DUI BLOG

When I first passed the California Bar 42 years ago, it was a violation of the State Bar’s Canons of Ethics to advertise legal services.  A simple advertisement on the back of a matchcover could get you a suspension.  It was considered undignified and unprofessional.

Times change.  Now we have lawyer advertising on television, roadside billboards, the internet — many containing outrageous claims that would shame a used-car dealer.  

I keep thinking we’ve hit bottom in my profession, but…..the following self-promotional "news release" appeared on Google a few minutes ago:

L.A. Criminal Attorney Has Cyber Monday Sale — $99 DUI Defense Offered

Los Angeles, CA.  Nov. 26 – The week of Thanksgiving is a great time for eaters, drinkers, retailers and deal hunters – and a Los Angeles criminal defense lawyer is looking to capitalize on the revelry by offering a Cyber Monday deal unlike any other before. Starting Monday morning at 9 AM, the SLG Criminal Law Group will offer a $99 DUI defense sale to (alleged) drunk drivers in the Los Angeles area.

“The Wednesday before Thanksgiving is the biggest drinking day of the year for Americans,” said Los Angeles criminal attorney Matthew Spiegel, founder of SLG Criminal Law Group. “There are more DUI checkpoints around the holidays, and as a result there’s an influx of people being accused of driving under the influence. With Cyber Monday right around the corner, we thought it would make sense to offer a deal like e-tailers do. Apparently, we’re the first.”

The average cost of a DUI conviction in California is between $7,500 and $10,000, according to Mothers Against Drunk Driving (MADD). This does not include lost pay, medical costs, vehicle damage, personal injuries or additional penalties. If the accused wants to hire a lawyer who isn’t a public defense attorney, the costs are even higher.
 
“Normally, we charge between $5,000-$10,000 to represent a drunk driver, depending on the circumstances,” said Spiegel, who has represented drivers in more than 400 DUI cases. “So a $99 DUI defense sale is unheard of for a firm like ours – but desperately needed in this economy. Sometimes good people do bad things – or are accused of doing bad things – and this sale gives them the opportunity to have solid representation at a rate anyone can afford.”

The $99 Cyber Monday DUI sale is limited to the first three eligible people who call the SLG Criminal Law Group at (213) 236-3660 after 9 AM on Monday, November 28th. Misdemeanor DUIs only, rate does not include trial. Drivers whose charges involve personal injury, property damage, reckless endangerment and other special circumstances are not eligible for the promotion, nor are drives who have had multiple DUI convictions in the past.
 

No comment necessary…..
 

The latest news fresh from the front lines of MADD’s "War on Drunk Driving":

DUI Cases in Jeopardy After Richmond County Deputy Admits Falsifying Readings

Richmond County, GA. Nov. 19 – The forced resignation of a deputy assigned to the DUI task force could affect the prosecution of hundreds of cases, according to those in the legal community.

Erik Norman faced mandatory resignation from the Richmond County Sheriff’s Office on Oct. 19 after a prosecutor reported that Norman told her he had falsified readings from a hand-held alcohol-testing device.

Norman told the department’s internal affairs division that he had done it only “once or twice” but couldn’t recall exactly which cases were involved. Norman’s credibility is gone now, no matter how many times he falsified readings, said Augusta attorney Robert “Bo” Hunter, who prosecuted drunken driving cases as the Richmond County State Court solicitor from 1988 to 1996… Even worse, Hunter said, is that there probably were people charged with driving under the influence who shouldn’t have been.

Norman, hired as a jailer in July 2002, was transferred to the DUI task force in March 2009. An accurate count of his DUI convictions cannot be made through court records, but during his time on the task force, he arrested an estimated 250 to 400 people.

State Court Solicitor Charles Evans said his office has 62 pending DUI cases in which Norman was the arresting officer. Each will have to be judged on its merits to determine whether to continue prosecuting them as DUIs. If necessary, the office will bring in Norman as a trial witness, Evans said.

The Georgia Peace Officer Standards and Training Coun­cil is investigating to determine whether Norman can keep his certification, said Ryan Powell, its director of operations. Unless he is arrested on felony charges or his certification is suspended, Norman is free to work as an officer, Powell said.

Falsifying evidence is a felony – making false statements – but prosecuting Norman for it would be difficult, District Attorney Ashley Wright said. A prosecutor would have to prove in which case Norman falsified the results, and there is no way to uncover those cases without Norman’s admission. He claimed he didn’t know which cases were falsified…

Do you really think this Georgia deputy is the only cop out there falsifying breathalyzer readings to justify his DUI arrest? And by the way, notice Deputy Norman’s sterling qualifications to investigate and arrest citizens for drunk driving:  He was hired in 2002 to be a jailor — and after seven years of guarding jail cells, he was transferred directly to the DUI task force.  Do you still think DUI cops are highly trained and qualified?

I’ve posted repeatedly in the past about the double standard when it comes to cops who drive drunk.  See, for example, Guarding the Guardians, The Blue Cover-Up, The DUI Double Standard, The DUI Double Standard II and The Thin Blue Line. 

The following news story from a couple of days ago is just another example of this pervasive coverup…..

PCB Officer’s DUI Charge Dismissed

Panama City, FL.  Nov. 14  – A DUI case against a former Panama City Beach police officer has been dismissed because no one could legally prosecute the charges before the defendant’s right to a speedy trial expired.

According to statements made at a Nov. 8 hearing, the 14th Judicial Circuit State Attorney’s Office declared a conflict in the DUI case against David Lee Walker in August. As is procedure when a conflict of interest is declared, the prosecutors in Glenn Hess’ office asked Gov. Rick Scott to intervene and appoint another prosecutor to handle the case. The 1st Judicial Circuit was supposed to take over the case, but they did not receive formal notice from the governor’s office in time for an Oct. 31 trial, according to statements at last week’s motion hearing.

Walker’s defense team did not waive the speedy trial requirements under Florida law and showed up Oct. 31 ready to go a trial, officials said. No one showed up to prosecute the case.

“From time to time we would make inquiries with the governor’s office; it was never assigned,” Bob Pell, the head of the misdemeanor division with the 14th Judicial Circuit, said during the Nov. 8 hearing. “I feel that our circuit has done everything we can possibly do to move the case along.”

At the end of the hearing, Judge Joe Grammer dismissed the charges against Walker. Although the case has been dismissed, prosecutors could appeal, officials said. The 1st Judicial Circuit did eventually get official notification from the governor’s office and sent a notice to Grammer.

The notice arrived the day after he dismissed the case, Grammer said.

Walker and another officer repeatedly sought “professional courtesy” from Trooper Wesley Harsey after Harsey stopped Walker for allegedly driving 50 miles per hour on Front Beach Road after leaving the bar on July 21, according to investigative reports. Walker offered to leave his car parked at the scene and take a taxi home, but Harsey told him he should have done that before they left the bar, the reports said.

Walker initially said he had only two beers, but during the conversation, he eventually admitted to drinking eight or nine beers that night, according to the reports. Ultimately, he refused to submit to a breath test, and Walker resigned shortly after the arrest…

"No one showed up to prosecute the case".  Strange how the system just can’t seem to get it together when it’s a cop facing DUI charges…
 

The latest example of what I’ve called "The DUI Exception to the Constitution"….

Officer Who Kicked in Door for DUI Has Immunity

Vienna, VA.  Nov. 9 – A police officer is not liable for a civil rights violation for kicking in the door of a man’s home to arrest him for drunken driving, in a new case from the 4th U.S. Circuit Court of Appeals.

On Oct. 2, 2004, Vienna police officer M.A. Reeves followed Alan J. Cilman from a sports bar to his home on suspicion of drunken driving. Cilman got out of his car, asked the officer to leave his property, went into his home and locked the door. Reeves called for back-up and then kicked in the door to Cilman’s home when he wouldn’t respond.

Reeves arrested Cilman not for drunken driving, but for being drunk in public and evasion without force.

All criminal charges against Cilman were dismissed.

When Cilman sued Reeves, Alexandria U.S. District Judge Gerald Bruce Lee said Reeves was liable as a matter of law under 42 U.S.C. § 1983 and Va. Code § 19.2-59 for the warrantless entry…

In an unpublished per curiam opinion in Cilman v. Reeves a 4th Circuit panel said the law on warrantless entries in this kind of case is unclear, and Reeves deserved the benefit of the doubt, and qualified immunity…

Hmmm….In other words, the cop violated the Constitution, but…well, it was a DUI case, right?  

And by the way, if the cop broke into Climan’s home to arrest him for drunk driving, why did he arrest him for being drunk in public (no driving) instead?

(Thanks to attorney Bob Battle of Virginia.)
 

Piercing the veil of reliability in DUI investigations…..

Evidence Suppressed in Lawmaker’s DUI

Philadelphia, PA.  Nov. 2 – A state prosecutor is criticizing a Philadelphia judge’s decision to suppress evidence in the arrest of a Philadelphia lawmaker on suspicion of drunken driving.

The Philadelphia Daily News reports that the DUI charge against Rep. Cherelle Parker will be dropped if Judge Charles Hayden’s decision Tuesday isn’t appealed.

The state attorney general’s office handled the case at the request of Philadelphia District Attorney Seth Williams.  Deputy Attorney General Marc Costanzo says he’s surprised a judge found two police officers less credible than someone who failed a breath-alcohol test. He said his office will decide whether to appeal within 30 days.

Hayden says he’s troubled that one officer changed her testimony, while another testified that only about half the people he’s arrested for DUI were found to be intoxicated.

The only thing I find surprising about this is that the cop admitted it. 
 

The latest in the continuing saga of the Houston grand jury’s probe of the D.A.’s cover-up of defective Breathalyzers…

Prosecutors, Court Reporters Face Contempt Charges in Grand Jury Probe

Houston, TX.  Nov. 1 – Two Harris County prosecutors are facing contempt charges after a judge learned members of the DA’s office were given information that may contain official transcripts from secret proceedings of a grand jury that is investigating the district attorney’s office, court records show.

Assistant district attorneys Carl Hobbs and Steve Morris, along with court reporters Javier Leal and Katherine Chagaris, have been summoned to appear before Judge Susan Brown’s court at 9 a.m. Monday.

According to a motion requiring the four to attend the hearing, the prosecutors and court reporters must show why they should not be held in contempt and sanctioned by the court for violating orders issued by Brown.

"It is now come to this court’s attention that members of the Harris County District Attorney’s Office may be in possession of official transcripts of testimony from witnesses who appeared before the grand jury," according to a motion issued by Brown and obtained by the Houston Chronicle Tuesday.

Hobbs and Morris, both senior prosecutors with the DA’s office, are two of three prosecutors who were excluded on Oct. 18 from listening to witness testimony by the grand jury, which also appears to be investigating the Houston Police Department troubled mobile breath alcohol testing vans. That day, when defense attorney Brent Mayr, a critic of the vans, was called to testify, the grand jury ejected the two along with the general counsel for the DA’s office, John Barnhill, and threatened to have the bailiff arrest them if they did not leave, according to court records.

Brown revealed last Wednesday that a Harris County grand jury is investigating possible criminal conduct by the district attorney’s office and disqualified the office from participating in the ongoing investigation into the testing vans.

The judge made the disclosure in an order granting the grand jury’s request for a temporary special prosecutor. She appointed attorneys Stephen C. St. Martin and James Mount to assist the panel. Both are former veteran assistant district attorneys.

Grand jury proceedings are secret, but suspicions by defense attorneys involved in the case and court records have indicated that the panel’s investigation centered on issues surrounding the breath alcohol-testing vehicles – known as BAT vans – and possibly the DA’s office’s involvement.

If the prosecutors or court reporters are found guilty of the misdemeanor contempt charges they could face up to a $500 fine and up to six months in jail.

"Possible criminal conduct by the district attorney’s office"?  If only some prosecutors worked as hard at finding the truth as they do at hiding it… 

(Thanks to Ari Weiner.)
 

My past two posts have dealt with the Houston grand jury investigating cover-ups of breathalyzer problems by the District Attorney’s office.  In related developments in this fascinating saga, a defense attorney representing a client charged with drunk driving has subpoenaed the District Attorney for the trial:

Harris County District Attorney Called to Testify in DWI Trial  

Houston, TX.  Oct. 28 – A day after the revelation that her office is the target of a grand jury investigation, District Attorney Pat Lykos was called to testify Thursday in an ongoing DWI trial because she made public comments regarding the accuracy of results from the Houston Police Department’s troubled mobile breath-testing vehicles.

"The reliability of the BAT [breath alcohol testing] vans has come into serious question by the chief prosecutor of Harris County herself," declared Jackie Carpenter, a defense attorney in the DWI trial. "If they’re so unreliable, then why are you prosecuting someone with evidence you deem unreliable?"

Reversing an earlier decision to compel Lykos to testify, County Court at Law judge John Clinton ruled Thursday that the top prosecutor’s opinions on the breath-alcohol testing vehicles – known as BAT vans – are relevant in the DWI trial.

An assistant district attorney, one of more than 240 under Lykos’ authority, is handling the misdemeanor case. If Lykos appears, she could be cross-examined by one of her own prosecutors.

The testimony could affect dozens of past and future DWI cases that relied on evidence handled by the testing equipment in the vans.

Even more serious is the possibility that Lykos and other prosecutors had doubts about the tests’ accuracy while prosecuting past DWI cases but did not alert defense attorneys…
 

Fascinating stuff.  The public is finally getting a look behind the so-called "state of the art" magical machines used to convict citizens.  The readings from these machines have been deemed so reliable that, by law, they are deemed sufficient "proof beyond a reasonable doubt" to convict.  As I’ve been saying for years, however, these machines are little more than "pseudo-science".  See, for example, How Breathalyzers Work (and Why They Don’t), Why Breathalyzers Don’t Measure Alcohol and Report: Breathalyzers Outdated, Unstable, Unreliable.
 

Following up on yesterday’s post (Grand Jury Investigates Breath Test Accuracy – Throws D.A. Out), here are the latest fascinating developments in a Houston grand jury’s investigation into cover-ups by police and prosecutors of defective breath-alcohol machines.  

Keep in mind what we’re talking about here: this is the District Attorney’s office –charged with finding truth and achieving justice — trying to ensure convictions of possibly innocent citizens by hiding that truth from the public.  And this is a grand jury – normally used as a tool by the D.A. — turning on their masters and throwing prosecutors out of the hearings.

Four Harris County Assistant DAs Subpoenaed in BAT Van Investigation

Houston, Oct. 25 - There are new developments in our investigation into how the Houston Police Department and the Harris County District Attorney’s Office handled complaints about unreliable DWI testing. It’s a story we’ve been following for months and now more evidence that a secret grand jury is also trying to get to the bottom of just who knew what and when.

Four Assistant District Attorneys Tuesday were ordered to testify to the grand jury and, to make it worse for the DA, a special independent prosecutor is about to be named.

The ADAs all tried DWI cases and likely know if supervisors downplayed faulty DWI tests. The grand jury is still meeting in secret, but it’s becoming clear they are zeroing in on a possible cover-up within HPD or the DA’s Office.

What is happening inside a Harris Co. Grand Jury room this month cuts right at the heart of how the DA prosecutes cases.

"This could be catastrophic. Anyone who’s been arrested involving these mobile vans could have their cases overturned," said KTRK Legal Analyst Joel Androphy.

With four ADAs and a current judge called to testify, it’s clear the grand jurors want to know what prosecutors knew about potentially bad DWI evidence, when they knew it and what their bosses told them to do about it.

"It’s not OK to cover up unreliable evidence; period," said Tyler Flood, a DWI defense attorney.

On Monday, Harris Co. District Attorney Patricia Lykos told Eyewitness News she never knew about the problems with the BAT vans until they came out in open court in July.

"The Houston Police Department Crime Lab has never notified us of any questions or any issues with respect to the BAT vans, and that includes as of today," Lykos said.

And that’s true if you listen very carefully. Officers from the crime lab never came to her office. But other police officers spoke up months earlier. She didn’t tell us about that.

In court testimony, one police officer testified he knew of issues a year before and told prosecutors about them more than once without questioning the admissibility of the evidence.

The lawyer for the whistle blower in the case says the DA isn’t telling the whole story.

"She should’ve kept her mouth shut," said attorney Chip Lewis.

But Lewis says the DA isn’t the only one who should be concerned; he’s convinced this grand jury will want answers from HPD as well.

"It’s clear to me that HPD broke the law. Whether it’s a civil law by retaliating on Amanda Culbertson or the criminal law of official oppression, I will let the grand jury make that determination," Lewis said.

With the addition of a special independent prosecutor, that grand jury investigation just got a lot more serious.

"You start with people who were the messengers, then work up to the supervisors and work your way up to determine if there was a cover-up," Androphy said.

Amidst all the claims of cover-up, none of it’s been proven and the DA continues to insist they did nothing wrong.

The special prosecutor has not been named, but once that person is on the job they will help the grand jury figure out if a crime has been committed.

Here’s a look at a timeline in the BAT van investigation:

     Our 13 Undercover investigations exposed maintenance problems with the BAT vans back in March.

     Emails we uncovered about the Breathalyzer accuracy prompted attorneys to challenge DWI cases connected to the vans.A hearing was held in July where

     Culbertson openly testified about the lack of response to the BAT van issues.

     In October, Harris County commissioners terminated a contract with Culbertson’s current employer to provide DWI testing in the county.

     Last Friday, Eyewitness News first reported that the grand jury appeared to be investigating how the DA’s Office and HPD handled reports of the BAT van                  problems.

     Today, we confirmed four prosecutors have been subpoenaed in that investigation.
 

And yesterday:

Prosecutors Named in BAT Van Case

Houston, Oct. 26 – State District Judge Susan Brown on Wednesday named attorneys Stephen C. St. Martin and James Mount as temporary prosecutors to assist a grand jury apparently investigating the Houston Police Department’s troubled mobile alcohol testing program.

The order appointing St. Martin and Mount, both former assistant district attorneys now in private practice, states that grand jurors are investigating “possible criminal conduct by members of the Harris County district attorney’s office.”

“After considering the grand jury’s request and the applicable law, the court finds the Harris County District Attorney and her office are disqualified from participating in the grand jury’s investigation,” Brown wrote.

Brown did not immediately rule on the grand jury’s request that its term, scheduled to end in late November, be extended.

The grand jury gained attention last week when it excluded prosecutors from listening to witnesses testifying in secret proceedings. On Tuesday the grand jury heard testimony from prosecutors under subpoena, providing further evidence that the panel is examining the role the DA’s office has played in cases involving breath alcohol testing vehicles known as BAT vans.

Stay tuned…. 

Hmmm….Maybe the citizens of this country are beginning to wake up to the fact that those infallible breath machines aren’t so infallible.  And prosecutors don’t like it.

Controversy in BAT Van Investigation

Houston, TX.  Oct. 21 – There are new questions about just what a grand jury is investigating after prosecutors were thrown out of the grand jury room.

In an incredibly rare move this week, the foreperson of a Harris County Grand Jury asked a bailiff to remove prosecutors so jurors could hear from a witness on their own about potentially faulty DWI tests.

13 Undercover first raised questions about the accuracy of the Houston Police Department’s so-called BAT [Breath Alcohol Test] vans, but now it’s the investigation into how those problems were handled that’s causing controversy.

For months, some of the people closest to HPD’s breath testing vans have told you and us that the vans are unreliable — meaning the roadside tests they do on alleged drunk drivers may not be accurate.

Now the controversy has spilled over into a grand jury investigation, and it’s become so heated that a prosecutor working for Harris Co. District Attorney Pat Lykos was thrown out of the grand jury room earlier this week under the threat of arrest.

Amanda Culbertson worked for HPD for four and a half years as one of the supervisors overseeing mobile breathalyzer machines known as the BAT vans. She quit when she says HPD’s poor maintenance was leading to unreliable test results.

But her real trouble started when she spoke out about it. After Culbertson told a judge about her concerns, the DA questioned her credibility and pushed the county to cancel a contract with her new employer, in essence firing her.

Culbertson told her lawyer Chip Lewis that the DA is targeting her.

"She has not only thought it herself, but been told by people very close to the fire that the District Attorney’s Office is after you," said Lewis.

This week a Harris County Grand Jury wanted to hear from Culbertson as well as Brent Mayr, a former prosecutor who previously alleged the DA is bullying Culbertson to force her silence.

"Clearly retaliation for these individuals expressing opinions that the DA’s office didn’t like," Mayr said on October 4.

When Mayr walked in to testify before the grand jury on Tuesday, the foreperson told prosecutors to get out. They wanted to hear from Mayr and Culbertson without a DA in the room.

"They obviously believe that the DA’s Office played a role in this case and that they can’t be independent," said KTRK Legal Analyst Joel Androphy.

While it is rare — and legal — the DA’s Office threw a fit. Court records show top assistants to the elected DA refused to leave the room until a bailiff threatened to arrest them. The DA tried to force a judge to let them back in, but it was denied. An appeals court said the same thing.

"The grand jury is a function of independent people from the community. It’s not supposed to be the vote of the DA’s office," said . "This is rare and it would happen one out of a hundred times that a grand jury would have the courage enough to basically say to the DA’s Office get out of here or you’re going to get arrested."

We tried to ask the DA about it Friday, but they refused repeated interview requests. We’d love to ask what they knew about the BAT van problems, when, and what they did about it. It may be the same thing the grand jury is looking at on its own; and it may be the reason the DA was so angry about being thrown out of a supposed independent investigation.

"It’s clear to me that the grand jury has questions about how this was handled from a law enforcement standpoint. Now, I don’t know if that’s specifically confined to how HPD treated her or if they have some beef with what the District Attorney’s Office did as well," said Lewis.

Androphy told us in cases like this it would be best for the DA to ask for an independent prosecutor, but the DA’s Office said they haven’t. It would’ve been one of the questions we asked if anyone at the DA’s Office would’ve been willing to join us for an interview, but no one was.

13 Undercover and Wayne Dolcefino exposed the potential maintenance problems with the BAT vans back in March. We found documents detailing electrical problems that kept some of the very expensive mobile breath vans from ever being used. We showed you emails showing some cops were worried it might affect criminal cases. HPD didn’t tell the DA’s Office.

Funny, when I was a Los Angeles Deputy D.A., we understood our duties as they are set forth in the Canons of Ethics:  the prosecutor’s job is not to win, but to seek truth and justice.  I guess times change….

(Thanks to Art Weiner.)
 

The crime is driving a vehicle under the influence of alcohol.  In other words, the corpus delecti of the crime is: (1) driving (2) a vehicle (3) under the influence of alcohol.  In most states, there is a 4th element: the driving must be on a public roadway.  Simple, right?  

Yes, but to be charitable, cops seem to have a problem with the concept of common sense.  For the "driving" element, for example, see Convicted of Drunk Driving – Without Driving, Alcohol on Breath + No Driving = DUI, State Supreme Court: DUI Doesn’t Require Driving and How to "Drive" Under the Influence While Sleeping.  

And for a few examples of what constitutes a "vehicle", see DUI on a Horse?, DUI on a Foot-High Toy Bike, DUI – While Walking a Bicycle, DUI in a Wheelchair, DUI on a Scooter and News From the Front (driving a Zamboni on an empty ice rink).

This is not a joke, folks, these are just a few of the "drunk driving" convictions in MADD’s "War on Alcohol"….oops, I mean "War on Drunk Driving".  And in the news a few days ago:

Nebraska Supreme Court: No DUI in a Private Driveway

Omaha, NE.  Oct. 18 – Jeffrey McCave was sentenced in a county court to thirty days in jail, two years of probation and a $1000 fine for listening to music in an undriven car parked on his father’s driveway while drunk. The Nebraska Supreme Court on Friday used the case to clarify that the charge of driving under the influence of alcohol (DUI) does not apply in a personal driveway.

When McCave did not listen to his father, John McCave, who told him to go away, the police were called. Officers arriving at the scene noticed McCave was drunk in a car and asked him to take a breath test. McCave refused, saying he had not driven anything. Officers proceeded to pile on charges.

"I guess I just inferred with the beer being in the car that him and the beer got there by the vehicle," Officer Benjamin Faz testified.

McCave was hit with DUI, refusing a breath test, possessing an open container of alcohol in a vehicle, trespassing and resisting arrest. The officers did not bother asking Susan McCave whether she had been the one to invite her stepson to the house that night.

Prosecutors argued that the DUI charge applies to a residential driveway because McCave had physical control of the vehicle and that he might have been about to leave. They also insisted McCave’s car was on public property because it partially overhung a sidewalk. The high court explained that DUI statues do not apply to a person on private property not open to public access…

The court blasted the prosecutor’s argument that McCave’s car was subject to the DUI statute because it was parked at least in part on public property.

"Nor do we think that the driveway’s characterization as private property without public access changed just because McCave’s vehicle overhung the sidewalk," Connolly wrote. "We do not believe the legislature intended to make a citizen drinking a beer while cleaning out his vehicle parked in his driveway guilty of a crime because the vehicle is overhanging the sidewalk."

The court also discarded the prosecution’s insistence that McCave was guilty of DUI simply because the police officer claimed the man had stated he was "leaving."

"Obviously, if McCave had committed an offense in front of the officers, they would have had grounds for an arrest," Connolly wrote. "But his statement that he was leaving, even if his hand was on the key in the ignition, showed only that he had considered driving but changed his mind."

The high court went on to blast the sloppy police work that led to McCave’s conviction.

"No witness reported that McCave was driving a vehicle at any time, and the officers did not pose this critical question to McCave or any witness," Connolly wrote. "Before officers invoke the power of a warrantless arrest, the Fourth Amendment requires them to investigate the basic evidence for the suspected offense and reasonably question witnesses readily available at the scene, at least when exigent circumstances do not exist. This is particularly true when the circumstances the officers encounter are consistent with lawful conduct. As previously discussed, it is not unlawful for a person to be intoxicated in a vehicle on private property not open to public access."

So let’s see….The guy was not driving.  He was on private property.  In fact, he was doing nothing wrong at all.  But he’s illegally arrested and charged with five criminal  offenses: drunk driving, refusing a breath test, possessing an open container (on private property), trespassing (!) and resisting arrest (for arguing that he hadn’t driven?).  I guess that’ll teach him respect for the law! 

Welcome to the "War on Drunk Driving".

(Thanks to Jerry Scott.)