DUI BLOG

In my previous post, I mentioned the growing phenomenon of the DUI "SuperCop" – officers who get MADD awards and departmental promotions from racking up the highest numbers of drunk driving arrests.  See More DUI "Super Cops"…and More Innocent Victims.  The accompanying news story was about two Chicago cops who had gotten caught framing innocent citizens to accomplish "SuperCop" status.  Now there’s a third, but this one manufactured evidence for the overtime pay…

Third Cop Accused of Trumping Up DUI Charges

Chicago, IL.  Feb. 27  –  Two Chicago men on Wednesday filed lawsuits against the city and a police officer they said trumped up DUI charges against them.

The separate federal suits allege that Town Hall District Officer Richard Fiorito violated the civil rights of James Dean Jr. and Shawn Rauch, the Chicago Tribune reported.

The men’s attorneys accuse Fiorito of manufacturing fake DUI and other traffic charges against motorists in a scheme to garner the extra overtime pay that comes with making court appearances on cases. 

 
DUI defense attorneys have been aware of this dirty little secret for a long time.  Those who are righteously arrested for drunk driving tend to end up pleading guilty.  But those who are innocent want to fight the charges in court — requiring the arresting officer to make long court appearances to testify….and rack up time-and-a-half pay, often in the tens of thousands of dollars per year. 

It’s far more lucrative to arrest innocent citizens than guilty ones.
 

As I’ve documented in past posts, MADD’s "War on Drunk Driving" has been instrumental in the gradual erosion of our Constitution.  See The DUI Exception to the Constitution.  But the hysteria has created other problems as well.  One of these is the advent of the "Super Cop" — officers who receive MADD awards and promotions as a result of high numbers of drunk driving arrests.  See SuperCops…and SuperCons, Another DUI SuperCop and The Latest DUI SuperCop.  And as I’ve mentioned in the past, the results have been predictable…

2nd Top DUI Cop Accused of False Arrests

Chicago, IL.  Feb. 23  - Another Chicago cop is suspected of framing drivers with false arrests for drunken driving, the Chicago Sun-Times has learned.

Joe D. Parker, 59, an officer in the Chicago Police Department’s Traffic Enforcement Unit, has been placed on desk duty pending an internal police investigation.

The Cook County state’s attorney’s office, which is also investigating Parker, has moved to dismiss dozens of DUI arrests he made, according to sources who said investigators began scrutinizing the 23-year police veteran’s DUI arrests after video from his squad car did not appear to match an account he gave in an arrest report.

The scrutiny over Parker’s DUI arrests comes almost a year after another Chicago cop, Officer John Haleas, was charged by Cook County prosecutors with perjury, official misconduct and obstructing justice, accused of failing to take important steps in making a DUI arrest in 2005. Prosecutors said Haleas failed to perform a field-sobriety test and lied in his reports. As a result, they dropped more than 50 cases stemming from DUI arrests made by Haleas.

The criminal case is still pending against Haleas, who was honored three times by the Schaumburg-based Alliance Against Intoxicated Motorists as the cop with the most DUI busts in Illinois.

Parker also made the private organization’s top DUI cop list when he made 153 drunken-driving arrests in 2006 — fourth-highest among Chicago officers that year, according to the group.

So how can you frame an innocent citizen if the breathalyzer shows ".03%"?  Simple.  You write in your arrest report, "The suspect refused to submit to breath or blood testing".  Now it’s the cop’s word against an accused drunk driver.  Guess which one is going to be believed?  And guess which one is going to get a longer jail sentence and license suspension for "refusing"?
 

This one pretty much speaks for itself, too:

Victim’s Family: Wrong man Charged

Lake County, CA.  Feb. 19  –  It’s very unusual in a manslaughter case for a victim’s family to speak out for the defendant. But that’s what’s happening in the fatal boat crash case in Clear Lake…

Lynn Thornton died after a horrible boat crash in April of 2006. She and her friends were wrapping up a sunset cruise — it was a still night with little wind — when a power boat roared out of the darkness, launching over the sailboat, snapping the mast and crushing the cabin.

The person driving the power boat was the No. 2 man in the Lake County Sheriff’s Department, Russell Perdock.

"Mr. Perdock just slammed into ‘em, he wasn’t paying attention and it resulted in the death of my sister," said Thomsen.

However, prosecutors ignored the speed of Perdock’s boat. He admitted going as fast as 45 miles an hour, and an independent investigation found that Perdock had broken the law by failing to maintain a safe speed.

They charged Thornton’s friend, who happened to be steering the sailboat at the time of the crash. He had been drinking, and prosecutors claimed the boat’s running lights were off…

In all, the (TV News) I-Team identified nine people — on the sailboat or on shore — who say the sailboat’s running lights, cabin lights, or both, were on.

Still, the man steering the sailboat at the time, Bismarck Dinius, faces felony charges of manslaughter and boating under the influence…

From the beginning, Perdock, the owner of the power boat, has refused to answer our questions and he declined to be interviewed for this report.

Now, the victim’s family members are letting their opinions be known.

"Russell Perdock got away with murder," said Thomsen.

Thornton’s brothers and sister-in-law have sent letters to the judge in the case, saying, "We are convinced beyond any doubt that Russell Perdock, and only Russell Perdock, is responsible for Lynn’s death…She would not have wanted the wrong person to be prosecuted…It’s obvious Perdock’s ridiculous speed was the cause of Lynn’s death."

(Thanks to David Baker)

In the This-Is-Getting-Ridiculous department:

Blood Test for Marijuana Unreliable for DUI Penalty

Lexington, KY.  Jan. 17  - Once again, a bill that seeks to punish prior use of a controlled substance with an automatic DUI conviction is before the Kentucky legislature.

Like its predecessors, Senate Bill5 cleverly attempts to bootstrap an ill-advised rule regarding all drugs onto a rule created for the purpose of measuring alcohol impairment. Under SB5, a driver who tests positive for traces of marijuana can be convicted of "driving under the influence" even if that driver is unimpaired at the time of arrest.

While such laws do little to actually make roadways safer, they do send many innocent people to jail and saddle them with criminal records for the rest of their lives. Current Kentucky DUI law requires prosecutors to prove that a suspect was impaired while driving. SB5 seeks to circumvent current evidentiary standards by removing this requirement. If lawmakers want to clog court dockets, cost taxpayers more money and make it tougher for Kentuckians to find and retain employment, then this is the bill to support…

Moreover, the test referred to in SB5 is not a test for marijuana impairment, but merely a test for marijuana’s presence, which is not what DUI laws are supposed to punish.

The effect and perhaps even the aim of legislation like SB5 is to punish prior drug use — predominantly marijuana use — by convicting drivers of DUI without scientifically reliable evidence that they were operating a vehicle while under the influence of anything.

"Zero-tolerance" laws are more than unjust; they are scientifically unsound, which is exactly why not one single state applies such a rule to alcohol. Furthermore, these laws are even less suited for marijuana, the traces of which are detectable by drug tests long after its intoxicating effects have worn off…

A driver with high levels of THC (the active psychotropic ingredient in marijuana) in the blood may not be impaired in any manner if time has passed since the substance was last used. The inability to accurately measure marijuana impairment is why both the National Highway Traffic Safety Administration and the National Institute on Drug Abuse have stated that marijuana impairment testing via blood sampling is unreliable.

Driving under the influence of any substance is dangerous and should not be tolerated, but sending innocent people to jail for DUI using methods incapable of accurately measuring impairment is not the answer. 
  

(Thanks to Nathan Miller) 

In the no-comment-necessary department….

Man Charged With Drunk Driving on a Bicycle

Warwick, RI.  Feb. 16  -  Police have charged a man on a bicycle with driving under the influence.

Police said Gary Merritt, 49, was riding his blue Roadmaster bicycle on Sunday in the middle of the travel lane at the intersection of Warwick Avenue and Airport Road.

According to police, Merritt went through a red light and didn’t have any lights on his bike.

 
For examples of other dangerous criminals scooped up in MADD’s dragnet, see my posts DUI – While Walking a Bike, Felony Bicycle DUI, DUI on a Foot-High Toy Bike, DUI on a Horse?, Drunk Driving on a Lawn Mower,  DUI in a Wheelchair? and Drunk Driving on a Zamboni.   
 

All states now have two drunk driving laws: (1) driving under the influence of alcohol (aka “DUI”, with local variations, such as “driving while intoxicated” or “DWI”), and (2) the so-called per se law of driving with .08% or higher blood-alcohol concentration (BAC). Unless you refuse to take a chemical test, you will be charged and prosecuted for both offenses — and can be convicted of both.

The breath machines (commonly — and inaccurately — referred to as “Breathalyzers”) used to obtain the BAC are, obviously, critical to the drunk driving case. As for the per se offense, the only evidence of the crime is the machine: if the thing says .08% or higher and the jury believes it, the defendant is guilty.  In effect, if you are accused of driving with .08% BAC, you will face "trial by machine" — and you will not be able to confront your accuser.

It gets worse….Even as to the DUI charge, the readings will be considered presumptive: if the BAC is .08% or higher, the jury will be instructed by the judge that the defendant is presumed to be guilty — and he must be found guilty unless he can prove his innocence.  See “Whatever Happened to the Presumption of Innocence?”.

These machines are all-important: they determine guilt or innocence. But despite the manufacturers refusing court orders to disclose the software that runs the machines (see What Are Breathalyzer Manufacturers Hiding?), they continue to assure us that the things are “state of the art”.  So how accurate are they?

Well, as I’ve written in the past, not very.  Just a few examples:

Breathalyzers — and Why They Don’t Work
Close Enough for Government Work
The Mouth Alcohol Problem
Breathalyzers: Why Aren’t They Warranted to Measure Alcohol?
Driving Under the Influence of….Bread?
Warning: Breathalyzer in Use
Breath Fresheners and Breathalyzers
Diabetes and the Counterfeit DUI
Why Breathalyzers Don’t Measure Alcohol
Can Body Temperature Affect Breathalyzer Results?
The Effect of Anemia of Breath Tests
GERD, Acid Reflux and False Breathalyzer Results
Driving Under the Influence of….Gasoline?
Do Breathalyzers Discriminate Against Women?
Breathalyzer Inaccuracy: Testing During the Absorptive State
Breathalyzer Inaccuracy: Post-Absorptive
Breathalyzer Inaccuracy….It Gets Worse
Warning: Smoking Can be Hazardous to Breathalyzer Results
How to Fool the Breathalyzer
Breathalyzer Manufacturers Won’t Tell How They Work

State of the art? Far from it, yet thousands of American citizens continue to be accused and convicted by these machines…..

I’ve posted in the past about various problems, such as fermentation and coagulation, in analyzing human blood samples for alcohol content.   But human error in the lab is just as insidious.  I mentioned in an earlier post one of my firm’s cases in which we had our client’s blood sample analyzed for DNA — which proved that the blood tested was not our client’s.  See How Do You Know the Blood They Tested Was Yours?  Human error in the crime lab happens more often than is appreciated — and is extremely hard to detect.

Following is another recent example of a lab screwup that almost sent an innocent man to prison for a long stretch.  Fortunately, one of those "obstructionist" defense attorneys had the blood restested, forcing the prosecution to have it retested as well.  The blood-alcohol content, which had been reported as .19% — over three times the legal limit — was in fact .00%.

Homicide Charge Dropped Following Blood Test Mistake

As most of you know, MADD has focused on ignition interlock devices (IIDs) as the answer to the drunk driving problem in America.  The organization has even widely trumpted the device as the way to "literally wipe out drunk driving in the United States".  MADD Announces End to Drunk Driving: A Reply.  But there appears to be a growing recognition that the Empress is wearing no clothes…

  
DUI Penalty Should Fit Facts, Not Beliefs

Greenwood, MS.  Jan. 25 – Mothers Against Drunk Driving has done much over the years to reduce the incidence of drunk driving and the terrible consequences that can come from it…

The group, though, has hit somewhat of a plateau. For at least a decade, the numbers have hardly budged. Somewhere around 13,000 people — give or take a few hundred — die every year in an alcohol-related crash in the United States.

When a well-intended advocacy group hits a wall, the danger is that it will go overboard with heavy-handed proposals. That is the case with MADD’s latest push to get judges to order all convicted DUI offenders, even first-timers, to outfit their cars with ignition interlock devices.

The devices aren’t foolproof, however. Despite the efforts of engineers to outwit the ways that a drunk driver might try to circumvent one, MADD’s own statistics put the devices’ effectiveness at 64 percent…

Yet, that seems to be MAAD’s big push this year. Only eight states mandate or allow judges to order ignition interlock devices for a first offender. MADD wants it be an option in every state. The advocacy group has gotten bills to that effect filed in legislatures all across the country, including Mississippi.

As dangerous as drunk driving can be, this remedy still rings of being overblown. It adds another layer of punishment to a crime that the courts are required to take seriously, thanks to mandatory minimum sentences that have been instituted over the years.

Mississippi, like most of the country, already has stern DUI laws on the books that are designed to dissuade those who get caught one time from repeating their mistake…

If, after serving that penalty, a driver gets a second DUI, he either is incapable of learning from his mistakes or he has a drinking problem. Either way, employing an ignition interlock device then becomes a reasonable response to protect the public from what appears to be a persistent threat to its safety.

MADD, though, sounds as if it wants to treat all DUI offenders as if they are repeat abusers. In fact, that’s part of its argument for the interlock ignition proposal. Citing a 13-year-old research study, it claims that on average a person will drive drunk 87 times before he is caught and convicted the first time.

The number sounds inflated. Even if it were close to accurate, though, MADD’s response turns our system of jurisprudence on its head. It presumes a person is guilty of criminal misconduct for which there is no record and penalizes the person accordingly. Is there another crime, large or small, for which that is the case?

Punishment should fit the crime for which there is evidence to prove guilt. It shouldn’t be based on the premise that one conviction is an automatic admission to previous violations of the same law.
 

Hmmm…Interesting concept.
 

I’ve posted stories over the past week about what happens to cops, prosecutors and judges when they’re arrested for drunk driving — or, more accurately, what doesn’t happen.  Following is yet another example of the prevalent DUI double standard:

Plenty of Blame to Go Around in Tarrant Judge’s DWI Case

Dallas, TX.  Jan. 29 – Tarrant County Judge Elizabeth Berry was stopped for speeding last year in Alvarado, south of Fort Worth. She refused to take a field sobriety test, a breath test or a blood test, so a municipal judge signed a search warrant authorizing a blood test against her wishes.

Last week, after a three-hour hearing, Judge Robert Dohoney ruled that the results of the blood test can’t be used against Berry because the arresting officer’s supporting affidavit was too vague.

Too vague?

It said Berry was driving 92 miles an hour, appeared confused and unusually quiet, had eight beer bottles on the floorboard of her SUV and the smell of alcohol on her breath…

No comment necessary.

(Thanks to Ken Sharp)