DUI BLOG

I’ve written in the past about the increasingly common practice of cops to pin DUI suspects down and forcefully withdraw blood from them.  In some cases the needle is wielded by medical staff — and in others by the cops themselves.  See Taking Blood by Force, Forced Blood Draws by Cops in Back Seat, Forced Blood Draws by Cops Spreading and Forced Blood Draws by Cops: Constitutional?  

How far will the courts permit these kinds of police state tactics?  One state supreme court has just drawn the line:
 

Illinois Court Blocks Forced Draw From Motorist

Chicago, IL.  April 16 – An increasing number of states allow police to use any level of force needed to take blood from a motorist accused of driving under the influence of alcohol (DUI). In Ohio and Texas this procedure is explicitly authorized by statute. In Washington, the state Supreme Court decided to sanction the practice on its own authority. Last Tuesday, the Illinois Court of Appeals was unwilling to take that extreme step.

A three-judge panel upheld a trial court’s determination to suppress the evidence created when police held Jacqueline Farris down and forcibly drew her blood. On May 12, 2009 at around 10:30pm, Officer Kevin Orms arrived at the scene of an accident in the village of Bradley and found Farris behind the wheel of one of the vehicles involved. She smelled of alcohol. Orms had her taken to the hospital where he asked for consent to draw her blood. Farris refused. Officer Orms then ordered a nurse to take the blood by force. Three personnel were required to hold Farris down because she resisted.

Lab results showed the blood alcohol content (BAC) of the Farris sample was estimated at 0.285, but a lower court threw out the evidence as inadmissible. Under state law, forcible blood extraction is only authorized when a driver causes death or the personal injury of another driver, passenger or pedestrian.

Prosecutors argued that the officer had probable cause to suspect Farris of being drunk, and there was not time to obtain a warrant before the alcohol would dissipate. In agreeing with the lower court, the appellate majority cited a 2005 state Supreme Court precedent that allowed testing without consent in cases of death or injury but did not touch on cases where no injuries occurred.

"In Jones our supreme court was quite clear that there is no practical need for physical force in obtaining bodily fluid samples since the Vehicle Code eliminates any advantage a DUI arrestee might hope to gain from refusing chemical testing," Judge William E. Holdridge wrote for the majority. "As the Jones court noted, the defendant’s refusal to comply with the request for a sample, in and of itself, is sufficient to justify a statutory summary suspension of the defendant’s driver’s license, the purpose of which is to protect the public from intoxicated motorists."  People v. Farris.

This court prohibited forced blood draws in a medical setting.  Other courts, however, have actually approved the forceful extraction of blood by the cop himself — even when done in the back seat of a patrol car.  See, for example, Would You Want a Cop Taking Blood From You?
 

We all know the impact the Super PACs are having on who will be representing us in our state and national governments.  Most senators, congressmen, governors, etc., are now pretty much bought-and-paid-for by Big Money’s deep pockets.  This is largely thanks to the U.S. Supreme Court’s recent decision which found that financial limits cannot be placed on them.  Apparently, the Court feels that corporations are "people", too, and therefor have a constitutionally-guaranteed right of free speech.  In other words, corporations and fat donors dumping tons of money on political candidates are protected by the Bill of Rights!  

This, of course, opened the floodgates:  Big Money is now busily exercising their newly-discovered "free speech" by  buying up judges, too….

Super PACs, Donors Turn Sights on Judicial Branch

Orlando, FL.  Mar 29 – Just before sunset on a recent evening, scores of lawyers in dark suits and polished loafers streamed into the swanky 18th-floor ballroom of a downtown high-rise here. They sipped chardonnay and nursed Heinekens, munched on cheese cubes and made small talk.

The invitation to the event had asked for a “suggested contribution” of $500 to each of three candidates, who were now mingling sheepishly among the crowd. They were no ordinary politicians. In fact, they weren’t politicians at all, but rather Florida Supreme Court justices. Each has been in office since the 1990s, each retained by voters overwhelmingly in previous elections, and each now reluctantly campaigning — for the first time.

 While deep-pocketed super PACs and ultra-wealthy donors have attracted plenty of attention in the presidential contest this year, they are also making waves further down the political food chain. The mere possibility that a rich benefactor or interest group with endless amounts of money could swoop in, write massive checks and remake an entire court for ideological reasons has prompted judges here in Florida and elsewhere to prepare for battles they never expected to fight.

The three justices sipping water and shaking hands in the ballroom decided months ago that they needed to campaign early and hard. They saw two of their colleagues targeted in 2010 after the court refused to allow a ballot measure opposing a key provision in President Obama’s health-care plan. They knew the organizers of that effort, angry about what they call “judicial activism,” had promised to step up their campaign and had formed a political organization that by law can raise unlimited money.

The judges were less than excited about having to ask people for money.

“It is almost embarrassing to be doing it,” Justice Fred Lewis said…

Those challenging the judges say their actions offer a way to inform the public and hold the judiciary accountable. The judges say they welcome accountability but want to protect the independence of the bench.

Like judges elsewhere, those in Florida remain rattled by what happened two years ago in Iowa, where three state Supreme Court justices who had upheld a ruling in favor of same-sex marriage lost their jobs after a vitriolic million-dollar campaign to unseat them — money coming almost entirely from outside the state. In the preceding decade, not a single dollar had reportedly been spent on Iowa’s high court elections…

Judicial elections have long drawn the interest of wealthy benefactors, business and labor groups, and trial lawyers, but watchdog groups say they are particularly troubled by a new trend: The universe of big donors has grown smaller and more concentrated.

In a 2010 study that examined 29 judicial races, the watchdog group Justice at Stake found that the top five spenders averaged $473,000 apiece, while all other donors averaged $850. In addition, loopholes in disclosure laws gave those big donors ways to spend money “in substantial secrecy,” the report found.

“Outside forces are becoming a bigger deal,” said Roy Schotland, a Georgetown University law professor and expert on judicial elections. “We’re seeing more takeover of the races from the outside.”

Schotland said state judicial races are increasingly becoming “floating auctions,” in which special-interest groups focus money and manpower in states where they can upend judges they don’t like. “The justices are like sitting ducks,” he said…

I wonder what the going price is for a judge?
 

And I thought only cops and judges got special handling when they drive drunk….

On the Road Again: Obama’s ‘Drunk Driving’ and Illegal Immigrant Uncle Allowed to Drive Again After Hardship License is Approved 

Boston, MA.  April 3 –Just a week after President Obama’s uncle pleaded guilty to drunk driving and surrendered his driver’s licence, he’s back behind the wheel.

Onyango Obama, 67, was approved for a ‘hardship licence’ yesterday, which allows him to drive in Massachusetts from noon to midnight.

The Boston Herald reported that Obama, the half brother of the president’s father, convinced a Registry of Motor Vehicles panel that an inability to drive would adversely affect his job as a liquor store manager.

And, despite his status as an illegal immigrant, his request was approved…

Obama, of Kenya, is also appealing a deportation order that dates to 1992, when he failed to renew his application to remain in the U.S.

The drunken driving charge will be dismissed if he stays out of trouble for a year, officials said.

Obama was arrested in Framingham in August after a police officer said he made a rolling stop at a stop sign and nearly caused the officer’s cruiser to crash into his sport utility vehicle.  Once pulled over, the DA said Obama’s speech was slurred, ‘his eyes were red and glassy and there was an odor of alcohol coming from inside the motor vehicle.’

Obama then failed several field sobriety tests and his blood alcohol was almost twice over the legal limit, reports the Herald.

It must be nice to be the uncle of the President….
 

I’ve written in the past about how cops have a disturbing tendency to destroy or "lose" critical evidence in drunk driving cases.  See, for example, Why Do Police Destroy DUI Evidence?, Why Do Police Erase DUI Videotapes? and Why Do police Always Destroy Breathalyzer Evidence?.  Destroying or losing evidence is, of course, a convenient way to make sure there is nothing to contradict the police version of the facts.

The issue of immediate destruction of breath samples — which can be easily and cheaply saved for later reanalysis by the defense — was raised a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state reversed the conviction:

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

How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a “field crimper-indium encapsulation kit” was readily available, cheap and approved by the California Department of Health Services.

So why isn’t the evidence saved in DUI cases today?  Because the Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:

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

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

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

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

 I’ve discussed in the past how difficult it is (1) to recognize and identify whether a person’s driving ability is impaired by marijuana, and (2) to prove with observable and chemical evidence the existence of that impairment.  See, for example, DUI Marijuana: Does Marijuana Impair Driving? and Driving + Trace of Marijuana = DUI.

The following news story does an excellent job of highlighting some of the issues of a growing problem:
 

New Wrinkle in Pot Debate: Stoned Driving

Denver, CO.  March 18  – Angeline Chilton says she can’t drive unless she smokes pot. The suburban Denver woman says she’d never get behind the wheel right after smoking, but she does use medical marijuana twice a day to ease tremors caused by multiple sclerosis that previously left her homebound.

"I don’t drink and drive, and I don’t smoke and drive," she said. "But my body is completely saturated with THC."

Her case underscores a problem that no one’s sure how to solve: How do you tell if someone is too stoned to drive?

States that allow medical marijuana have grappled with determining impairment levels for years. And voters in Colorado and Washington state will decide this fall whether to legalize the drug for recreational use, bringing a new urgency to the issue.

A Denver marijuana advocate says officials are scrambling for limits in part because more drivers acknowledge using the drug.

"The explosion of medical marijuana patients has led to a lot of drivers sticking the (marijuana) card in law enforcement’s face, saying, `You can’t do anything to me, I’m legal,’" said Sean McAllister, a lawyer who defends people charged with driving under the influence of marijuana.

It’s not that simple. Driving while impaired by any drug is illegal in all states.

But it highlights the challenges law enforcement officers face using old tools to try to fix a new problem. Most convictions for drugged driving now are based on police observations, followed later by a blood test.

Authorities envision a legal threshold for pot that would be comparable to the blood-alcohol standard used to determine drunken driving.

But unlike alcohol, marijuana stays in the blood long after the high wears off a few hours after use, and there is no quick test to determine someone’s level of impairment — not that scientists haven’t been working on it.

Dr. Marilyn Huestis of the National Institute on Drug Abuse, a government research lab, says that soon there will be a saliva test to detect recent marijuana use.

But government officials say that doesn’t address the question of impairment.

"I’ll be dead — and so will lots of other people — from old age, before we know the impairment levels" for marijuana and other drugs, said White House drug czar Gil Kerlikowske.

Authorities recognize the need for a solution. Marijuana causes dizziness, slowed reaction time and drivers are more likely to drift and swerve while they’re high…

Physicians say that while many tests can show whether someone has recently used pot, it’s more difficult to pinpoint impairment at any certain time.

Urine and blood tests are better at showing whether someone used the drug in the past — which is why employers and probation officers use them. But determining current impairment is far trickier.

"There’s no sure answer to that question," said Dr. Guohua Li, a Columbia University researcher who reviewed marijuana use and motor vehicle crashes last year.

His survey linked pot use to crash risk, but pointed out wide research gaps. Scientists do not have conclusive data to link marijuana dosing to accident likelihood; whether it matters if the drug is smoked or eaten; or how pot interacts with other drugs.

The limited data has prompted a furious debate.

Proposed solutions include setting limits on the amount of the main psychoactive chemical in marijuana, THC, that drivers can have in their blood. But THC limits to determine impairment are not widely agreed upon.

Two states place the standard at 2 nanograms per milliliter of blood. Others have zero tolerance policies. And Colorado and Washington state are debating a threshold of 5 nanograms.

Such an attempt failed the Colorado Legislature last year, amid opposition from Republicans and Democrats. State officials then set up a task force to settle the question — and the panel couldn’t agree.

This year, Colorado lawmakers are debating a similar measure, but its sponsors concede they don’t know whether the "driving while high" bill will pass.

In Washington state, the ballot measure on marijuana legalization includes a 5 nanogram THC limit.

The measure’s backers say polling indicates such a driving limit could be crucial to winning public support for legalization…

The White House, which has a goal of reducing drugged driving by 10 percent in the next three years, wants states to set a blood-level standard upon which to base convictions, but has not said what that limit should be.

Administration officials insist marijuana should remain illegal, and Kerlikowske called it a "bogus argument" to say any legal level of THC in a driver is safe.

But several factors can skew THC blood tests, including age, gender, weight and frequency of marijuana use. Also, THC can remain in the system weeks after a user sobers up, leading to the anxiety shared by many in the 16 medical marijuana states: They could be at risk for a positive test at any time, whether they had recently used the drug or not.
 

(Thanks to Andre Campos.) 
 

In my last post (Hundreds of DUI Convictions in Doubt: Inaccurate Breathalyzers), I featured a news story about widespread breathalyzer failures in San Francisco.  I also mentioned that this was not an isolated situation, pointing out massive failures of the devices in other cities across the country.

In a follow-up yesterday, the San Francisco Chronicle has confirmed this:

SF Not Alone in DUI Test Flaw, Dropped Convictions

San Francisco, CA.  Mar. 12 – In facing the possible loss of hundreds of drunken-driving convictions because of a testing controversy, San Francisco is not alone.

District Attorney George Gascón said last week that his office was reviewing cases going back to 2006 because of possible police mismanagement of the breath-test devices used to measure drivers’ blood-alcohol levels. Public Defender Jeff Adachi said as many as 1,000 convictions could eventually be overturned.

Other jurisdictions, including Santa Clara County and Ventura County, have had to drop some drunken-driving convictions because of problems with faulty or mishandled breath-test devices – although fears of mass dismissals have proved unfounded.

San Francisco’s troubles began when attorneys with the public defender’s office discovered suspicious bookkeeping in the Police Department’s accuracy testing of the devices. The entries suggested that officers weren’t conducting the checks at all.

A similar situation in Philadelphia last year resulted in the district attorney offering new trials to nearly 1,500 people who had been convicted of driving under the influence over the previous 15 months.

Police there revealed in March 2011 that four breath-test devices – different models from those used in San Francisco – had not been properly calibrated, said Tasha Jamerson, a spokeswoman for the district attorney’s office…

Officers in the field there ask suspected drunken drivers to exhale into portable testing devices to estimate whether a driver’s blood alcohol level is above the legal limit of 0.08 percent. In April 2010, Santa Clara County authorities learned that condensation was building up in the device, the Alco-Sensor V, that San Jose and Palo Alto police had been using for nearly all of 2010, resulting in erratic readings.

The device was a newer model of the Alco-Sensor IV that San Francisco police and many other Bay Area law enforcement agencies use…

Ventura County dismissed at least 64 cases in 2011 because of the same condensation glitch, said Senior Deputy District Attorney Stacy Ratner.

Intoximeters, the Missouri company that makes the Alco-Sensor devices, did not respond to requests for comments…

Although the news story only mentioned California counties, as well as Philadelphia, the widespread unreliability of these machines — upon which criminal convictions are based — goes far beyond that state.  See, for example, Attorney General Finds Widespread Breathalyzer Inaccuracies: Police Shut Down All Machines, 400 Wrongly Convicted in Washington: Faulty Breathalyzers and More Massive Breathalyzer Failures.  

For a confidential government document verifying the unreliability, see Report: Breathalyzers Outdated, Unstable, Unreliable.

(Thanks to Andre Campos.)

In most drunk driving cases, by far the most important evidence comes from a breath test.  Our DUI laws even provide that they are sufficient by themselves to warrant a conviction.  The accuracy of these devices is, therefore, critical.  And I’ve posted dozens of time on the inaccuracy and unreliability of breathalyzers.  See, for example, How Breathalyzers Work — and Why They Don’t, Attorney General Finds Widespread Breathalyzer Inaccuracies: Police Shut Down All Machines and More Massive Breathalyzer Failures.

Besides the inherent inaccuracies of breath-testing devices, they are also entirely dependent upon proper maintenance and calibration by the police making the arrest. Failure to properly calibrate one of these devices on a regular basis is going to result in false readings — and wrongful convictions.

Unfortunately, cops and police agencies are notoriously lazy or incompetent when it comes to these irritating "technical" tasks….

SFPD Breathalyzer Error Puts Hundreds of DUI Convictions in Doubt

San Francisco, CA.  March 5 – Hundreds, or even thousands, of drunk driving convictions could be overturned because the San Francisco Police Department has not tested its breathalyzers, officials said Monday.

For at least six years, the police officers in charge of testing the 20 breathalyzers used by the Police Department did not carry out any tests on the equipment.

Officers instead filled the test forms with numbers that matched the control sample, said Public Defender Jeff Adachi, throwing countless DUI convictions into doubt.

“We do expect that the cases will be in the hundreds. It’s possible that it could go into the thousands. The District Attorney’s Office is still investigating the scope of this,” Adachi said during a joint news conference with District Attorney George Gascon…

Amazing….no calibration tests in six years!  The cops just made up numbers to make the machines look accurate.

Even more amazing that a reading from one of these machines is legally considered proof beyond a reasonable doubt in a DUI case — and even triggers a legal presumption of guilt, forcing an accused citizen to prove his innocence.  See Whatever Happened to the Presumption of Innocence? and How to Overcome Scientific Facts: Pass a Law. 

(Thanks to Andre Campos and Murphy Mack.)
 

I’ve mentioned in past posts that the right to jury trial does not exist in some states for citizens accused of drunk driving.  See, for example, The Disappearing Right to Jury Trial – in DUI Cases, Through a Glass Darkly: No Jury Trial in DUI Cases and New Law: No Right to Jury Trial in DUI Cases. This may come as a shock to many out there, but it’s pretty typical of what I’ve termed "The DUI Exception to the Constitution".  

Let me make it clear:  in some states today, you can be arrested for DUI, charged, prosecuted and sent to jail for up to six months — without any right to have a jury of fellow citizens decide your guilt or innocence.

One of those states, Arizona, is apparently having second thoughts about denying this basic constitutional right….

Arizona Considers Restoring Jury Trials for DUI

Phoenix, AZ.  Feb. 20 —  Since the beginning of the year, certain motorists charged with driving under the influence of alcohol (DUI) lost their right to a trial by jury in the state of Arizona. A bill signed into law by Governor Jan Brewer (R) on April 29, 2011 rewrote the DUI statute so that only hardcore offenders with previous convictions or "extreme" blood alcohol content readings had the benefit of having their case heard by a jury of their peers, even though the first-time accused faced the prospect of spending six months behind bars.

The law removing the jury trials took effect December 31, but the state House Judiciary Committee on Thursday voted 7-0 to retroactively nullify the provision. Many state lawmakers expressed surprise after learning that they had voted for this language, which local prosecutors have been pushing for several years.

"At the arraignment, the court shall inform the defendant that if the state alleges a prior conviction the defendant may request a trial by jury and that the request, if made, shall be granted," Arizona Code Section 28-1381 now states.

The addition of the phrase "if the state alleges a prior conviction" erased the right to a jury trial for those who stand accused of being first-time, minor offenders. Trial lawyers have been looking to challenge the language before an appellate court.

"It has caused a lot of problems because if you have an extreme DUI and a first-time DUI, the judge hears the DUI case, the jury hears the extreme case," state Representative David Burnell Smith (R-Scottsdale) explained at the hearing Thursday. "If you file a motion, you get the extreme dismissed, you’d still not get a jury trial. It’s confusing out there. There’s constitutional issues, back and forth motions."

Smith’s legislation, House Bill 2284, would delete the language about prior convictions and give every defendant the unilateral right to request a jury trial. The measure is retroactive to December 31 to head off any legal challenges.

"It eliminates a real problem with the courts," Smith said.

Imagine that:  citizens accused of DUI may get a jury trial in Arizona.  Now, about those other states….
 

In recent times, I’ve detected a growing backlash against the excesses of the hysterical "War on Drunk Driving" — and even of politicians willing to question "The DUI Exception to the Constitution" and thereby risk MADD’s wrath come election time.  See, for example, Backlash, Forced Blood Draws: Citizen Backlash? and Catheter Forced Up Penis After DUI Arrest,  

One of the most egregious examples of the damage to our constitutional rights is exemplified by DUI roadblocks, aka "sobriety checkpoints".  I’ve posted often in the past about the inherent unconstitutionality of this clear violation of the Fourth Amendment.  See Are DUI Roadblocks Constitutional?.  And I’ve explained how roadblocks are ineffective and the only real reason these roadblocks continue to be used is that they are "cash cows" — they generate a lot of revenue for local municipalities from citations and car towing (usually for license, registration, insurance or equipment violations).  See Do DUI Roadblocks Work?, DUI Roadblocks for Fun and Profit and The True Purpose of DUI Roadblocks.

In the U.S. Supreme Court case that upheld sobriety checkpoints (Michigan v. Sitz), Chief Justice Rehnquist wrote for the 5-4 majority that although stopping drivers at a checkpoint without probable cause was an apparent violation of the Fourth Amendment, it was only a "minimal intrusion" on the rights of citizens — outweighed by the greater interest of the government in ensuring safety on the highways.  The case was sent back to the Michigan Supreme court to revise its previous decision reversing the DUI conviction.  

The Michigan Supreme Court refused to reverse its decision, again throwing out the conviction — on the new grounds that if DUI roadblocks are not a violation of the U.S. Constitution, they are certainly a violation of the Michigan state constitution.  In other words, the court said to Washington, "If you won’t protect our citizens, then we will".

Since then, 9 other states have joined Michigan in relying upon their own constitutions or laws to ban "sobriety checkpoints" (Idaho, Iowa, Montana, Rhode Island, Washington, Wisconsin, Wyoming, Oregon and Minnesota), and 2 (Texas and Alaska) prohibit them for other legal reasons.

In today’s news, another state is on the road to joining this growing backlash….

House Passes Bill That Would Get Rid of DUI Checkpoints

Salt Lake City, UT.  Feb. 24 —  Citing protection of personal rights and upholding the Constitution, Utah’s House of Representatives narrowly passed a bill that would ban DUI checkpoints in Utah.

Under House Bill 140, which was approved 41-33, checkpoints for fugitives, Amber Alerts and invasive species would still be allowed. But the practice of having officers stopping every car at a specific location for a period of several hours — looking for drunken drivers — would be banned.

"This doesn’t seem very consistent with the very unique idea of American government and law enforcement that we have," said Rep. David Butterfield, R-Logan, the sponsor of the legislation, about DUI checkpoints…

Butterfield said that the data he has found in researching this bill shows that of the 11 states that do not use DUI checkpoints, about half are in the top half of traffic safety in the nation, while the other half are in the bottom half of states in regard to traffic safety.

"The data shows no correlation between safety with those that do practice checkpoints and those that don’t," Butterfield said…

Rep. Craig Frank, R-Pleasant Grove, spoke in favor of the bill. Frank talked about his experience of being involved in a DUI checkpoint and stated that he felt his rights were being infringed upon while officers shone flashlights into his car searching for any questionable items, even though he gave no reason for police to suspect him of any crime.

"I was uncomfortable with that," Frank said.

Frank said he felt the practice of DUI checkpoints was well-intentioned but said that he felt that passing this legislation would help bring Utah back to upholding the Constitution and protecting people’s rights…

Butterfield’s proposal will now move on to the state Senate…

There would appear to be light at the end of this long, dark tunnel….
 

In my last post (The DUI Double Standard Continues), I commented on how cops commonly get a free pass when they’re caught driving drunk.  I should have added that this double standard is applied to judges, too….

DUI Charges Dropped Against Judge

Willowbrook, IL.  Feb. 15 – Charges were dropped Wednesday against a veteran Cook County judge accused of drunken driving last fall in Willowbrook, his attorney said.

Judge James Gavin was charged with misdemeanor DUI after police pulled him over Oct. 28 for using the shoulder to pass another motorist on southbound Illinois Route 83 after he had exited a tobacco store.

Police alleged that Gavin, 55, smelled of alcohol and failed an eye-gaze test before refusing to submit to other field sobriety and blood-alcohol testing. His license initially was suspended for his refusal to submit to the tests. But, on Dec. 7, DuPage County Judge Liam Brennan ordered that Gavin’s license be returned, ruling police lacked sufficient evidence to stop Gavin.

On Wednesday, at a hearing in which the defense sought to quash the arrest and suppress evidence, Brennan ruled that the act of driving on the shoulder absent other evidence of impairment was insufficient for the case to continue.

“The problem I have is all the other things that we typically look for to support a DUI arrest simply are not here,” said Brennan, according to a transcript provided by the defense. “Mr. Gavin was polite, oriented to time, place and person. I don’t think in the context of all the other things we expect to see and don’t see that there was reasonable grounds for his arrest.”…

Hmmmm…."The police lacked sufficient evidence to stop" the judge?  Since when is passing on a shoulder insufficient evidence to stop and ticket a driver?  

And "the act of driving on the shoulder absent other evidence of impairment was insufficient for the case to continue"?  Uh, what about smelling of alcohol, failing the "eye-gaze" nystagmus field sobriety test, refusing to take any more field sobriety tests and refusing all blood-alcohol testing?  And I’m pretty sure a few other things which are standard in any cop’s arrest report weren’t mentioned — slurred speech, bloodshot eyes, etc.  And what about the fact that a refusal to submit to testing is legally admissible as evidence of consciousness of guilt? 

Oh, right.  The judge must have been sober: he was polite, knew what time it was, knew where he was, and knew who he was.  Incredible.

For other examples of judges getting free passes, see When Judges Judge Judges, DUI Double Standard Continues, When Judges Protect Their Own, Who Will Guard the Guardians, and Who Judges the Judges?.