The Truth About Cars » DUI The Truth About Cars is dedicated to providing candid, unbiased automobile reviews and the latest in auto industry news. Tue, 15 Jul 2014 13:19:48 +0000 en-US hourly 1 The Truth About Cars is dedicated to providing candid, unbiased automobile reviews and the latest in auto industry news. The Truth About Cars no The Truth About Cars (The Truth About Cars) 2006-2009 The Truth About Cars The Truth About Cars is dedicated to providing candid, unbiased automobile reviews and the latest in auto industry news. The Truth About Cars » DUI Affluenza Redux: Rich Guy Gets Slap On The Wrist For Drunken High Speed Chase Mon, 19 May 2014 16:03:42 +0000 Click here to view the embedded video.

Seattle’s TV stations are reporting that a wealthy businessman who led police on a high speed chase through the city of Olympia in his Ferrari F360 has been sentenced to just one year of work release. According to the reports, Shaun Goodman pleaded guilty to felony police evasion and DUI for the December 29 incident that saw his terrified passenger leap from the moving car when he slowed at an intersection and ended only after he crashed into a parked car and then careened into the side of a house.

Blood alcohol tests showed Mr. Goodman had a BAC of 0.16, twice the legal limit in Washington State, and sentencing guidelines dictate that anyone with a BAC greater than 0.15 and two or three prior offenses receive 120 days jail time unless the judge determines that the sentence would impose a substantial risk to the offender’s physical or mental well-being. This conviction is Mr. Goodman’s seventh.

The light sentence has sparked some outcry in the local community and protesters gathered before the Thurston County Courthouse on Friday to voice their dissatisfaction. They allege that this sentence is just the latest example of the favorable treatment that Mr. Goodman has received all along from the court and point to the modest $75.000 bail, a sum the wealthy Mr. Goodman easily posted, and the fact that Mr. Goodman received the court’s permission to leave the state in order to attend the Super Bowl less than a month after his arrest as proof of their claim.

Mr. Goodman is obviously a serial offender and a menace on the roads and this judgment, just another in which wealthy defendants have used their position to obtain lighter sentences than would have been imposed upon the rest of us, is a disgrace. Protesters are right to demand answers.

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Making the Call Fri, 25 Apr 2014 12:48:08 +0000 Californiacallbox

As we hover around the fifty mile an hour mark in the right lane, the car ahead begins to wander again. First to the right, correcting sharply as they touch the rumble strip. Then to the left, as they overcorrect and wobble back across the center line. Suddenly, there’s a white flash to outside my driver’s door window. It’s some kind of late model Benz, burning up the passing lane Autobahn style. Not good.

The day started with plenty of optimism. Three weeks after the engorged disc in my lower back was finally cut down to size, I feel well enough to attempt the longest car ride I’ve taken in five months. It won’t be easy, but I have a friend along to help with the driving. We’ll be attending a conference about an hour and a half away from our homes, in a major Southeastern city. There will be a lot of sitting involved; my least favorite activity since my spine began to malfunction more than a year ago. However, the recent experiences of our dear EIC pro tempore give me strength. Surely I can handle a short drive if the man who pretty much broke everything a short time ago is already back to his jet-setting ways.

With my friend to distract me, the first drive is less onerous than I expected. The conference goes well, and I don’t regret the trip. All too soon it’s time to pack up and leave. After dosing up on ibuprofen, I slide into the driver’s seat for the return journey. We hit the freeway as darkness falls.

A little more than an hour in, we’re cruising at a little under seventy in the right lane. I’m pretty sore by now, but we’ll be home in a half hour or so.  The freeway is fairly empty. I try to avoid sliding into the hypnotic state that so often accompanies long stretches of straight road. At least I have my friend to keep me alert. As well as the pair of flashing taillights that I’m fast converging on, dead ahead of me.

Damn. I don’t have to slam the brakes, but the deceleration is rapid. I want to pass him, but he’s literally taking up the whole road. He splits the two lanes, blocking me on both sides. I fall back. We’re doing a little bit above fifty, and he has his four ways on. What the hell is going on? Is he looking for someone on the side of the highway? Or perhaps for a mile marker, or an exit sign? Cars start to stack up behind us. He drifts back to the right, opening up the left lane. The cars behind us hustle past, and he speeds up a little. I could pass, but I don’t. Something doesn’t feel right.

I drop back and watch. It’s not long before he begins to weave again: left and right, back and forth. Both of us observe him, or possibly her- it’s too dark to see inside. We watch them in silence for a few minutes, wondering if maybe they’ll pull over. But nothing happens- the four ways keep going, the weaving stays about the same, and cars continue to blow by us on the left.

What should we do? I don’t know the number for the Highway Patrol. I’ve never dialed 911 before in my life, as strange as that sounds. Is this the kind of thing that 911 should even be used for? Does a guy who can’t drive straight really count as an “emergency?” It’s dark, we’re both tired, and the sawed-off disc in my lower back is increasingly making its unhappiness known. We’re rapidly converging on our destination, and I have no desire to get involved in what could rapidly become a long or even dangerous confrontation.

It’s at that point that the Mercedes appears. It’s a miss, but too close for comfort. It sends our subject wheeling back to the right, against the rumble strip, and then back left again on the same crazy cycle. Drunk. I don’t recall which of us said it first, but there is no disagreement. Even if we’re wrong, we’ve passed a tipping point that shouldn’t be ignored. We decide to make the call.

I hand my friend my phone. He gets the local 911 operator, who immediately begins pumping us for information. Where are you headed? What’s his license plate number? The make/model of car? And so on and so forth.  Then the operator wants to know my phone number. My friend hands it back so I can tell her. At this point, we’re running out of her jurisdiction, so she abruptly transfers me to the Highway Patrol. A few buzzes, and I get their operator. He begins asking me the same set of questions- apparently nothing was communicated by the local operator.

After a few more minutes I finish up with the Highway Patrol operator. He tells me that there are no units in our area, but he’ll try to dispatch one to check out the situation. He advises me to turn around as soon as possible and go home. There’s only one problem: we have now missed all of our exits, and neither of us knows how much farther we must go before we can turn around. To make matters worse (or possibly better), I seem to have spooked our subject when I pulled in close to read his license plate. His four ways are still flashing, but the wandering has mostly stopped. His speed increases to tolerable level as he stays in the right lane. We drop back and follow at a distance as the minutes tick by. No sign of the cops.

Finally, an exit appears. It’s a rural area, but I see that I can turn around and go back in the opposite direction. I start to head for ramp, but then I see that our subject is doing the same thing. “No!” my passenger shouts. I dive back to the freeway at the last moment. My friend is right; I don’t want to be stopped on that ramp behind a driver who has undoubtedly realized we’ve been following him. I don’t need any bullet holes in my car, myself, or my friend. I watch our subject switch off his four ways as he heads up the ramp. For a moment, I panic and wonder if he might come down the opposite side and follow us. But we never see him again.

We drive a little farther before we come upon another exit, turn around, and head back home. We’ve tacked on an extra half-hour or so to our journey with little to show for it. I feel frustrated, but also relieved. Maybe the cops pinched him, or maybe he got away. It’s out of our hands now. Even so, I can’t help but feel that there was something else going on besides a garden-variety DUI; the endlessly flashing four ways are a bizarre coda on the entire story.  What about you, B&B? Have you ever made the call?

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Court Rules HOA Cops Can Use Illegal Means To Detain You For DUI Wed, 22 Jan 2014 12:30:49 +0000  

HOA Police Courtesy

Now that most of you have given your tacit approval for TTAC to continue to post stories about police and motorist interaction, please consider this strange case. It all began at 2:10 AM on April 20, 2012 when an officer observed Frederick Weaver weaving and driving an estimated 25 mph in a 15 mph zone in his Acura as he cruised through the Carleton Place town home community in Wilmington, North Carolina.

Weaver was pulled over not by a traditional LEO, but rather by security guard Brett Hunter of the private firm Metro Special Police and Security Services, the Homeowner’s Association police for the community. Officer Hunter’s training for his position consisted of four hours of classroom time and a full day on the gun range. He proceeded to go all Paul Blart on Weaver’s ass, issued him an HOA citation for speeding and radioed nearby agencies for backup as he smelled alcohol on Weaver’s breath but did not possess the power of arrest.

Ten minutes later, an officer arrived from the University of North Carolina Wilmington police force arrived. She realized she had no jurisdiction on the property and called for the Wilmington Police Department to intercede. When they showed up another twenty five minutes later, they found Weaver sitting quietly on a curb. They administer a field sobriety test and arrested him for DUI.

Weaver was subsequently found guilty of driving while impaired and carrying a concealed weapon. He appealed and claimed that the arrest was illegal because the HOA officer had no training in speed and DUI enforcement and was denied his Fourth Amendment “reasonable suspicion” rights. The court agreed, saying Officer Hunter was acting as an agent of the state of North Carolina and thus he was bound by the Fourth Amendment, which he clearly violated.

Last month an appeals panel overturned the court’s ruling. They said that Officer Hunter was not acting as an agent of the state and thus the normal rules of law enforcement did not apply and the bust was legal. “A traffic stop conducted entirely by a nonstate actor is not subject to reasonable suspicion because the Fourth Amendment does not apply,” wrote the appellate court.

In other words, HOA security guards can perform traffic stops that would be illegal for traditional LEOs to conduct. Which means we all can!

Click here to view the embedded video.

This case will likely end up in a higher court and we will continue to monitor. In the meantime, B&B, should the Del Boca Vista HOA police have such power? And what would you have done if you were the motorist?




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Racing Drunk On Private Property Is DUI In Indiana — Maybe Tue, 15 Oct 2013 15:27:46 +0000 v8adelaide

Here’s something to consider: if you are operating a motor vehicle on private property, and you’ve been drinking, should that be considered DUI? What if you’re on a racetrack that is closed to the general public?

Armchair attorneys across the country are currently discussing the above question after the report that a circle-track racer was arrested for DUI during a race.

According to Anderson Police Department public information officer, Joel Sandefur, [the driver] was black-flagged and forced out of a race Saturday night but re-entered the race where he intentionally crashed into another driver. No injuries were reported.

Sandefur said officers smelled alcohol on Lathan’s breath after the race and several witnesses reportedly saw him drinking between races.

Let me make one thing, as they say, perfectly clear: as a racer with some circle-track experience, I find the idea of racing an automobile impaired by any substance to be completely beneath contempt. I won’t line up on the grid next to someone who is obviously drunk and nor should anyone else. This moron should be suspended for a year or longer from every sanction in the country.

With that said: when you lose your temper and run into someone during a race you aren’t charged with assault. When you crash your race car you aren’t charged with failure to control. If you short-brake someone going into the Esses at Mid-Ohio you aren’t charged with six-point reckless op. And, of course, there’s no penalty for speeding on a track. These things are handled within the event, the same way that my son isn’t charged with assault for punching someone in the face during his Tae Kwon Do class. So why is driving drunk around a racetrack subject to official intervention?

The answer apparently depends on the state in which the incident happens. According to Breitbart’s Lawyers Of The Internet, Indiana has no exemption for OMVI on private property. (Our volunteer counsel, Curvy McLegalbriefs, submitted this story for review but offered no opinion on the law in Indiana.) There’s something scary about that. If you want to get drunk and drive a tractor around your back yard, shouldn’t that be legal? These aren’t street-legal cars and this event was closed to the public in the sense that you can’t just show up and drive. Where should the line be drawn?

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How Low Can You Go: NTSB Proposes Lowering BAC limit to 0.05 Wed, 15 May 2013 20:59:00 +0000 Aftermath of Carrollton, KY  bus crash May 14, 1988.

Aftermath of Carrollton, KY bus crash May 14, 1988.

No one is in favor of drunk driving. Don’t do it. Now that I’ve completed the ritualistic incantation prior to writing a piece about drunk driving, let’s hit the jump and discuss the latest proposal from the NTSB.

Yesterday the NTSB began a campaign using its bully pulpit to encourage state legislatures to adopt a per se blood alcohol content limit of 0.05%, a significant reduction from the current standard of 0.08%.  It’s common in other countries, particularly European ones, to have the limit set that low. However, as with, well, everything, at some point you reach a point of diminishing returns.

The usual suspects are lining up on both sides. The NTSB has no regulatory authority, so it can’t impose this. However, as with the campaigns to lower the limit from 0 .10 to 0.08 and the push for mandatory seatbelt usage, eventually the threat of withholding Federal highway funds from states that don’t adopt the lower limit will bring the states in line. The insurance companies are on board, of course, with the NTSB’s recommendation. Advocacy from MADD will most certainly begin apace.

On the other side you have the MOD squad, represented in the Post piece I linked to above by Sarah Longwell of the American Beverage Institute.  Ms. Longwell pointed out that fatalities aren’t occurring at .05 to .08. They occur most often at .16 or higher. God speed, Ms. Longwell. You’re about to get the opportunity to really earn what I’m sure is the quite handsome salary that ABI pays you.

So, in a nutshell the facts are these: The NTSB proposes lowering the per se BAC limit to 0.05%.  They have no legal authority to enforce such a recommendation, but they don’t need it because their sister agencies and (let’s not forget this) private associations like the IIHS and MADD  have both the legal means and the moral authority to accomplish what the NTSB wants anyway.   They’ll work to push it through.

On the other side you have the ABI and… selfish alcoholics? People who don’t care to get blitzed (and then endanger themselves and their fellow citizens) allied with the greedy capitalists (with blood stained hands) looking to turn a profit are the only ones who will do much more than raise token opposition to this proposal.

That’s the problem. The motives and the storyline are set and the characters have all been cast.  Rant all you want about “unconscionable Federal power grabs” and wave your dog-eared copies of Thomas Paine. A betting man would figure that the limit will be 0.05% before the decade is over and buy stock in O’Douls.

We can deride the NTSB, IIHS, and MADD as “nanny staters” and the like, but in the end, they’re not wrong. Places, such as Australia, that have lowered their limit to 0.05 have seen a reduction in DUI related fatalities. 12% in the case of Australia. That’s not nothing.

To argue the other side means that we have to recognize, and agree to live with, an “acceptable level of DUI related fatalities,”  to paraphrase the British during the hey- day of IRA bombings and Ulstermen knee cappings,Who wants to stand up and say “Almost 10,000 men, women, and children were killed in DUI related crashes last year and I say that’s still not enough!”

If we could guarantee that only drunk drivers and, perhaps, their passengers would be the only fatalities in DUI related crashes, then most of us would be on board, the way laws requiring motorcyclists to wear helmets have been repealed.  It doesn’t work that way. Yesterday was the 25th anniversary of the Carrollton bus crash. While largely forgotten elsewhere, it approaches something close to a state day of mourning in Kentucky.  The NTSB wasn’t particularly shy about using the anniversary as a backdrop for its announcement either.

Of course, a 0.05% limit wouldn’t have mattered in the Carrollton case. The driver who hit the bus, causing it to erupt into a fireball that killed 27 people, was at a 0.24% BAC level. Sentenced to just 16 years, Larry Mahoney spent less than 10 in prison after a jury of his peers elected to convict him of involuntary manslaughter instead of Murder.

So what’s to be done? Or not done? I’ll close with these few personal points and then turn it over to the B&B to hash out in the comments thread. I don’t drink very much. A six pack of Bud Light in the fridge will normally last me month.  Lowering the BAC limit to 0.05% won’t affect me personally.  Two drinks at dinner won’t put a guy in my weight class in any jeopardy of violating per se.

However, a single drink would probably put a 120 lb (or less) woman in jeopardy of per se. Two drinks will do it now at the 0.08% limit for many women.  That’s not “fair,” not that “fair” has anything to do with anything any more.

I was also never much of a “drunk hunter” in my patrol days. I’d take a DUI if it rolled in front of me, but I was never one to lurk around bars and wait to see a drunk stumble out to his car. Some guys, particularly in some of the third shift squads that overlapped with me on second shift, were like that. I never cared for those guys, not because I didn’t consider ‘sporting” to fish for drunks in a baited pond or because I felt sorry for the poor schmucks they were popping for DUI. I didn’t like those guys because they’d get themselves tied up on a DUI arrest for two to three hours, leaving me and my fellow second shift officers to continue to catch calls after we’d already been running call to call for six hours before they came on shift. (Not particularly noble, but it is what it is.)

I can say that of the DUIs I did arrest back in the day, I never had one that I stopped on suspicion of DUI for driving in what we will call a stereotypically drunk manner (weaving, too slow, crossing the center line, etc.) who was under a 0.10.  Sure, I caught a few that were less than that after I stopped them for something else that sober drivers sometimes do, like running a light or an equipment violation, and detected alcohol when I made contact with them. But for the behaviors that we all generally recognize as “drunk driving?” Never under a 0.10 and usually 0.12 or greater. I know, I know. Anecdotal evidence, particularly personal anecdotal evidence, doesn’t count.

What counts are studies, which the NTSB has in droves. In fact, one of the little nuggets in their announcement yesterday was that their research has shown that impairment can start as low as 0.01%.  Take a healthy swig during Communion and risk losing your license? Admittedly, that’s hyperbole, but it’s not far off.

I’m not in favor of drunk driving. No one is. But I truly believe that we’re past the point of diminishing returns on per se BAC. Arresting more people for having drunk less alcohol is bad policy. Keep the levels the same, but let’s get serious about the penalties. DUI law as it’s currently written serves mainly to feed the courts and the lawyers while ensuring that the suspects get off with relatively light penalties particularly for the first and second offenses. Getting a DUI will cost you a lot in court costs and lawyer’s fees, but it doesn’t really hurt you. If DUI is as deadly as we all seem to believe it is, then let’s stiffen the jail terms and driver’s licensing penalties for it and concentrate on waging a little shock and awe on first and second offenders. That would be a better tribute to the victims of crimes like Carrollton.

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Louisiana Court Affirms Citizen Right to Make DUI Arrests Mon, 21 Nov 2011 15:17:40 +0000

Private citizens can arrest other motorists suspected of driving under the influence of alcohol (DUI), the Louisiana Court of Appeals ruled Tuesday. A three-judge panel considered the case of Tracy L. Common who was stopped in Westwego by Gretna Police Detective Brian Rico at 9pm on December 31, 2006. Rico was off-duty and outside his jurisdiction.

That night, Rico saw Common’s Chevy S-10 pickup truck swerving on the road and felt the driver was seriously impaired. He activated the lights on his unmarked car and conducted a stop without waiting for the local police to arrive. When Common hopped out of the car, Rico conducted a pat-down search which turned up 50 pills and $1100 in cash. A later search of his car by local police uncovered $2000 and some marijuana.

Though Rico was a police officer, the court assumed he was acting as an ordinary citizen, citing the 2008 appellate case Louisiana v. Lavergne which upheld a DUI traffic stop performed by a volunteer firefighter from Texas.

“Our brethren on the First Circuit held that the defendant’s erratic driving was sufficient to justify a stop for the felony offense of aggravated obstruction of a highway of commerce, which authorized a private citizen to make the arrest,” Judge Susan M. Chehardy wrote for the Fifth Circuit panel. “In this case, as in Lavergne, Detective Rico observed the defendant driving erratically when his vehicle swerved across three lanes of traffic on the Westbank Expressway and nearly collided with Detective Rico’s vehicle…. Here, as in Lavergne, we see no error in the finding that a private citizen who witnessed aggravated obstruction of a highway is authorized to arrest a defendant.”

State law allows private citizens to make arrests for felony offenses, and driving in a way that endangers human life qualifies under the highway obstruction statute. As a result of Rico’s search, Common was found to be in possession of MDMA or ecstasy, for which he was sentenced to seven years of hard labor. The sentence was later upgraded to ten years after the lower court learned it was Common’s fourth felony conviction. Common argued the evidence should be thrown out because it violated his constitutional rights. The court disagreed.

“Evidence seized pursuant to a search by a private citizen, acting in his capacity as a private citizen, is not excluded under the Fourth Amendment because the amendment only protects individuals against governmental intrusion,” Chehardy wrote. “Thus, the pills confiscated by the private citizen would not be excluded under the Fourth Amendment.”

The judges found procedural errors with the penalty imposed, so they ordered him resentenced. A copy of the decision is available in a 500k PDF file at the source link below.

Source: PDF File Louisiana v. Common (Court of Appeals, State of Louisiana, 11/15/2011)


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Oregon Appeals Court: Sleep Driving Does Not Excuse DUI Fri, 04 Nov 2011 14:19:01 +0000

An Oregon man attempted to escape conviction for driving under the influence of alcohol (DUI) by claiming he was “sleep driving” and not responsible for his actions. On Wednesday, a three-judge panel of the state Court of Appeals shut down the argument as utterly irrelevant. Even if what he said were true, driving while drunk and asleep would still be a crime.

James Robert Newman left his car at his apartment and walked to a restaurant to have dinner and drinks with friends. Those friends then offered Newman a ride home. Later that evening, a police officer saw Newman’s car turn left without signaling, run a red light and drive down the middle of the street. When the officer turned on his overhead lights, Newman pulled over. He reeked of alcohol and failed the standard battery of field sobriety tests. He was taken to the station where he blew 0.15 on a breathalyzer.

“At trial, defendant admitted that he was intoxicated but sought to present evidence that he did not consciously drive or control his car,” Presiding Judge Darleen Ortega wrote. “He testified that he was not aware of leaving his apartment, going to his car, starting the car, or driving it. According to defendant, after he went to sleep that evening, the next thing he was aware of was the police car lights flashing behind him.”

Multnomah County Circuit Court Judge Kathleen M. Dailey was not interested in hearing this evidence as it was not relevant. Newman appealed, insisting he should have been allowed to present his case. For the sake of argument, the appellate judges considered whether it would make a difference were Newman’s claims accepted as true. The judges looked to determine whether the legislature intended DUI to be a crime requiring one be aware of his actions, having a “culpable mental state.” A general state statute, ORS 161.085, requires requires an intentional act for someone to be criminally liable, but the courts have interpreted this to allow the legislature to create exceptions.

The state supreme court considered the mental state issue in a 1990 case Oregon v. Miller. The justices found that in 70 years, no court ruling or legislative act had ever required the state to prove the driver was acting intentionally to convict for DUI.

“Defendant’s arguments for reconsidering Miller are properly addressed to the Supreme Court, not to this court,” Ortega wrote. “We agree with the trial court that DUII is a strict liability offense and that, therefore, the evidence concerning defendant’s mental state is irrelevant. Affirmed.”

A copy of the decision is available in a 30k PDF file at the source link below.

Source: PDF File Oregon v. Newman (Court of Appeals, State of Oregon, 11/2/2011)


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Nebraska Supreme Court: No DUI in a Private Driveway Tue, 18 Oct 2011 13:05:06 +0000

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. Past precedent in the state held that an apartment complex parking lot qualified as being open to public access, but the case at hand was different.

“As a matter of law, we conclude that a residential driveway is not private property that is open to public access,” Justice William Connolly wrote for the court. “Members of the general public have no right or implied permission to use a private residential driveway. Nor do they have the ‘ability to enter’ the driveway in the same sense that a member of the public might drive through or use a private parking lot by custom.”

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.”

The court reversed all of McCave’s convictions, although it did allow retrial on the trespass charge. A copy of the ruling is available in a 650k PDF file at the source link below.

Source: PDF File Nebraska v. McCave (Nebraska Supreme Court, 10/14/2011)


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Where To Drive Drunk In Detroit Sun, 24 Jul 2011 15:19:35 +0000

This handy pocket chart (print out and laminate), brought to you courtesy of the Freep, shows you the good and bad parts of the Detroit Metro when it comes to driving under the influence. We supply it in extra large, because- well, you know.

As you can see, in Detroit proper, the consequences of getting caught over the limit are pretty benign.

North of 8 Mile Road, matters get dicey. And the map tells only half of the story.

If you drive blottoed, you down’t want to land in the court of Judge Kimberly Small in Bloomfield Hills. Here, you are pretty sure to end up in the slammer, even for a first offense. In other areas, you must be a repeat offender to do time. And in Detroit, the stays are short, and the fines are affordable. If you are a low income drinker, Judge Marylin Atkins in Detroit will give you a discount.

See, downtown Detroit isn’t all that bad.  And some enterprising soul really should put that information into the navigation system.


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South Carolina Supreme Court Busts Town for Ignoring Camera Law Wed, 13 Jul 2011 14:13:47 +0000

In 1998, South Carolina lawmakers mandated that police use dashboard mounted cameras to document the arrest of anyone arrested for driving under the influence of alcohol (DUI). The state supreme court on Monday ruled that the town of Mount Pleasant was not in compliance with this statute, which states a suspect “must have his conduct at the incident site and the breath test site video recorded.”

DUI arrests have been a major moneymaker for the town of 67,000. Between 1998 and 2008, Mount Pleasant made 2796 DUI arrests, ranking first among municipalities in the state. It should have had the top priority in receiving cameras from the state Department of Public Safety, but it only asked for and received seven. By comparison, the town of Moncks Corner had nearly twice as many cameras for just 198 arrests. Instead of buying cameras to meet legal requirements, town officials spent $65,145 for a “Town of Mount Pleasant” sign placed at a freeway exit. They also paid $100,000 to a marketing firm to come up with a town slogan and $6 million to buy a parcel of property known as the “O.K. Tire Store.”

Mount Pleasant officials believed they could get away with this because the dashcam law was written to take effect gradually as the video equipment was distributed throughout the state. In 2007, the high court referred to this provision as providing “a reasonable grace period.” In the present case, the justices saw the town as attempting to evade its legal responsibility with an overly clever reading of the letter of the law.

“We find the town’s protracted failure to equip its patrol vehicles with video cameras, despite its ‘priority’ ranking, defeats the intent of the legislature and violates the statutorily-created obligation to videotape DUI arrests,” Justice Donald W. Beatty wrote for the court. “Accordingly, we do not believe that the Town should be able to continually evade its duty by relying on subsection (G) of section 56-5-2953.”

The court found that although the city did not necessarily have to spend its own funds for the cameras, it was responsible for requesting them from the state Department of Public Safety.

“We find the town’s explanation is disingenuous,” Beatty wrote. “Admittedly, the legislature was silent with respect to a time requirement for when vehicles must be equipped with video cameras. However, applying the rules of statutory construction, we find the town’s interpretation would defeat the legislative intent of section 56-5-2953 and the overall DUI reform enacted in 1998.”

The ruling affirmed a lower court’s dismissal of DUI charges against Treva Roberts for a November 1, 2007 incident.


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New York: Ferrari Sues Over Seized Ferrari Thu, 09 Jun 2011 13:32:39 +0000

A US district court judge ruled Tuesday that James B. Ferrari had a point when he sued Suffolk County, New York over its seizure of his 2003 Ferrari 360 Spider. Ferrari was arrested on suspicion of driving under the influence of alcohol (DUI) in the city of Bellport on May 26, 2009. That gave county officials an excuse to grab a car that sold for $190,000 when new.

“Ferrari is not the most sympathetic plaintiff, to put it mildly,” Judge Joanna Seybert wrote, overruling the county’s motion to dismiss the case. “But the Due Process clause protects everyone — even repeated drunk drivers. Here, Ferrari has adequately pled that Suffolk County violated his due process rights.”

The accusations against Ferrari were significant. Police claim he drove 100 MPH, crossed a double-yellow line, admitted to the officer that he had consumed alcohol and was on thirteen prescription pills. Ferrari helpfully pointed to drug paraphernalia during the stop, saying, “The crack pipe’s mine.” Ferrari also had a very long list of past traffic violations.

The Fourteenth Amendment states that nobody can be deprived of their property without due process of law. In Suffolk County, vehicle owners who have not been convicted of any crime are offered “retention hearings” to challenge the vehicle seizure. A 2002 federal appellate case, Krimstock v. Kelly, articulated the need for such a hearing to establish the necessity and legitimacy of continued retention of a vehicle.

“In direct defiance of both the Fourteenth Amendment due process requirements articulated in Krimstock and the Suffolk County Code, the defendants herein knowingly train, and/or deliberately permit, the hearing officers who ‘preside’ over retention hearings to deliberately and systematically refuse to comport with the requirements of due process,” Ferrari’s lawyer argued.

The procedure in Suffolk County is merely to establish the validity of the initial arrest and then leave it up to the vehicle owner to prove a hardship that would justify the car’s return. In 2004, a jury ruled against Suffolk County on this very point. Although Judge Seybert was merely ruling on a procedural motion and not coming to a final decision, it is clear Suffolk County is going to have a hard time winning the case. Seybert blasted the retention hearing conducted on June 9, 2009 by Justice John DiNoto.

“At no time did Justice DiNoto take issue with, or even acknowledge, the county’s multiple, flagrant misstatements of the law,” Seybert wrote. “Beyond the per se violation stemming from Justice DiNoto’s failure to issue a Krimstock-complaint ‘statement of findings,’ other due process concerns scream out from the face of hearing transcript. Instead of trying to meet its Krimstock/Canavan burden, the county instead spent the hearing enunciating one erroneous legal principle after another, from a bizarre effort to shift the burden, to a nonsensical interpretation of Krimstock as ‘dicta.’”

Seybert found it “quite plausible” that DiNoto impounded the Ferrari because he misunderstood the law and acted in an irrational manner. The judge also found little merit in the county’s attempt to argue that keeping the Ferrari would prevent Ferrari from driving drunk again because he had another vehicle at his disposal.

“Indeed, if impounding his Ferrari causes Ferrari to instead drive his Land Rover, impoundment might actually undermine the county’s interest in protecting public safety,” Seybert wrote. “After all, holding other factors equal, the basic ‘laws of physics’ dictate that the much larger, much heavier Land Rover would do much greater damage in a collision than the lighter, smaller Ferrari.”

The case can now go to trial. Ferrari is seeking $500,000 in compensatory damages. A copy of the order is available in a 50k PDF file at the source link below.

Source: PDF File Memorandum and Order (US District Court, Eastern District New York, 6/7/2011)


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Solving Yesterday’s Safety Problems Tomorrow Mon, 31 Jan 2011 22:05:35 +0000

Though I’m generally too much of a libertarian to be a huge fan of the work of the neo-prohibitionists at Mothers Against Drunk Driving, this in-car breathalyzing technology is definitely the kind of active-safety mandate I can get behind. After all, the social debate over the the effects of and responsibility for drunk driving has taken place, and despite heavy penalties against it, drunk driving still kills too many people. Unfortunately, since this technology won’t be usable for another ten years, we’re all going to have to live with the risk of drunk drivers for quite a bit longer… and by the time this hits the streets, you had better believe that distracted driving will be a far more relevant risk factor. After all, if the current state of debate over distracted driving were compared to the drunk driving debate, the automakers would still be arguing that in-car kegerators help keep the danger out of in-car drinking… and the government would be working to set voluntary safety standards for those kegerators.

The moral of the story: by the time we recognize societal safety problems as real problems, we are already halfway to solving them… and the final 50 percent of the problem can take years afterwords to solve.

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Ur-Turn: The Truth About Driving While Stoned Sat, 09 Oct 2010 15:49:18 +0000

If you think Baruth’s series on speeding demonstrated both a lack of adult responsibility and abundant sociopathology, you’re going to love this.

Every state in the union has DUID, driving under the influence of drugs, statutes in their traffic codes. In Michigan, though, you may not even have to actually be “under the influence” to be convicted. A few years ago, as part of a package of drunk driving legislation passed to maintain the flow of Federal highway funds, Michigan’s vehicle code (257.625.8) now states:

8) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person has in his or her body any amount of a controlled substance listed in schedule 1…(emphasis added)

Schedule 1 substances are the usual suspects: heroin, cocaine, marijuana, other opiates, indole amines (psychedelics) amphetamines, barbiturates etc. Note the “any amount” part. If Johnny Law can prove that in your body you had even the smallest trace amount of illegal drugs when you were driving, you’re in deep trouble. Impairment is not the legal standard when it comes to driving and drugs, simple presence of the controlled substance is. Let’s say you aren’t a doper but went to a rock concert and the people around you were smoking pot. Due to second hand smoke you probably ended up inhaling at least a few THC molecules. If you could smell it, it got in your body even if it wasn’t enough to get you high or even have you notice any effect at all. It is, however, any amount, and state of the art blood testing equipment can measure substances in your blood at virtually any amount. Modern testing can measure concentrations as dilute as a single picogram per milliliter (pg/ml). A milliliter of water weighs one gram. A picogram is one trillionth of a gram. That concentration is the equivalent of one drop of oil in a 10 mile long train of tank cars filled with water. While that level of dilution is almost homeopathic, it’s still measurable. If it’s measurable, you broke the law, impaired or not.

It gets worse. The above statute references Michigan PA 368 of 1978 that in addition to the cited substances, their “derivatives” are also criminalized. It’s likely that the legislature intended that to apply to psychoactive derivatives, so-called designer drugs that were being developed in the late 1970s as a means of getting around the laws as they were then written. Unfortunately, the way that Michigan police agencies interpret the law, derivatives also include completely inert and non-psychoactive metabolites that your body creates as it processes the drugs. You can be convicted of drugged driving even if you aren’t really drugged.

Marijuana users face particular scrutiny under this enforcement regime.

Unlike many drugs like opiates and psychedelics, that are quickly digested and whose metabolites are quickly flushed out of the body, THC and its metabolites are fat soluble and are stored in fatty tissue. That’s one reason why former pot smokers will sometimes get a buzz, on top of the endorphin rush, when they do vigorous exercise. Burning off the fat releases some THC stored in that fat into your blood. Marijuana is a relatively benign drug but it has a very long half-life. You can shoot heroin on Saturday night and by Tuesday you’ll test negative. You can smoke a joint at a Memorial Day picnic, and still test positive on Labor Day. Even without the very latest pico level testing equipment you can still test positive for the presence of THC or its metabolites for many months, sometimes years, after ingesting the drug stops. With the latest equipment, a heavy smoker would probably test positive for life, decades after stopping. That’s why when companies drug test employees, for marijuana use there is a relative scale based on the level of THC found. A pass/fail, presence/no presence standard would fail too many people that don’t currently use marijuana, the practical equivalent to a false positive. While businesses may use a reasonable standard so they can keep good employees, a reasonable standard can get in the way of putting someone in jail or generating some revenue with fines.

Any amount is any amount and in 2006 the Michigan state Supreme Court ruled that “any amount” of “derivatives” means exactly that. For a while you could be convicted of OWPD (operating with the presence of drugs) even if you never smoked a joint or snorted a line and were as-sober-as-a-judge-whose-father-was-a-Methodist-minister when you got behind the wheel. In July of 2010, because of Michigan’s medical marijuana act, the court reconsidered the question and overturned its previous ruling, saying that the legislature’s definition of metabolites was vague and the law, as enforced, made it virtually impossible for patients using medical marijuana to ever legally drive.

Writing for the court’s majority, Justice Michael F. Cavanagh said, “Individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired.”

Predictably, police officers in the state, never eager to give up any power, any tool to generate revenue and put people in jail, were not thrilled with the ruling. Sgt. Christopher Hawkins, legislative liaison for the Michigan State Police said, “We’re in a frustrating situation. It’s almost like the courts are saying that we can arrest if we find marijuana on you, but it’s different if we find marijuana in you.”

Since the court effectively threw out the use of drug metabolites as evidence, those who are still convinced that potheads on the road are a serious menace (and a potential revenue source) are pursuing legislative remedies. Former Eaton County sheriff and current member of the Michigan House of Representatives, Rick Jones has introduced legislation to permit and encourage the use of roadside drug testing to test for six commonly used illegal substances.

Jones was a staunch opponent of the Michigan Medical Marijuana Act and it appears that his opposition to all marijuana use is part of Jones’ motivation. Jones also says that the bill would save money by reducing the amount of work needed to be done by the heavily backlogged state police crime lab.

The use of roadside testing would increase the likelihood of finding the actual substances before they are metabolized since the initial test would be administered immediately after the person was pulled over, not later in the police station or hospital after waiting for search warrants. The roadside test kit would take saliva samples that are tested with a portable analyzer at the scene. Assuming the driver fails the test, the proposed law stipulates that a second screening test will be done at a lab. If that gives a positive result, a confirmation test will be done using a more precise immunoassay method.

“I know this has been a problem for law enforcement for years,” Jones said. “What do you do when you’ve got a guy you know is on drugs but you can’t test him?” Perhaps that’s the difference between real science and police science. In real science, you perform the tests and then make your conclusions. In police science, you make up your mind first about who is guilty and then use a “scientific” test that will back you up. If the scientific test can measure trillionths of a gram, you can lock just about everybody up.

In case you don’t know, by the way, really good marijuana costs about $600 an ounce retail. That’s about $21 per gram. A trillionth of a gram of very expensive pot would be worth just 2.14e-11th dollars. It’s been a while since Mr. Parnes’ AP algebra-trig class but I’m pretty sure that’s not very much money.

A lot of heartache for an infinitesimally small amount of virtually nothing that isn’t harming anybody anyway.

If the legislation passes Michigan would be the first state in the US to implement roadside drug testing, which is apparently already done in Australia and Europe, though I’m not sure what technology they use.

There is currently only one roadside drug tester currently on the market, made by Phillips and designed specifically for law enforcement use. As a technology freak I have to say that it’s a cool technique. Magnetic nanoparticles are coated with ligands designed to bind to the tested-for chemicals. Magnetic and optical readings can then be taken from the magnetic particles to extrapolate the chemical levels. It seems to be far more reliable and accurate than Breathalyzer machines. What’s troubling about the technology is that Phillips initially developed it for its promise as a medical diagnostic tool not a cop toy. When Phillips introduced the technology they described it as

A new biosensor platform developed by Philips that uses magnetic nanoparticles to measure target molecules could bring complex in-vitro diagnostic tests out of the laboratory and into decentralized settings, including the patient’s bedside and at home. The speed, ease of use, robustness and accuracy of this new technology could address the requirements of critical care environments by potentially speeding up the diagnosis of life-threatening diseases. In addition, it could be suitable for monitoring chronically ill patients at home.

See any words like police, law enforcement, illegal drugs? Me neither. It talks about bedside diagnostic tests, not roadside drug tests. Though touted as a medical tool, the first commercial device based on the technology is going to be used to put people in jail easier, not get them out of the hospital faster.

I’m not sure exactly what that says. Phillips is obviously making a business decision. Though medical devices can be a very profitable business, it appears that law enforcement and revenue enhancing devices may be even more profitable. DUI and DUID fines are just about the highest traffic fines levied. Every business has its “whales”, customers with whom it is very profitable to do business. DUIs and DUIDs are the whales of the traffic ticket biz. Cops and prosecutors (and all the other public employees that are leeches on the system) love drunks and druggies because they can usually tag them with a whole creel of tickets, court costs and driver responsibility “fees”. In Michigan, first offense DUI rings you up for $100-$500. Kaching. Lansing tacks on two years of driver responsibility fees at $1000/yr. Kaching, kaching. The fines rise with each subsequent offense. Kaching, kaching, kaching.

There’s a moral implication here. It would be one thing if a technology was diverted from medicine to preventing bioterror attacks. I’d say that, yes, that was a morally defensible trade off, just as making penicillin available to Allied troops in WWII before it was available to the general public was a morally defensible trade off. However, though they like to call it a war on drugs, it’s not a real war. The technology was developed to drastically shorten the time needed for blood tests in hospital settings. I don’t think I’m going out on a limb to say that waiting for blood work results has likely killed more people in hospitals than drugged drivers have on the roads.

Besides the moral implications of first using a promising medical technology for law enforcement purposes before developing practical medical applications, the Phillips device will put at legal risk people who don’t use illegal drugs, but do use prescription drugs legally and responsibly. Remember, the legal standard is “any amount” when it comes to drugs, not like with alcohol, where there has to be evidence of impairment or a statutory blood alcohol level. In addition to testing for illegal drugs like cocaine, heroin, cannabis, amphetamine, and methamphetamine the Phillips roadside drug tester also yields a positive result for a variety of legally prescribed drugs, like benzodiazepine anti-anxiety drugs, amphetamines prescribed for ADHD, and of course it cannot distinguish between medical marijuana and plain old pot. By the time an immunoassay test is done to see what’s really what, you’ve already probably spent the night in jail having really broken the law or not.

Let’s be real. This is not about impaired driving, it’s about keeping marijuana criminalized one way or another. Pot is about the only illegal drug you can get away with using and not being seriously impaired in your driving (cocaine, maybe). Heroin junkies and meth freaks are going to show admissible evidence of impairment if they’re high, slurred speech, swerving out of lanes, etc. Potheads don’t make it easy for cops. What Rep. Jones means when he says “when you’ve got a guy you know is on drugs” what that means, translated from copspeak is “the guy looks like he’s high but since he’s only high on pot, he hasn’t really done anything that constitutes admissible evidence of impairment.” Potheads pass roadside sobriety tests with flying colors. I know I have.

The only reason Rep. Jones thinks this is a problem is that because he was a cop, his friends who are regular marijuana smokers weren’t likely to share that fact with him. The only cops who know that their friends get high are the cops that are potheads themselves. A lot of confiscated weed never makes it to the evidence room. If Jones knew how many people regularly and safely drive under the influence of marijuana, he might have a different opinion. Maybe, but not likely, remember he thinks like a cop, and some cops just don’t seem to think the way normal folks do.

Let’s take a survey. How many of you know someone who likes to smoke marijuana? Now how many of them do you think never puff before or during a drive? Based on my personal experience, the people that I know, and the people that I’ve met at dealers’ houses, if someone smokes pot regularly, they also regularly drive stoned. Since there are tens of millions of Americans who light up regularly, that means that the guy in the lane next to you, might be really grooving on the jamband channel on XM. Ain’t no bout a doubt it. I don’t know any regular pot smokers who don’t smoke and drive. I’ve shared a joint at 125 mph in a Lotus Europa and with guys about to go do a ton and a half on their Hayabusas. Baruth’s already told us about roaches he’s found in press cars. Everyone got home safely just fine. A friend once described his routine when driving long distances on the Interstate: light a joint, pop in a cassette. Flip the cassette, light up another joint. When cassette’s done you’re 100 miles down the road and you iterate. Lather, rinse, repeat. Diamonds on my windshield. Roll right through the night.

Since you now know that your friends who smoke dope indeed smoke and drive, do they appear to be any more “impaired” than any other driver? Are they erratic or unsafe drivers? Sure, they might space out and miss an exit now and then, but they aren’t impaired in the sense that a drunk is. They’re buzzed, but not a road hazard.

I’ve been smoking pot off and on (mostly on) since it was coming home from Vietnam in grunts’ duffel bags. My old shrink said that while it might degrade my performance doing high level math problems, there’s no way that I could smoke enough marijuana to impair my cognitive abilities. Since pot is not known to affect reflexes the way alcohol or other drugs do, there’s just about nothing about pot that seriously impairs driving – at least for large numbers of dope smokers who drive high.

Yes, it’s not a good idea for novice pot smokers to drive when high. Once, when he was in law school a friend who wasn’t a serious smoker came over and we shared some weed. Munchies and thirst ensued, so a bunch of us piled into my car and I drove around the corner to the Beverage Depot, an old Victorian house converted to a drive through beer store. When we actually started to drive through the house, he just lost it and started to freak. So if you’re not too experienced with pot, don’t fire up a kush bomber and then go for a spin. Frankly, I prefer the purple sativa strains to the skunky kush indica stuff. Sativa gets you high. Indica gets you stoned. If you have any significant experience with either, though, neither will put you into a bridge embankment.

So yeah, I get high behind the wheel. So what? Believe me, as a narcissist, it’s one of my lesser flaws. I’m demonstrably not impaired behind the wheel. I’ve smoked behind the wheel hundreds of times and gotten behind the wheel stoned even more often than that. It’s not case of God protecting drunks and fools. I’m a safe driver.

While not pristine, I have a fairly clean driving record, and I might have gotten two or three tickets for minor speeding in almost four decades of driving. No other moving violations. Even with warnings, I don’t think I’ve been pulled over more than a half dozen times. The most points I ever had on my driver’s license was 4, usually it’s been zero. Behind the wheel I’ve never caused or been in a serious accident and nobody’s ever accused me of driving in a less than safe manner. And yes, I’ve driven stoned with my kids, now grown in the car. My daughter has a clue about my recreational activities and she’s never said, Dad, you can’t drive your granddaughter when you’re stoned. Like I said, I’m a safe driver.

Unlike smoking and driving, when drinking and driving is concerned, I’m a novice. I’m not much of a boozehound so I haven’t really gotten drunk that many times to begin with. Once on a New Years after a day’s long party at my in-laws, my wife was far too drunk to drive and while I had had a few, I was more sober than she was so I took the wheel back to the bed & breakfast. I don’t know if I was over the legal limit or not but I felt impaired. It was not a comfortable experience, a bit nerve wracking and not something that I’d like to do again.

So as far as impaired driving is concerned, I haven’t really driven impaired much in my life, with the possible exception of being tired, and I’ve smoked a lot of dope. I lived in Ann Arbor, dope capital of the midwest, for a decade, invented a bong, and been guest listed and backstage all access passed to shows put on by Marin County musicians. They really do indeed smoke the bomb – someone with the Kimock band handed me a fat roach backstage at the Wetlands, I smoked it in the Holland Tunnel and was buzzed off it all the way through Jersey. I’ve known some independent agricultural commodities brokers who moved weight. Some of you may remember when restaurants brought you your check on a little tray from American Express. They were maybe 8″ by 4″, had a small lip around the edge and were made out of blue plastic. I got one and it made a great rolling tray. Once, as a token of his gratitude for some *fungal fun a friend who was a grower and high level dealer left that tray filled up and piled about 3″ high with Thai weed so potent you could almost get high just smelling the stuff.

Obviously, I’ve been under the influence of marijuana many, many times. If you do something, do it well and as long as I can afford it, I prefer something potent and tasty to some commercial dreck, so there have been times when I was pretty high, radioactively high. There was a weekend with some Thai stick and hash oil that ended with everyone looking like they had a blue aura. So I’ve been high, really high, almost tripping high, but I’ve never been impaired behind the wheel as badly as when I’ve been tired. Sleepy drivers are a real danger because there is almost nothing you can do to stop from falling asleep once that process has started. I used to try to tough it out, but then I realized that getting there 20 minutes sooner isn’t worth a wreck. Now when I start to get sleepy behind the wheel and a caffeinated beverage doesn’t do the trick, I pull over at the next rest stop or service plaza and get some shuteye. Then I roll a joint and head for the on ramp.

*Do not, I repeat, DO NOT mix driving and psychedelics – you are definitely impaired when tripping, though I did once set a record on an arcade video racing game after a few microdots. I don’t know if it was P.J., Kenney or Beard, but one of the NatLamp originals said there were three places where it was a really, really bad idea to trip: at work, behind the wheel, and in front of your parents. Want some hippie nostalgia? Once we took some nice cubensis shrooms (the easiest recreational drug you can make at home) and while we were waiting to get off we decided to drive our split window Microbus to a large park that’s laid out on some natural and man made islands in the Huron River. It was a gorgeous day, just a perfect summer day. As we watched our two year old chasing some ducks by the water’s edge we realized that we were in no condition to drive, so we spent a few hours at the park playing with our kid till we came down enough to drive home safely. Remember, if you must trip, trip responsibly.

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California: Cop Accused of Faking DUI Reports Thu, 23 Sep 2010 14:11:46 +0000

Being arrested for driving under the influence of alcohol (DUI) can cost a motorist thousands of dollars in court fines, insurance costs and attorneys’ fees. At least 79 accused drivers were notified last Friday that the police officer that charged them with drunk driving had likely falsified at least one piece of evidence. Sacramento County District Attorney Jan Scully threw out the cases after an investigation into the conduct of Sacramento Police Officer Brandon Mullock, 24.

Scully opened the inquiry into Mullock’s conduct after a deputy district attorney preparing a DUI case for trial watched a dashcam arrest video and noticed that the raw footage differed substantially from Mullock’s written account of the incident in a police report. The case was dropped in June.

“It is fundamental to our system of justice that prosecutors only proceed on cases where the evidence is trustworthy and was legally obtained,” Scully said in a statement. “The United States Supreme Court has said that the prosecutor should seek not simply to win a case, but to see that justice is done. The California Supreme Court has said that public prosecutors are charged with the important and solemn duty to ensure that justice and fairness remain the touchstone of our criminal justice system.”

According to Scully’s office, most of the defendants were convicted in a court of law despite Mullock’s legally unsound decision to detain the motorists, despite his misuse of preliminary alcohol screening and despite wild inaccuracies in his field interviews.

“Drunk driving is one if those crimes which is highly susceptible to falsifying evidence,” California DUI attorney Lawrence Taylor explained on DUI blog. “This is because the offense is highly dependent on the cop’s own observations and opinion. Typically, proving ‘driving under the influence of alcohol’ depends upon the officer’s testimony of such symptoms as weaving on the highway, odor of alcohol on the breath, flushed face, slurred speech, bloodshot eyes, poor balance, staggering when walking, etc. Usually, there are no other witnesses to contradict these ‘observations’; certainly, no one will believe the accused… The motive? Fulfilling quotas, overtime pay for testifying in court, promotions for high numbers of arrests, gaining awards in personnel files from MADD, etc.”

The district attorney’s office has provided each convicted motorist with documentation they can provide to insurance companies and employers to remedy some of the damage done.


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New Mexico Supreme Court Upholds Phone Tip DUI Conviction Tue, 29 Jun 2010 14:10:57 +0000

The New Mexico Supreme Court on Thursday expanded the ability of police to jail suspects for driving under the influence of alcohol (DUI) by allowing arrests to be made solely based on third-party tips. The ruling was handed down two weeks after the same court had relaxed DUI arrest rules so that motorists sleeping off a night of drinking in their automobiles would not be hit with the same penalty as if they had driven away (read decision).

On December 22, 2007, Marcos Martinez was taken into custody for drunk driving in the city of Santa Fe not because an officer saw him commit a crime, but because someone who works at a mall called in a tip. Santa Fe Police Sergeant Troy Baker responded to the call which alleged that a man was staggering in the DeVargas Mall parking lot, eventually driving away in a van. The caller had provided a license plate, so Baker went to the van owner’s home to investigate. Inside the home, Martinez was clearly drunk and unlocked the door when Baker knocked. Baker entered and arrested Martinez.

A district court found the arrest unlawful under the common law “misdemeanor arrest rule” that states a suspect may only be arrested for a misdemeanor that is committed in an officer’s presence. The rule does not apply to felonies.

“Under the common law rules for warrantless arrests, there is an inherent balance between public safety and a suspect’s constitutional rights,” Patricio M. Serna explained in the unanimous decision. “Because felonies are a greater concern with respect to public safety, officers are granted more latitude when conducting investigations of such crimes. Conversely, since less severe crimes (misdemeanors) do not threaten public safety to the level of felonies, a warrantless arrest of a suspected misdemeanant cannot be made unless the arresting officer personally observes the offense.”

The court then decided that although the legislature had designated first-time DUI to be a misdemeanor and not a felony, it would rescind the common law tradition and create a new category — a misdemeanor that is not a “minor crime.”

“Given the compelling public interest in eradicating DWI occurrences and the potentially deadly consequences, the crime of DWI should be treated as a felony for purposes of warrantless arrests,” Serna wrote. “Although a DWI offender who has had less than three convictions would only be guilty of a misdemeanor, such a classification makes no difference in the severity of the offense’s consequences, nor does it dilute the public’s concern.”

The court added that it was important to avoid requiring a warrant before attempting to arrest a suspect not seen driving because that individual might later drive a car.

“In addition to the effect on the evidence, there is also a risk that during the time period in which the officer is obtaining a warrant, a suspect may get into his or her car and drive away, endangering both himself or herself and the public at large,” Serna wrote. “Such a risk is untenable given the strong public interest in deterring the crime of DWI…. Instead, the warrantless arrest of one suspected of committing DWI is valid when supported by both probable cause and exigent circumstances.”

A copy of the decision is available in a 30k PDF file at the source link below.

Source: PDF File New Mexico v. Martinez (Supreme Court, State of New Mexico, 6/24/2010)


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Oregon Appeals Court Throws Out DUI Eye Test Thu, 24 Jun 2010 14:21:55 +0000
The Oregon Court of Appeals earlier this month threw out a commonly performed roadside sobriety test as unscientific. A divided three-judge panel found the accuracy of vertical gaze nystagmus in establishing drunkenness remained unproven in the eyes of the court.

Curtis Wendell Bevan had passed through a laser speed trap in Umatilla County at an alleged 64 MPH in a 45 zone. Officer Gutierrez followed Bevan briefly and did not note any signs of erratic driving before pulling him over. Gutierrez did smell alcohol on Bevan’s breath, and Bevan admitted drinking two beers — the empty cans were still in the car. On this basis, Gutierrez administered a series of field sobriety tests.

Bevan failed the horizontal gaze nystagmus (HGN) test where he was asked to follow a penlight with his eyes as the light moved from side to side. When the eyes jerk involuntarily, that motion is known as “nystagmus” and is caused, according to Gutierrez, when an individual has consumed an excessive amount of alcohol or narcotics. Bevan “maintained his balance perfectly” on the one-leg-stand test and scored four out of eight on the walk-and-turn-test (higher than two is a failure). Gutierrez explained a final sobriety test during lower court proceedings.

“We did the vertical gaze nystagmus [VGN test], which instead of going side to side, I went up and down twice, and nystagmus was present in his eyes,” Gutierrez explained.

Gutierrez arrested Bevan, who then refused to take a breath test. Two trained witnesses who interacted with Bevan during his arrest testified that, in their professional opinion, Bevan was not drunk and that Gutierrez had a bad attitude toward Bevan. Nonetheless, based on the vertical nystagmus test being presented as evidence as reliable as the horizontal nystagmus test, the jury convicted Bevan. The appeals court reversed.

“We reject the state’s argument that the scientific principle underlying the VGN test has already been accepted by this state’s appellate courts,” Judge Darleen Ortega wrote for the majority. “Here, the scientific proposition underlying the evidence at issue is that there is a causal relationship between the consumption of alcohol in quantities greater than usual for the individual consumer and the type of nystagmus measured by the VGN test — that is, jerking when the eyes move up and down. That proposition may be valid (although the record here does not establish its validity); however, it is not the same proposition that underlies the HGN test, nor is it a logical consequence of the scientific presumption underlying the HGN test.”

Because the evidence was improperly admitted, the court found no alternative but to assume that this added evidence may have been enough to sway the jury toward a guilty verdict.

“Although there was other evidence that defendant was under the influence and Gutierrez’s testimony about the VGN test was a relatively brief part of the evidence offered at trial, the prosecutor referred to the VGN evidence in the opening statement and closing argument, thus emphasizing the evidence for the jury’s consideration,” Ortega wrote. “Two of the jurors apparently voted against a guilty verdict based on a record that included the erroneously admitted testimony about the VGN test. Under the circumstances, we cannot say that there is little likelihood that the erroneous admission of the VGN evidence affected the jury’s verdict.”

A copy of the decision is available at the source link below.

Source: Oregon v. Bevan (Court of Appeals, State of Oregon, 6/5/2010)]

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Michigan: Man With 0.00 BAC Sues Over DUI Charge Wed, 23 Jun 2010 17:30:20 +0000

Motorist Paul Miller filed a federal lawsuit against Sanilac County, Michigan sheriff’s department after he was accused of driving under the influence of alcohol (DUI) despite being completely sober. The US Court of Appeals for the Sixth Circuit earlier this month ruled that his case should be tried by a jury.

On February 19, 2006, Miller had been driving home from a demolition derby at around midnight on a cold, icy evening. Miller drove through a stop sign, unable to stop because of the slick road conditions, as Deputy Sheriff Jim Wagester watched. Wagester pulled Miller over claiming that he had been driving 60 MPH without a seatbelt, that he failed to immediately pull over, that his eyes were “glassy” and that he “detect[ed] a slight odor of alcohol coming from [Miller's] breath.” Miller said that Wagester fabricated the charges.

After learning that Miller had been arrested once before for DUI, Wagester administered five standard field sobriety tests in the freezing weather, insisting that Miller failed four of them. Miller refused a breathalyzer test, saying he only trusted the accuracy of blood tests. Wagester responded by slamming Miller against his patrol car, handcuffing him and driving him to a hospital for the blood test. Wagester charged miller with: failure to use a seatbelt, no proof of registration, no proof of insurance, reckless driving, refusal to submit to a breath test, minor in possession, and 0.02 percent blood-alcohol-no-tolerance-law violation.

The lab eventually reported that Miller’s blood alcohol concentration (BAC) was 0.00 and that he tested negative for narcotics. Although police dropped the charges, Miller sued for excessive force, false arrest and malicious prosecution.

The court of appeals threw out the malicious prosecution charge as they related to the civil infractions like failure to wear a seatbelt and refusing a breath test. Only criminal charges like DUI could be considered malicious prosecution, so the appeals court found that a jury should decide whether Wagester had probable cause to arrest to determine whether the criminal prosecution was malicious.

“The fact that Miller’s blood alcohol was found to be 0.00 percent casts doubt on Deputy Wagester’s claims that Miller smelled of alcohol and failed the field sobriety tests,” Judge Gilbert S Merritt Jr wrote for the majority. “Although Wagester’s claims, if believed, would constitute probable cause to arrest for driving under the influence of alcohol, a jury could reasonably conclude, in light of the 0.00 percent blood alcohol result and Miller’s testimony, that Wagester was being untruthful generally about his observations and did not have probable cause to believe Miller was drinking. In light of the conflict in the evidence, the jury could conclude that Wagester was lying.”

The court also questioned the reckless driving charge because the icy conditions represented a mitigating circumstance. Because the reckless driving charge requires a showing of “wanton disregard for the safety of persons or property” the icy conditions create a factual question for the jury. The court found absolutely no evidence for Wagester’s filing of the minor in possession charge.

The court dismissed the claims against the county government and some of the excessive force claims but upheld Miller’s remaining points as fit for being decided by a jury.

View a copy of the decision in a 75k PDF file.

Source: PDF File Miller v. Sanilac County (US Court of Appeals for the Sixth Circuit, 6/4/2010)


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Missouri Cops Harass Video Vigilante A Third Time Fri, 04 Jun 2010 14:30:57 +0000
It has been almost three years since a young Saint Louis, Missouri motorist drew national attention by videotaping an out-of-control police officer’s profanity-laced tirade during a traffic stop (view video). St. George Police Sergeant James Kuehnlein was fired because of the bad publicity generated by the incident captured by the taping system that Brett Darrow, 23, installed in his 1997 Nissan Maxima. On Saturday, St. Louis County Police stopped Darrow once again.

Darrow was with his girlfriend that evening when he came upon a drunk driving (DUI) roadblock. Because he was not in his Maxima, Darrow’s only recording tool was his cell phone which captured 50 seconds worth of the interaction with Officer Kevin Lane before the phone was seized and Darrow ordered out of his car. Darrow complied, locking the door while his girlfriend waited in the passenger seat. Officer Lane then took the keys out of Darrow’s pocket, entered the car without permission, and proceeded to move it down the street.

With the phone turned off and no longer recording, Darrow says Officer Lane began yelling at him in a profanity-laced style “very similar to Sergeant Kuehnlein’s rant from the St. George video.” Sergeant David Stuckmeyer, supervisor for the highway safety unit, intervened. He recognized Darrow.

“I want to leave now,” Darrow told the sergeant. “Do you think I’m drunk? You don’t smell any alcohol do you? I’m not slurring my words. You know I’m not drunk. Why am I not on my way?”

Stuckmeyer did not answer. Darrow complained that his car had been searched and that he was being detained without warrant or probable cause. Stuckmeyer insisted that the roadblocks were set up to check for drunk drivers. In the last fiscal year, however, Stuckmeyer’s unit was responsible for generating 2864 seat belt tickets which has helped to land at least $275,000 in state and federal grants. After finally being told he could leave, Darrow asked for his driver’s license and cell phone.

“Still, as I sit here a few days later, I cannot believe the brazen attitude of all of them towards someone who hasn’t done anything wrong,” Darrow told TheNewspaper. “Apparently they just won’t learn.”

Darrow intends to ask for the dashcam videos from the police cruisers that had their lights flashing on the scene. Listen to the recording of the first fifty seconds of the incident in a 200k MP3 file at the source link below.

Article Excerpt:

Transcript of audio recording
Brett: Hi.
Officer Lane: You got your driver’s license on you?
Brett: Yeah. [Hands license over]
Officer Lane: How much have you had to drink tonight?
Brett: Nothing.
Officer Lane: Nothing?
Brett: No.
Officer Lane: Why are you in such a bad mood tonight Brett?
Brett: I don’t like being stopped.
Officer Lane: You don’t like being stopped?
Brett: I don’t want to answer any more questions. Am I free to go?
Officer Lane: No. Not until I tell you you are free to go. What is your problem Brett?
Brett: I told you I don’t want to answer any questions.
Officer Lane: Let me see your eyes.
Brett: Am I free to go?
Officer Lane: No, you are not free to go. Let me see your eyes.
Brett: Why do you need to see my eyes?
Officer Lane: Cause I’m asking to see your eyes. Turn your phone off
[Darrow moves phone from his lap to the center cup holder]
Officer Lane: Let me see your phone.
Brett: No
Officer Lane: Let me see your phone.
[Lane reaches in the car and grabs the phone]
Brett: Are you seizing my phone?
Officer Lane: Let me see your phone
Brett: Can I see a supervisor?
[Phone powered off]

Source: MP3 Audio recording of DUI roadblock (Brett Darrow, 5/29/2010)


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“Lohan-Proof” Your German-Market Volvo For €850 Fri, 28 May 2010 18:43:13 +0000

Around the world, drunk driving is a deadly problem without an easy solution. After all, the link between driving under the influence and generally screwing up your life (and the lives of others) has been conclusively proven, and yet the problem continues. What to do? Volvo’s answer: buy a Volvo and spend €850  (plus up to €90 for installation) on “Alcoguard,” a dealer-installed optional breathalyzer ignition interlock. With this system in place, drivers must blow into an interlock, proving that they are beneath the legal blood-alcohol-content limit before the vehicle will start.

Similar systems are used as probation terms for repeat DUI offenders in several US states, where they have been effective yet controversial. But, as Sebastian Renz puts it in a column in the latest print edition of Auto Motor und Sport

Nobody consciously drives drunk. And anyone who might drive drunk isn’t going to buy this device

Needless to say, we couldn’t agree more. And we applaud Volvo’s decision thus far to not waste money trying to market this pointless feature on US-market Volvos. On the other hand, maybe they are missing an opportunity: like all pointless vehicle options, this one might actually do quite well in the Los Angeles area.

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Utah Supreme Court Allows DUI Stop On Vague 911 Call Wed, 19 May 2010 14:03:54 +0000

Police can pull over a car that has committed no traffic violation based solely on vague accusations made in a 911 call, the Utah Supreme Court ruled Friday. The court considered the case of Jose Baltarcar Roybal whose live-in girlfriend, Annalee McCaine, called 911 after the pair had a fight August 8, 2005.

“The person that’s been living with me is an [expletive], and I want him the [expletive] out of here,” McCaine told the emergency operator. “He’s out putting stuff in his van… He’s going to be gone before you get here.”

McCaine said the pair had been drinking and that Roybal was about to drive off to the south. She provided a description of Roybal and his van. Ogden Police Sergeant Chat Ledford received the dispatch and spotted the van which he believed was driving “really, really slow” on 30th Street. Although Roybal had violated no traffic laws, Ledford believed the slow driving was a sure sign of intoxication and initiated a traffic stop.

The court considered at this point whether the officer’s actions were justified, as the Fourth Amendment prohibits unreasonable searches and seizures. The question turned on whether the officer had reasonable, articulable suspicion that criminal activity had taken place before he detained Roybal. A trial judge believed the Ledford acted correctly, but the court of appeals disagreed. A divided high court sided with Ledford.

“Looking to the totality of the circumstances in the instant case, we believe the 911 call was sufficient to provide the dispatcher with reasonable suspicion that Roybal was driving under the influence,” Justice Michael J. Wilkins wrote for the majority. “Irrespective of the fact that McCaine was Roybal’s live-in girlfriend, she was an identified citizen-informant who is presumptively reliable. Her personal involvement with Roybal, on its face, neither weakens, nor strengthens, that presumption.”

The majority concluded that the McCaine’s drunken call to 911 offered sufficient evidence that Roybal was also intoxicated and therefore could be stopped unless the officer saw evidence to the contrary.

“Once a reasonable suspicion is reached by the originator of the information — in this case, the dispatcher — the responding police officer is entitled to rely on the information unless the officer’s personal observations or interaction with the suspect present indications to the contrary,” Wilkins wrote. “That is to say, if the suspect’s actions are not inconsistent with the reasonable suspicion, the police officer may pursue the suspect and stop him or her immediately.”

Justice Ronald E. Nehring disagreed that the stop was justified because the police officer was not acting on solid information.

“I am troubled by the inference made by the majority,” Nehring explained. “The information from the dispatch established only that Mr. Roybal was in a white vehicle and that he had something to drink. People drinking together can individually consume various amounts of alcohol, or no alcohol at all, and it is erroneous to assume that the mere fact that people are together means they have had the same amount to drink. Our court of appeals has soundly rejected the implication that the state can impute unlawful activity to hyper-cautious driving.”

Nonetheless, the court reversed the appeals court decision and upheld Roybal’s conviction for driving under the influence of alcohol (DUI). A copy of the ruling is available in a 32k PDF file at the source link below.

Source: Utah v. Roybal (Supreme Court, State of Utah, 5/14/2010)


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West Virginia Supreme Court: DUI Does Not Require Proof Of Driving Mon, 10 May 2010 14:03:04 +0000

State officials can punish an individual for driving under the influence of alcohol (DUI), even if they are unable to prove the accused was ever behind the wheel, the West Virginia Supreme Court ruled Thursday. The decision came in the case of Eric R. Cain who was found lying passed out on in front of his car on Route 19 by Marion County Sheriff’s Deputy Todd Cole at around 2:30am on June 2, 2007. The car had been safely parked and there was no key in the ignition.

Cole arrested Cain for DUI after a breath test estimated Cain’s blood alcohol level at .15. Six days later, the state filed an order revoking Cain’s driver’s license for a full year. In addition, Cain was ordered to pay a number of fees, including the costs an alcohol education program. Cain appealed the administrative order, and a Department of Motor Vehicles (DMV) employee found him guilty. Cain appealed that judgment to circuit court Judge David Janes who overturned the DMV decision because the state could not prove Cain did not get drunk after he parked his car. The high court disagreed with Janes, asserting that state law allows police officers to impose certain forms of punishment based solely on reasonable suspicion that a crime may have taken place.

“All that is required to seek a license revocation under West Virginia Code Section 17C-5A-2 is that the arresting officer have ‘reasonable grounds to believe’ that the defendant committed the offense of DUI,” Justice Thomas E. McHugh wrote for the court. “Rather than requiring an arresting officer to witness a motor vehicle in the process of being driven, the statute requires only that the observations of the arresting officer establish a reasonable basis for concluding that the defendant had operated a motor vehicle upon a public street in an intoxicated state.”

Judge Janes had ruled that the arresting officer was obligated to identify specific facts and evidence that give rise to a reasonable suspicion that a crime was committed. Cain did not testify in his own defense at the administrative hearing, leaving no direct evidence that Cain had been driving while drunk. The supreme court ruled that the burden was properly on Cain to prove his innocence.

“The record is devoid of any factual basis for the arresting officer to believe that Mr. Cain consumed the alcohol he acknowledged drinking only after he parked the vehicle,” Justice McHugh wrote. “The applicable burden of proof at a license revocation proceeding is ‘proof by a preponderance of the evidence.’ By citing the fact that Mr. Cain did not testify or present evidence on his behalf, the hearing examiner was not wrongly shifting the burden of proof to the appellee. Instead, the examiner was merely recognizing that the only evidence before him was the testimonial evidence of the arresting officer and the documentary evidence provided through the DUI Information sheet.”

The supreme court reversed the circuit court ruling. A copy of the decision is available in a 70k PDF file at the source link below.

Source: PDF File Cain v. West Virginia DMV (Supreme Court, State of West Virginia, 5/6/2010)


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Tovarishchi Don’t Let Tovarishchi Drive Drunk Sat, 27 Mar 2010 19:05:39 +0000

Quick: Which country will have the world’s toughest DUI laws? You won’t believe it.

Despite the MADDening work of Mothers Against Drunk Driving, the average inebriated American driver usually gets away if he or she passes a field sobriety test without bursting into loud laughter, or if caught with a blood alcohol content below 0.08 percent.

Russia, a country that – according to popular wisdom – runs on vodka, soon will join the growing league of zero tolerance countries. According to Der Spiegel, Russia’s President Dmitrij Medwedew introduced a law that lowers the allowed BAC in Russia from currently 0.03 percent to the nyet level of 0.0 percent. Russia will join many Eastern European countries which (surprise, surprise) already demand tea-totaling traffic participants. Most of the EU allows 0.05 percent, says Wikipedia. In the U.K. you can have a pint more: 0.08 percent.

China, the country with some of the world’s highest accident rates, will also impose stiff penalties, says China Car Times. As of April 1, drivers caught with any alcohol in their blood will lose their license. China has an odd points system that gives you 12 points to start with, and then points will be subtracted. Once you reach zero: No more driving. Don’t buckle up for safety: Your points go from 12 to 10. Driving drunk will cost you 12 points – you are out. Driving with a fake license or a fake plate did cost you only 3 points, as of April 1, this will also increase to 12 points. Your fake license will be taken away.

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Colorado: Crime Lab Generates False DUI Readings Tue, 15 Dec 2009 18:50:15 +0000 Grin and bear it!

At least eighty-two motorists in Colorado Springs, Colorado may have been falsely accused of driving under the influence of alcohol (DUI) based on unreliable blood test results. After double-checking its own work, the city’s Metro Crime Lab on Friday admitted that out of 1000 tests conducted since January, no fewer than eighty-two results were inflated above the driver’s true blood alcohol content. More incorrect readings could be discovered as re-testing continues.

“All of these samples are being re-analyzed by a senior forensic chemist and the Metro Crime Lab is issuing amended lab reports with the corrected results to the involved criminal justice entities,” a city press release explained. “The Metro Crime Lab has initiated a formal corrective action plan, and continues to investigate the root cause and full scope of the problem. To date, the lab has a method for identifying affected cases, and has already implemented new policies and procedures to prevent the problem occurring in the future.”

The Colorado Bureau of Investigations is performing its own independent investigation of the lab to identify the source of the erroneous readings. Agilent Technologies, manufacturer of the blood testing machines, insisted its equipment was working properly. The city prosecutor’s office and Colorado Department of Revenue are looking to see whether the amended test results will affect any drivers convicted of DUI. If so, driver’s licenses could be reinstated, criminal charges dropped and fines refunded.

“These agencies are fully supportive that corrective actions are being implemented,” the release explained.

The city claims that the errors were uncovered during a routine quality assurance check and that none of the lab’s other services have been affected. California DUI attorney Lawrence Taylor believes the errors are inherent in DUI cases that rely so heavily on readouts from fallible machines.

“Yes, tests do lie… more often than the public is aware,” Taylor explained. “The only thing unique in this story is that the inaccuracies were discovered — and published.”

Taylor cited as one example that improperly preserved blood can ferment and create alcohol where none existed before.


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Britain’s Camera Fetish: Bad For Privacy, Good For Comedy Thu, 10 Dec 2009 17:13:09 +0000

This guy is being called Britain’s drunkest driver, after Old Blighty’s ubiquitous security cameras caught him urinating on his own car before driving off.

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