Via Walter Olson at Overlawyered, the anonymous author of a blog called Raised on Hoecakes (which apparently is a name used in the deep south for pancakes and not an urban reference to prostitution) was searching for an image of a gavel to put in a post about law, recognizing that pictures of gavels make law posts more enlightening, when he stumbled across this National Highway Transportation Safety Administration poster:
He writes:
The concern that the government is engaged in a promotional campaign that’s facially false is certainly well-founded, but a second concern is raised as well. Implicated in this promotion is that courts have forsaken their constitutional role as neutral arbiters in an adversary system and instead, at least when it comes to drunk driving, are now part of the inquisitorial system, locking arms with law enforcement to imprison people.Cool, huh?
Only one problem: it isn’t true. Someone missed the memo telling judges to make arrests for DUI a resulting conviction 100% of the time.
According to Florida DMV records there were 33,625 DUI convictions in Florida in 2011. Of the 55,722 DUI tickets issued in Florida in 2011….
That’s a 60.3% conviction rate which means roughly 2 out of every 5 people cited for DUI are not convicted of that offense. That’s not even close to “being extinct.” Other states have roughly the same percentage of convictions.
We realize there is hyperbole in most advertising campaigns. When a fast food joint says they serve the “best hamburgers in the world!” there is a bit of “puffery” in their statement.
While the message comes from the NHTSA, an arm of the executive branch, those reading it will be unlikely to have separation of powers in mind. But what business does the NHTSA have creating a anti-drunk driving campaign that essentially states that the criminal justice system will no longer afford those accused of drunk driving with the full panoply of constitutional rights and legal protections to which they’re entitled?
The “least dangerous branch” has but one weapon at its disposal: integrity.
One of the foremost concerns voiced by courts in the performance of their function is the maintenance of the appearance of propriety. The public’s trust, and the integrity of the judiciary, depend on it. Without it, the courts are nothing, worthless. When the public ceases to believe that they can obtain redress for wrongs in the courts, then they only option available is the use of weapons. Our founding fathers were ingenious to provide the citizenry with an alternative to insurrection.Granted, not everyone accepts this premise anymore, and there are certainly no shortage of examples of judges who lack a firm grasp of their function as arbiter rather than avenging angel, but the rhetoric of due process remains largely intact, if not always the reality.
Did anybody at the NHTSA ask anybody in the judiciary if it was good by them to put up posters informing the public that constitutional rights have been “ruled extinct”? Is it cool with the judiciary that the executive branch has decided to announce that the judiciary is now an appendage of law enforcement?
Will the judicial branch step in and tell the executive branch to stop lying to people and stay the hell off their turf?
What is most disturbing is that the poster, for all that’s wrong with it, may not be all that far from truth. The same overbearing promotional campaign used to persuade people not to drive drunk seems to have had its impact on the legal system as well, with drunk driving homicides prosecuted as murder and pre-emptive punishment (such as loss of driving privileges) for the exercise of Fifth Amendment rights.
The criminal justice system has shown little antagonism toward the evisceration of rights when it comes to this “blight,” and there are no shortage of judges who are more than happy to drop the hammer on drunk drivers, refusing to allow legal niceties to stand in the way of conviction.
While Hoecakes’ argument, that by no means is it accurate that the courts have ruled fairness and constitutional rights “extinct” as demonstrated by the less than perfect conviction rate, may be true, it does not mean that the conviction rate isn’t substantially higher than it ought to be. Indeed, given the tools against drunk driving, from highway blood draws to the magic black box, the Breathalyzer 5000, it’s rather hard to imagine that anyone beats the rap.
Is there any vitality left in the “independence of the judiciary” argument, except when used in conjunction with pay increases? Does it bother the courts that they’ve gone from being merely co-opted into law enforcements latest scheme to rid society of the evil of the month, and now been subsumed into the government’s marketing campaign?
It’s too bad Piers Morgan didn’t ask Nino Scalia whether he felt this was an appropriate act by one branch of government toward another, though Scalia did state that the Supreme Court was not a political institution.
“The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erodes society’s confidence in a rule of law that evidently has no agreed-upon meaning,” write Scalia and Garner.
Posters like this don’t help either. If it’s fine with the court to have the NHTSA announce that the fix is in and courts will no longer do their job, then there isn’t much reason for their continued existence. Is that really the message they want to send?
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
To be fair, the Breathalyzer isn’t a “magical black box”- it’s a tool working on chemical analysis:
“When the user exhales into a breath analyzer, any ethanol present in their breath is oxidized to acetic acid at the anode:
CH3CH2OH(g) + H2O(l) → CH3CO2H(l) + 4H+(aq) + 4e-
At the cathode, atmospheric oxygen is reduced:
O2(g) + 4H+(aq) + 4e- → 2H2O(l)
The overall reaction is the oxidation of ethanol to acetic acid and water.
CH3CH2OH(l) + O2(g) → CH3COOH(l) + H2O(l)
The electrical current produced by this reaction is measured by a microprocessor, and displayed as an approximation of overall blood alcohol content (BAC) by the Alcosensor.”
I’m an engineer, not a chemist, but the reaction looks reasonable enough to me. Create a reference to measure the current against, and you have a fairly reliable standard for breath alcohol.
There are some potential flaws, but most are fairly self-evident. The primary one is the fact that it measures blood alcohol by measuring breath alcohol. Mouthwash can taint the sample, but only if it’s recent, and even then it’ll read a level of BAC that would imply you were already in a coma or dead.
The police are aware of this, and have standards in place to prevent this from affecting the accuracy of the reading:
“To counter this, officers are not supposed to administer a PBT for 15 minutes after the subject eats, vomits, or puts anything in their mouth. In addition, most instruments require that the individual be tested twice at least two minutes apart. Mouthwash or other mouth alcohol will have somewhat dissipated after two minutes and cause the second reading to disagree with the first, requiring a retest.”
I understand there might be legal arguments opposing it, and I’m not commenting on those; I will leave those to you. But it’s scientifically and factually inaccurate to call it a “magic black box”.
They’re available online for relatively cheap:
[Ed. Note: Link deleted per rules.]
Instead of calling it a “magic box”, try finding a copy or buying one online, and take it to a local college/university.
See if you can find a chemistry professor willing to make sure it works as intended, and as described. Maybe have him explain it a little better than I can.
Or, at a minimum, get drunk yourself, and test it to see if it works- maybe have a friend take down the readings for you.
Calling it a “magic black box”, in my opinion, hurts your credibility more than it does theirs- because by referring to it so derisively, it appears like you’re doubting the science behind it, rather than the accuracy of the device.
If you want to doubt the accuracy of the device, it’d be better perhaps to be a little more specific- or at the very least use a different term.
Or perhaps you could focus on the legal arguments around their use; either way, I would say that referring to it as a magical black box is not a good solution.
The magic isn’t the science, but the black box.
These gadgets have to be re-calibrated because they can become saturated with use. I doubt very much that the typical breathalyzer is re-calibrated as often as they should be. I would doubt the validity of any device that has not been re-calibrated in the past three months.
The chip used is irrelevant but the software is vital because that is how they deal with saturation and they if screw that up the consequences can be serious.
The DOT has some technical reports that show calibration data and they all show a lot of scatter which make me suspect these accuracy of these gadgets is much lower than claimed.
Ah NHTSA, where the Intoxilyzer 50,000 just works. It does. Of course the state purposely doesn’t retain the source code so they can tell the judge it’s impossible to turn over what they don’t possess. They just trust the source code works every time.
And it’s great how they change the FSEs every decade. No more backwards alphabet, just HGN, walk n turn, and hop around like a weirdo late at night on one leg. Because that’s what sober people do.
We have the technology…
You refer to the loss of “driving privileges” as the result of the exercise of the 5th amendment. I’ve always thought it was fairly settled S.C. precedent that travelling upon public roadways, whether in a car or not, is not a privilege but a right. Yet I hear people refer to it that way all the time.
Driving is a privilege, meaning that no one has a right to a drivers license. The suspension of the right for refusal to agree to a breath test raises a different issue, though it’s been approved on the privilege theory as an administrative measure. It’s one of the many fictions that it’s administrative, not punitive, such as sex offender registry or deportation. I do not agree with the reasoning.
How the Hoe Cake (Most Likely) Got Its Name
Enjoy.
[Ed. Note: <sigh>]
This is hardly new. For the past two years, TV stations in Arizona have been playing the “Click it or Ticket” ad… even though Arizona never instituted any such law. The subtext is obvious: the law is a whitewash, and if they can’t get you to sanction one, they’ll do what they want anyway.
Arizona has a seat belt law. The “click it or ticket” campaign was a federally funded program that provided local police departments with funding for seat belt specific enforcement. And the campaign has absolutely nothing to do with the issue involved here.
These DUI Laws are dumb. If Lawmakers don’t want drunk drivers then Ban Alcohol. If Law makers want healthy people, then ban Cigarettes, food additives and preservatives, food coloring, pollution, floride in the water, pesticides, chem trail in the air, oil and coal as an energy source, and fast cars for speeding tickets. But hey every body like to pile on the DUI band wagon, the Attys, the cops and the courts. If you want to ban DUI tickets , then ban the cops who write them. Just my take.
I’m always interested in what people who have chosen such fascinating commenter names as yours think. And they never disappoint.
Everyone needs to wake up!The judicial is run by the Executive branch, & is in bed with the cops, and their sole purpose is to steal as much money from the People as possible.In Calif.,every cop breaks 3 laws where a citation is written and there is no injured party(like speeding)Every judge in Calif. traffic courts break several laws.Most operate without a prosector which is a violation of both federal & state Constitutions.And it is a conflict of interest, because the judge is paid by the alleged plaintiff, the state.Most courts are illegally operating as a military tribunals(admiralty law)All lawyers are beholding to the court 1st, because the Bar is an unlawful Private union ! Learn & fight back. Everyone that works in any government, state or federal are our empolyees, they work for us & have no real authority over us, their creators !
And what about lawyers swearing an oath of loyalty to the Dark Lord of Admiralty Law after a secret ritual where they sacrifice babies and drink their blood?