a Field Sobriety test. He indicated that I had failed a portion of the test (imagine that, after not having had a drink), where he cuffed me and took me 30 minutes away to the closest police station to administer a BAC. The machine registered a .001, which I though might be due to having some beers the night before (not quite 12 hours prior, when I did not drive). After more humiliation, and resigning myself to the fact that I am guilty until proven innocent, I called a cab, walked part of the way home, and had to have my husband retrieve the car at the impound lot for $100. This, I believe, is power out of control. Why can we not challenge these officers, who have less than a 2-year education, with power on the brain? I was not advised of my rights, by the way, only held in the back of a police squad car for 30 minutes, in 70 degree heat, in cuffs, with the windows rolled up. My pet would have fared much better (ASPCA would have intervened). I would like to have some official consider, that before some cad (self-rightous police officer on a power-trip) assumes the innocence or guilt of the common person, that they have exceptional training (let’s talk more than the 2-year course at the local technical college), and use equipment (BAC) that fares better than a 20 percent margin of error. By the way, my son is a diabetic, and I can’t wait until he is pulled over when he is hyperglycemic, and reads high on his BAC. I will hire the best lawyer in the state. Just looking for a fair system guaranteed by our forefathers, but not finding it without being in contempt of the court. Comment by frkby — May 7, 2008 @ 10:56 am It is not about justice, it is about MADD revenge upon the inocent masses. The MADD lot are a very sick people. They trash the memory of those killed in DUI fatalities by destroying the lives of hundreds of thousands of people who had nothing to do with anyone being hurt. They take homes from families, education from children, happiness from life all in hateful revenge to an unfortunate accident. They take our constitution from us and lay deliberate waste to life. theirs is no accident, theirs is cunningly calculated for maximum destruction to as many as possible. I think if I were a child of a MADD person I would rather die then to be brought up by them. They are hateful, vengeful power mongerers whose sole purpose in life is to force thier beliefs upon an other wise would be free nation. They are the enemy within and if we do not put an end to their antics we are not long to enjoy any freedoms not specifically sanctioned by them and those like them. Comment by melee401 — November 22, 2008 @ 7:23 pm RSS feed for comments on this post. TrackBack URI
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#1. To: freepatriot32 (#0)
Give me their names, I'll try to keep their kids from getting ripped off by heating-and-air contractors.
And they write innumerable books; being too vain and distracted for silence: seeking every one after his own elevation, and dodging his emptiness. - T. S. Eliot
pingingto all my lists you know whatto do if a pig pulls you over and you feel ythat they are endangering your life health or saftey rember the supremejoke said that you dont haveto be right you just have to think it to be found not guilty
Americans used to roar like lions for liberty. Now they bleat like sheep for security If this person had a point he blew it. I've not seen so much superluous info before the main point in a long time; I could't read it all.
. that dot is just a place marker
The basic concept of CONstitutional "Rights" under the organic/common-law is over ridden by your choice to engage a system based upon "Privileges" secured by contracts implicit and explicit. If you are engaged in the alternative government through an SSN, Bank Account or any attachment to LEGAL FICTIONS such as corporations (which owe their existence to government) or to government itself, YOU HAVE NO RIGHTS. YOU HAVE ENTITLEMENTS or BENEFITS. The easiest example is if you work for FORD MOTOR COMPANY you're subject to their policies, while others not working for FORD are not. All conversations wherein complaints and claims of CONstitutional violations are made are moot, made in ignorance or denial, and a complete waste of time. The law that prevails today is the same law that mariners operate under. It is a system of summary judgment, wherein the captain of the ship (Judge) is the law. You have agreed to allow the Captain to rule by signing on as a crew member. (Judge is Captain / Citizen is crew member). You may not have realized it yet, but you are guilty before you enter the courtroom.
They call it the AMERIKAN DREAM because you have to be asleep (and you are) to believe it !
I am fully aware that some of you belong to MADD.
#2. To: All, *DEEK JACKSON*, *Shooters*, *Music Club*, *Music Club*, *LEAP*, *Jack-Booted Thugs*, *Ron Paul for President 2008*, *Humor-Weird News*, *Ron Paul for President 2008*, *Agriculture-Environment* (#0)
#3. To: freepatriot32 (#0)
#4. To: freepatriot32 (#0)
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