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The Seattle Times reported that tougher DUI laws became effective in the State of
Washington yesterday. One of the laws, House Bill 2660, requires ignition interlock
devices to be installed the vehicles of, among others, all people arrested for DUI. That
word was arrested, not convicted. Not surprisingly, the law was drafted by Pete Youngers,
the Washington state public-policy director for MADD.
The other law is worse. Under House Bill 3055, which was drafted by Washington's
Association of Prosecuting Attorneys, evidentiary challenges to DUI evidence will now go
to "weight and not admissibility." This is the legalese way of saying that the
unreliability of a piece of evidence (say, a breath test) will no longer be grounds for
excluding it--a jury can hear the evidence no matter how specious it is and then decide
for itself how much weight to give it. How much weight should a jury give it? Under HB
3055, juries will be instructed to view that evidence "in a light most favorable to
the prosecution."
How's that again? A jury hearing a criminal case where the prosecution has the burden of
proof will be instructed to view that evidence "in a light most favorable to the
prosecution"? I hope the appellate gears are turning already.
Once again American citizens have lost significant rights in the name of specious public
safety, and unfortunately, the nationwide trend is toward this 'weight not admissibility'
view in DUI cases. The problem as I see it is that it takes away the trial judge's power
to regulate the admissibility of evidence in her courtroom.
If a citizen is charged with rape or robbery or murder, the judge hearing the case will
decide if the prosecution's evidence is reliable enough to be presented to the jury--it
has been done this way for centuries. We simply don't allow the government to introduce
evidence of junk science against a person. Traditionally the judge has stood as the
gatekeeper, only admitting reliable and trustworthy evidence to go before the jury. But if
you're charged with DUI, you no longer have the right to have the judge act as gatekeeper.
You really have to ask yourself, what are the proponents of these changes afraid of? Do
they really distrust judges to make the right decisions about admitting evidence in their
courtrooms? If so, why is the exception applicable only to "DUI evidence" and
not to evidence of, say, rape, robbery or murder?
I don't believe it has anything to do with judges. The simplest answer is that there is no
organization of mothers against rape, robbery or murder to pay a lobbyist to draft
legislation. Cowardly legislators have abdicated their lawmaking powers to the True
Believers who want so badly to convict citizens accused of DUI that they're willing to go
to any length to secure those convictions, even if it means throwing out civil rights,
common sense and hundreds of years of courtroom practice to do it.
Bellevue criminal defense attorney Francisco Duarte seems to agree, saying that sloppy
police practices resulted in many breath tests being thrown out of court in the first
place. "We brought it to their attention three years ago that the State Patrol failed
to maintain the (breath-test) machines according to their own procedures," Duarte
said. "They got caught, they lost (in court), they got upset and now the Legislature
has heeded their cry."
The Birmingham News runs an editorial today rightly criticizing the practice in Jefferson and St. Claire counties of allowing a nonprofit DUI program to evaluate the same offenders who take their classes. The nonprofit, called DUI Action, has been deciding how many hours of "education" DUI offenders need and then signing them up for those hours.
The program's director, Mary Lou Street, took home a staggering $184,000 in 2002 (about three times the average salary for her position) while her son, the nonprofit's attorney, took in about $81,000. Together, the two collected $1.2 million in salaries from 1998 to 2002, representing about 30 percent of the agency's revenue.
Capital News 9 of Albany, New York reported Tuesday that North Country DWIs were down from last year. This is bad news for law enforcement because its STOP DWI program is funded entirely from fees paid by convicted citizens. The article states it well: "fewer arrests mean fewer dollars." Police "remain hopeful" that they won't have to make cuts.
The Chicago area suburb of Buffalo Grove wants to be known as tough on DUIs. The Daily
Herald reports that as of yesterday a new policy requires police to impound the vehicles
of DUI suspects. Remember these are citizens accused of DUI; they have not been convicted
or even charged yet.
Under the new law, motorists will get a hearing where, presumably, they will get their
cars back if they can prove their innocence. Otherwise they must pay a $500
'administrative penalty.'
In the Daily Herald's words, "With around 500 arrests per year, the village stands to
gain annual revenue of between $200,000 and $250,000." Indeed.
This one should cause the most ardent supporters of MADD to sit up and see what the
organization is all about. The Toronto Sun reported yesterday that MADD is upset with the
government's plan to allow diners to take their own bottles of wine to restaurants. MADD
opposes the plan because "people will drink more because it will be cheaper." An
op-ed piece in today's Globe and News applauds the plan.
We're not talking about drunk driving here. We're not even talking about drinking and
driving. We're talking about wine with dinner.
When I started this blog, I intended to use the fourth estate PRIMARY CATEGORY to
improve the way journalists reported DUI stories. My assumption was that the demands of
deadlines (especially in the realm of Internet media) and the absence of notice from the
public combined to make good reporting of DUI cases a low priority. Now I'm beginning to
wonder if there's any more to it than that.
DUI stories tend to fall within three categories: the arrest/court case of an alleged DUI
driver, a change in a DUI law and new technologies in law enforcement. I'm noticing a
formula about the way each is reported.
Stories about an alleged DUI driver usually contain the driver's name and where he/she was
stopped and then some naked comment from law enforcement that DUI is suspected (or that
the suspect was arrested for DUI). It is rare that these stories ever provide any facts to
support the allegation that the named citizen actually was under the influence. The worst
of these cases are the ones that print the fact of a driver's prior conviction for DUI, as
though such a history alone is enough to explain the current DUI arrest.
Stories about changes in the law or new law enforcement methods almost universally provide
"background" in the nature of a horrific DUI accident or a 15-time repeat DUI
offender. These stories go on to provide quotes from prosecutors, police officers and MADD
representatives against a backdrop of "cracking down on" the crisis of
uncontrolled DUIs. Usually there is a grieving and angry quote from an (understandably)
grieving and angry parent whose child was killed by a drunk driver. In some cases, but not
many, a defense attorney is quoted. I have never seen a quote from someone at RIDL, the
National Motorists Association or the American Beverage Institute.
The problem with this type of reporting is that it overstates (or misstates) the DUI
problem. Yes, there are repeat offenders out there, but the driver with four convictions
or more is a relative rarity in America today. The vast majority of people arrested for
DUI are first-time offenders: law-abiding citizens with low blood alcohol levels. These
stories give readers the impression that DUIs are a problem different from the reality,
which leads to the passage of laws aimed at addressing a problem that isn't there.
The Apollo, Pennsylvania city council is the latest city government to forbid its police officers to set up sobriety checkpoints, according to Pennsylvania's Leader Times today. The Council voted unanimously October 26 to prevent the police from participating because council members believe the checkpoints invade motorists' privacy and violate their constitutional rights.
On August 31 I blogged about the hullabaloo in Murrysville, Pennsylvania when its police officers assisted with regional DUI checkpoints despite a city council resolution against it. It remains unclear how officers could misunderstand such a clear directive.
Yesterday's Murrysville Star reported the council met again and has stated in no uncertain terms that its police officers are forbidden to participate in any checkpoints.
The majority of the council agreed that checkpoints allowed irresponsible officers too much leeway. Councilman Ted Mallick said "I don't think we should have police harassing anyone. There should be no checkpoints."
The Glenwood Springs (Colorado) Post Independent reports today that citizens have taken to protesting sobriety checkpoints because they feel police are violating motorists' constitutional rights. Carbondale Police Chief Glen Schilling said protestors have been present for the last four or five checkpoints, but insists that the police are doing nothing illegal.
This month's National Motorists Association Foundation News carries the report (newsletter is available only to members--join at the site).
Of the 75,930 drivers stopped at Ohio roadblocks between 2001 and 2003, fewer than 1% were actually arrested for DUI. These checkpoints use 10-20 officers apiece and result in a "mere handful" of arrests.
Ohio Highway Patrol Superintendent Paul McClellan was the co-chairman of the Governor's
Task Force on Impaired Driving. His group issued a report that was openly critical of roadblocks as a DUI enforcement technique, concluding that "smaller enforcement groups patrolling in identified (drunken-diving) areas may be more effective than current, large-scale, stationary checkpoints."
McClellan said, "If you take [the same] amount of officers for six hours and put them on patrol doing strictly DUI enforcement, you'll more than likely have better results."
Imagine targeting lawbreakers instead of everyone.