While there isn’t a criminal defense lawyer who doesn’t bemoan the fact that defendants, by and large, ignore what we consider monumentally sound advice, every once in a while the other side accuses us of something that warms the cockles of our hearts. This is such a time :
The state Attorney’s Office said that DUI defense attorneys are part of the problem. Many advise against taking breath tests so someone can avoid giving up evidence used against them. Eyewitness News checked online and found several websites that spell out what to do and not do if you’re stopped.
It’s not that lawyers promote criminal or dangerous conduct. I don’t. No one I know does. And yet, we’re part of the problem. It looks like we’re doing something right.
The problem is that motorists stopped for drunk driving are refusing breathalyzer tests. Everybody knows those tests, where you blow into a little black box which magically tells you how drunk you are using an algorithm that’s never been revealed so that it can be independently tested and verified, and with more false positive flaws than you count with your pants on.
It is also very frustrating for law enforcement. The word is out in Florida that if you’re suspected of driving drunk you should not submit to a breath test.
“I think in county court, DUI is probably 40 percent of the docket,” said Perlman.
However, at least four out of 10 in Florida refuse a breath test, making prosecution more difficult.
For those of you inclined toward a motto to display on your business card, this might give you pause for thought: Making prosecution more difficult since 1982.
On the other hand, it’s curious that the story is reported from the perspective of the police and prosecution, as if there is some obligation on the part of folks to cooperate, if not facilitate, in their own conviction. Is that the perspective of Florida’s WFTV 9 in its fair reporting?
Drawing blood when someone refuses a breath test has been done in Florida by Brevard and Hillsborough counties. However, after gaining a conviction, Brevard County saw it overturned.See? There’s the other side! You can’t get much fairer than that. And so, as Americans look forward to celebrating the upcoming 4th of July week by chugging down a six pack or two, there are three things to think about.
“I would love to see the law changed because I’m frustrated as a prosecutor with the limitations of proving a drug or chemical substance case,” said Perlman.
Unless the state Supreme Court rules differently, blood draws will only be allowed when someone’s hurt, or a suspect is stopped for at least a third time.
“I definitely would support it, yes I would,” said beachgoer Jessie Gainey.
“I think it would be fine,” said Victoria Mauro. “It’s the law to not drink and drive so I don’t see why not, why it would be wrong.”
“I think it’s against your rights, more than a breathalyzer,” said Ted Kryla.
First, don’t drive drunk. It stupid and dangerous to you and everybody else. No, your having a good time isn’t worth my child being killed. Just don’t do it.
Second, if you’re stopped by police, do not consent to a breathalyzer test. Do not confess when asked whether you’ve been drinking. And try not to drool.
Third, be thankful in those states where police don’t have the authority to lay you across the hood of their cruiser on the side of the road and stick needles into your veins. For anyone who thinks this is a fine idea, pray no cop thinks you’re driving drunk.
This message is brought to you by a proud part of the problem.
Your, OUR, rights are being slowly erroded by those that would like it to be an easy job (police, DA’s and Judges) of incarcerating and fining people. Some even go so far as to plant “evidence” (Troop D NYS Police), and they will continue as long as WE, the people, continue to allow it. I guess Calvera was right, “If god did not want them sheared he would not have made them sheep.”
I notice that the vendors of BAC detectors claim their products are DOT approved. My question is what procedure did the DOT use approving these products?
I think the DOT is biased and should not be permitted to approve BAC measuring products. That should be done by several unbiased independent agencies.
You clearly have no respect for forensic science tradition.
What does tradition have to with science? Independent verification is what matters.
As much fun as it is to be very serious, you might want to consider purchasing a digital sarcasm meter. It can be fun too.
Here in Finland, we have a system that is reasonable, in my view, balancing both the right not to testify against oneself and the society’s right to solve DUI cases:
*The police has the right to stop anyone, anywhere for a breathalyzer test. (Really, they don’t need a pretext. They can put up a temporary checkpoint at will.)
*No one is required to take a breathalyzer test. If you don’t take it, you will be taken to the nearest hospital and a doctor will take a blood sample. The police do not have to right to conduct such testing, as they don’t have medical training.
*The on-the-road breathalyzer result is only used for screening. If it is positive, the person is taken to the police station and he is administered tests with an “laboratory” breathalyzer twice or more times with intervals to determine the alcohol content of blood accurately. (Or to the hospital, if they refuse the breathalyzer.)
*The “laboratory” breathalyzers are calibrated by the State Technical Research Centre yearly, and all data on the tests is electronically stored by the Finnish National Institute of Health.
Apparently, balance is in the eyes of the beholder.
After reviewing some of the DOT technical reports I think their technical staff are unbiased but the approval process needs critical oversight.
I agree with you. From the American point of view, the situation is ripe for abuse. While even the Finnish law considers the search of a motor vehicle as a “search of a home”, stopping a motor vehicle and asking the driver to take a breathalyser test, to show their driver’s license and car license papers and to tell their home address does not require any reason at all. (A foreigner’s immigration status may be checked at the same time.) This means that there is no “right to be left alone” if you are driving a car. The police routinely stop random cars for DUI or driver’s license inspection.
On the other hand, this means that the police do not need to make up stories of pretexts for a stop which reduces habitual lying. And in practice, the cars are searched extremely seldom. Actual false DUI convictions are rare, as the persons involved in handling the blood sample or “laboratory” breathalyser data are health professionals whose livelihood is not dependent on this trade but who do this as a part of normal medical work.
It’s obvious that Florida needs more enlightened laws, and should probably consider training a cadre of DUI dogs. If Fido can find drugs that were removed from the car hours previously, surely he could tell when someone is over 0.8%!
The way to stop refusals is to make then more painful than the actual DUI. License revoked for 2 years with no Conditional license allowed and raise the civil penalty to $2-3000 or make it a Misd crime to refuse.
A motorist sometimes (e.g. in Maryland, per Brosan v Cochran) has the right to consult an attorney from the precinct cell before deciding whether or not to take the breathalyzer. My mentor litigated that point before the Maryland Court of Appeals. Unfortunately, the Court did not hold that a motorist has a right to be advised of the right to consult counsel before deciding whether to take the test, only the right to consult without an advice of rights, if asserted by the motorist.
Taking the test OR not taking the test may be the smarter move in some jurisdictions under some circumstances for some motorists; it is often a multi-variable analysis and depends heavily on local law. Certainly one should not take the test out of civic duty; no one, not even a drunk driver or alleged drunk driver, owes it to Leviathan to self-incriminate.
Ah, create another crime and throw in some extra punishment for exercising a right and not acquiescing to the will of the police. And this would be a good thing why?
In Mississippi we have the “Implied Consent” law. If you refuse the breath test, you automatically forfeit your license for 90 days.
How this is not an attempt to compel testimony, I don’t know.
For your own research, Mississippi Code Annotated Sections 63-11-21, 63-11-23(1), and 63-1-52(2)(a)
It’s fairly common. And deliberately coercive.
And it isn’t limited to criminal law. I practice license defense for healthcare providers, primarily nurses. And tomorrow I am going to a public hearing on a proposed change to the Nursing Board’s rules to take away the ability of an Administrative Law Judge to “Recommend” a disciplinary sanction. It is bad enough that the Board, with very limited court oversight (substantial evidence review for abuse of discretion is the standard) may overturn a ALJ ruling, even though they do have to explain it. But now they even want to take away that and limit the ALJ’s rulings to “findings of fact” and “conclusions of law.”
And the Board staff wants this for substantially the same reason as the prosecutors interviewed in the piece above want changes to the DWI laws. As a group the license defense attorney’s have been getting several very favorable rulings from ALJ’s over the last few years (I’m the new guy and while I have had a few good outcomes, others have carried this burden longer) and now the Board attorney’s want to make it easier to make licensees roll over and just take what the Board staff wants to impose. And the Board staff has made public statements that the license defense attorney’s are the cause of the Board staff’s problems.
It may not be a licensee’s liberty that is at stake . . . just their livelihood and profession.
And don’t even get me started on cops lying on the stand . . ..
There are a number of states that have implied consent built into their state dui statutes – if an officer pulls you over and develops reasonable suspicion that you are driving under the influence, there is implied consent – by driving, you have consented to being subjected to a breath test. If you refuse the breath test or if the officer believes you are under the influence of a controlled substance or you have two prior dui convictions, the “officer may use reasonable force to require submission to a blood test” and the blood draw is conducted at a facility by someone with medical training. Most hospitals and clinics have affidavits of blood draw on hand for the nurses to fill out after doing the draw.
Therefore, under implied consent, by refusing a breath test, you are subjecting yourself to a blood draw, which you have no right of refusal to.
I am surprisingly ok with K9 units. If the dog has undergone proper training, the likelihood of a false positive is dramatically decreased.
What really makes me nervous is new training in DRE – Drug Recognition Experts. The short version of this would be an officer can look at you and know what kind of drugs you are on. The long version is that different categories of drugs (cannaboids, central nervous system depressants, stimulants, etc) tend to result in different displays of physical symptoms.
So, the officer conducts what usually ends up being about an hour long examination – horizontal gaze nystagmus, vertical gaze nystagmus, convergance, blood pressure, eye lid tremors, muscle flacidity or rigidity, one leg stand, tongue color and texture, eye clarity, and the list goes on… However, different drugs have different reactions, and not everyone has the same reaction to the the same drug, and there are always different medically plausible reasons for these symptoms.
It comes off like voodoo to some juries. How can you know what a person is on without testing for it? And why would an officer subject a person to a nerveracking hour long examination when they could have simply performed a blood draw, and know for sure? But some juries love the CSI nature of all of these tests, and are ready to convict because reddening of the conjunctiva really sounds to them like something only a drug user would have.
Glad to hear you are ok with dogs. Do you prefer chocolate to vanilla too?
Generally, my preference is for vanilla actually.
What happened in NV, I am hoping is an anomoly. It may be a little naive, a little idealistic, I know. The handlers can manipulate the dogs’ training, and use them as just another tool of dirty cops. It is not the dogs’ fault. And I still try to hold out hope that there are still good cops out there. But I know that hope and truth are two very different things.
I left civil practice to pursue ideals of justice and joined a large district attorney’s office and worked as a liason with the narcotics unit, training the officers as to what is proper search and seizure, observing on ride-alongs, putting on kevlar and going on search warrants to obeserve and ultimately to teach. I wanted to believe that through education and information, officers could be reminded of the merits and values of serving and protecting, not merely the thrill of searching and arresting.
Every day, I woke up, put on my cape, and felt like I was making the world a better place, one informed officer at a time. Needless to say, I returned to the comforts of civil practice within a year of leaving…
I prefer vanilla too, but my clients don’t seem to care. Positivity is fine as a personal choice, but criminal defense lawyers aren’t making choices for their own lives, but for others. Sadly, the cops don’t always make our hopes and dreams come true. As President Reagan said, hope for the best, but prepare for the worst.
Forensic science is a cesspool. That’s not just my conclusion, but that of the National Acadamies of Science. And even cute dogs don’t sniff as well as people think. You don’t even want to get started discussing the voodoo of anything ending in “gaze nystagmus,” sheer, utter scientific nonsense that’s been propogated by police and courts because, well, they aren’t very good at handling sciency-type stuff. Changing the world isn’t easy, but the first step is appreciating that things aren’t always as they seem.
I’m a recovering prosecutor. It is a serious ailment.
Some of my best friends were once prosecutors. They survived.
blood draws are usually done in suspected dui, here in Wisconsin. Breathalyzer is used only to show probably cause. Some cops dont even use it, rather relying on the way the car was driven, the way the driver looks and smells, open beer cans and such to gain probably cause. The local DA was criticized for a making a deal with a a
resident of a health insurance company. the charge was a owi, but the plea ended up not being to an owi. the DA complained that no blood draw had been done by the cops.