If you or someone you know has been arrested for driving under the influence (DUI), the most important decisions to be made are whether to hire an attorney and, if so, which attorney to hire. Non-attorneys need to know that DUI defense is a specialized area of the law. There are complex issues involving the interplay between the DUI criminal case and the DUI Department of Motor Vehicles (DMV) case. Also, if an individual holds a professional license, such as a doctor, lawyer, stock broker, nurse, teacher, or pilot, there are other potential ramifications to that person's ability to continue practicing their profession. As well, if the person arrested is a non-citizen, there are issues which may affect that person's privilege to remain the United States.
Once the decision has been made to hire an attorney, the next question is whom to hire. The best advice I can offer is to seek out someone who specializes in DUI cases and has demonstrated familiarity in the particular court where the case will be filed. It is not necessarily the best decision to hire an attorney simply because he or she has an office in the same city as the courthouse. In making the decision, answering the following three questions may prove to be helpful. First, is the attorney competent? Second, do you trust the attorney to do what he or she said they would do? Third, can you work work with them?
If the answer to any of the above three questions is no, you should consider interviewing another attorney.
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Most driving under the influence (DUI) arrests initiate two separate cases. The first case is the DUI criminal case which is ordinarily prosecuted by the District Attorney in the county where the DUI arrest occurred. The second case is the California Department of Motor Vehicles (DMV) DUI case which commences a driver's license suspension action if the person has a California driver's license or a privilege suspension action if the person is licensed by a state other than California.
In the DUI criminal case, the prosecuting attorney will ordinarily file a document called a "Complaint" which alleges two separate violations of the California Vehicle Code. The first violation is driving under the influence in violation of California Vehicle Code section 23152, subdivision (a), while the second violation is driving with a blood alcohol level of 0.08% or greater in violation of California Vehicle Code section 23152, subdivision (b). To state it differently, the prosecuting attorney gets two chances to convict a person of DUI.
The California DMV is interested in whether a person was driving a motor vehicle with a blood alcohol level of 0.08% or more. This is one of the same charges the prosecuting attorney will allege, but there is a difference. While the prosecuting attorney must prove the case beyond a reasonable doubt, the DMV must only prove the DMV DUI case by a legal standard referred to as preponderance of the evidence. What preponderance of the evidence means is that the DMV must prove the case by establishing it was more likely than not that the person accused of DUI was driving with a blood or breath alcohol level of 0.08% or more.
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A Santa Clara County criminal grand jury has determined that no charges will be filed against two San Jose law enforcement officers accused of ignoring evidence and mishandling a DUI investigation of a local District Attorney investigator. The decision not to charge San Jose police Sergeant Will Manion and Officer Patrick D'Arrigo comes just one week after District Attorney Investigator Sandra Woodall, a former San Jose law enforcement officer, pled guilty to misdemeanor driving under the influence. The charge against Woodall was reduced from a felony in accordance with the plea agreement entered last week.
This announcement comes as the result of a nearly year-long investigation stemming from a multi vehicle accident which occurred on the evening of March 25, 2008. According to police reports, Woodall crashed her Cadillac Escalade into two vehicles are the intersection of Branham Lane and Pearl Avenue in San Jose. A fifteen year old girl was injured in the crash.
Sergeant Manion and Officer D'Arrigo were the first officers to arrive at the scene of the accident. Paramedics arrived prior to the officers and had already begun to treat Woodall of any potential injuries by the time the officers had arrived. The on-site paramedic noted the strong smell of alcohol on Woodall's breath immediately following the accident, however, the officers failed to indicate this observation in their accident report. Additionally, the officers did not have Woodall submit to a blood alcohol concentration test in order to determine whether she truly had been driving under the influence.
On the night of the accident, witnesses indicated that Woodall admitted that she had been drinking prior to the accident and had recently left an alcohol rehabilitation program. Onlookers noted her disoriented and belligerent demeanor as well. However, Sergeant Manion and Officer D'Arrigo both noted that they did not detect any signs of intoxication, which is why they did not test her blood alcohol concentration. Medical personnel on the scene also indicated that the officers attempted to disrupt paramedic attempts to transport Woodall to the hospital for medical attention. Of these accusations, District Attorney Dolores Carr stated, "The allegations made were serious and called into the question the integrity of law enforcement. The grand jury has made its decision and the district attorney will abide by it."
The District Attorney's Office defended their decision to present the case to a grand jury by citing the numerous conflicting interests at issue, "The reason we took this case to the grand jury is because there are always these feelings of these close ties. That's why we take it to an impartial body. I don't see how much more unbiased that can be." In addition to Woodall's employment as an investigator for the District Attorney's Office and time spent as a former law enforcement officer, Woodall's father in law is also employed by the District Attorney's Office and Woodall's husband is a San Jose police sergeant. When asked whether prosecutors believed that the two men had committed a crime, Assistant District Attorney David Tomkins replied, "The grand jury answered that question."
This announcement marks a victory for the two officers, who through this long process have maintained that they committed no wrongdoing on the night of March 25, 2008. Their attorney, Craig Brown, reiterated this point, explaining to reporters, "I think it's the right result, obviously. They are relieved, of course. They always felt that they did what was right under the circumstances."
While the decision was met with approval by law enforcement agents and those close to Sergeant Manion and Officer D'Arrigo, the public has voiced the opinion that a serious miscarriage of justice has occurred by allowing two law enforcement agents to show favoritism to one of their own without punitive repercussions.
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This past weekend marked the beginning of California's holiday season DUI enforcement period. In Alameda County, participating law enforcement agencies were provided with brand new DUI enforcement equipment in order to isolate, test, and arrest individuals suspected of driving under the influence. Included in this package of new equipment is a $750 alcohol sensing flashlight, also known as a passive alcohol sensor.
In addition to providing light to law enforcement officers, the flashlights also scan for the presence of alcohol in an enclosed area. During a traffic stop where an individual is suspected of driving under the influence, a law enforcement officer will place the flashlight inside the individual's window. The flashlight takes in air through an intake port, which is designed to detect the presence of alcohol. A sensor in the flashlight then visually displays the results of the scan on a color scale, ranging from red to green. The individual will have no idea that the officer is actually testing for the presence of alcohol inside the vehicle.
However, increased use of the passive alcohol sensors has resulted in widespread debate between avid supporters such as Mothers Against Drunk Driving (MADD) and staunch critics, such as the American Civil Liberties Union (ACLU).
According to the ACLU, the use of this tool by law enforcement is a violation of an individual's civil rights. "I'd be concerned this violates the state's vehicle code. The statute requires a person to submit to this kind of testing, and if an officer just points a flashlight into the car without the individual knowing what's going on, it seems like that would be an infringement of their rights," stated Michael Risher, a staff attorney with the American Civil Liberties Union of Northern California. Because the passive alcohol sensor looks exactly like a flashlight, the driver would have no idea that they are being preliminarily screened for the presence of alcohol when an officer approaches their vehicle.
Risher also argues that the passive alcohol sensors pose a serious disadvantage to designated drivers, who may be improperly asked to submit to chemical testing or field sobriety tests because alcohol was detected within their vehicle. According to Risher, "We hear so much about designating a driver, but this tool kind of contradicts that. It causes nothing more than a hassle and delay for a person doing the right thing."
However, Livermore police Lieutenant Mike Peretti disagrees with the ACLU's assertion that the flashlights violate any laws or civil rights. According to Peretti, "The flashlights are nothing more than an investigative tool. It is one of many we use. We would never base our entire investigation of a possible drunken-driving incident on what the flashlight says. But it lets us know that there is alcohol in the air when we stop someone."
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According to a study released by the Automobile Club of Southern California, the number of women killed in alcohol related car accidents in California has increased dramatically over the past decade. The study revealed that the number of women drivers aged 21-24 who are involved in alcohol related accidents has risen approximately 116% between 1998 and 2007. The Automobile Club study then compared this figure to male crash statistics, which indicated an increase over the same period of only 39%. These findings have indicated to researchers that the female drinking pattern has been radically altered over the past ten years.
The analysis also indicates that young women drivers, passengers, and pedestrians' alcohol related deaths and injuries have risen substantially over the past decade. In 1998, statistics reported that approximately 1,037 women aged 21-24 were killed or injured in alcohol related crashes. In 2007, this level rose to approximately 1,515 injuries or fatalities, displaying a 46% increase since 1998. For men of the same age category, alcohol related deaths and injuries increased by only 18%.
The increase in female deaths and injuries resulting from alcohol related crashes also applied to females falling into the 18-20 age group. While statistics indicated a 74% increase from 1998 to 2007 for women aged 18-20, the percent increase for men dying or being injured in alcohol related incidents increased 27%.
These findings were presented this morning at the first annual Orange County Drinking and Driving Forum. Steven A. Bloch, Automobile Club senior traffic safety researcher explained the Club's results, stating, "The analysis shows that young women are rapidly catching up with men in terms of risk-taking behavior and incurring the consequences of risk-taking, such as alcohol-involved motor vehicle crashes. Reasons for this include the increase in the number of women obtaining drivers' licenses, women driving more miles and driving more aggressively like their male counterparts."
Bloch added, "These numbers suggest a significant change in our driving culture overall. Despite the $13,500 to $15,000 in fines, fees, and penalties associated with a DUI conviction and the threat of death or injury, young women in particular are increasingly driving in a more risky fashion."
Regardless of the large discrepancy in percent increase between male and female age groups, more generally, these statistics indicate a large increase in the number of alcohol related accidents and fatalities over the past decade.
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In an attempt to curb high levels of drunk driving, the state of Washington has begun utilizing specially equipped Cessna 206 airplanes in order to catch individuals driving under the influence. While the Washington State Police (WSP) has been in possession of several of these planes equipped with similar technology for some time now, due to funding shortages, the planes could not be utilized full time. However, in response to a large federal grant, two specially equipped Cessna 206 airplanes taken to the skies full time.
In order to provide the most effective DUI enforcement, these airplanes have been outfitted with a forward-looking infrared (FLIR) camera system in order to track motorists from the air. This system works by detecting warm objects, such as a vehicle or an individual, against a cool environmental background. From the system's detection, a video image is compiled which can later be used in court against the accused DUI offender. Because the FLIR camera system uses thermal energy detection to create the video image, these camera systems can be utilized in all types of traffic conditions, including severe fog or during nighttime hours.
In order for these planes to isolate aggressive or impaired drivers, motorists can call "911" and alert the dispatcher that they have encountered an individual they believe to be driving under the influence. After providing the dispatcher with their general location, the dispatcher will provide the motorist's cell phone number to the pilot of the plane (a state trooper with the WSP), who will contact the motorist once the location is reached. The state trooper then requests that the motorist follow the aggressive or impaired driver while relaying information back to the trooper via cell phone.
Once the plane is situated over the offender's vehicle, the FLIR camera system is turned on and video data is recorded. As the plane follows the car, land-based troopers are radioed to the scene where they subsequently pull the individual over. If the motorist is driving while impaired, he or she will be arrested. If the individual is not impaired, the individual will receive tickets for the violations which were captured on tape by the plane's camera system.
WSP law enforcement officials have voiced their support of the planes, emphasizing the plane's element of surprise. "It's a lot of fun. You see a lot from the air. People speeding, passing on the shoulder, aggressive driving, bad lane changes. They have no idea that we're up above them", said Sergeant Jim Nobach, Washington State Police's Chief Pilot.
Director of the Washington Traffic Safety Commission, Lowell Porter, supported law enforcement's increased use of the specially equipped planes, stating, "Impaired driving continues to be the leading cause of death in motor vehicle crashes throughout Washington, and therefore remains our number one traffic safety priority." However, statistics indicate that only about half of motorists that call in suspected impaired drivers are correct in their assumption. In a bulletin which addressed local concerns regarding use of such planes in conjunction with civilian assistance, WSP Chief John R. Batiste stated, "We see an opportunity for us to improve our response to these very credible reports from sober drivers."
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The Idaho State Police Department (ISP) has estimated that Southwest Idaho DUI arrests for 2008 will reach the six hundred mark, if the present arrest rate continues through the end of December. The average number of DUI arrests made by Region 3 officers between 2003 and 2007 was 294. Southwest Idaho's Region 3 is composed of ten counties which are home to more than half of all of Idaho's residents.
In response to these statistics, Idaho State Police Commander Captain Steve Richardson stated, "I have to say that I have mixed feelings about this statistic. On one hand, I'm pleased to see our troopers so highly effective in detecting and arresting drunk drivers, and getting them off the road before they can cause a crash. Yet, on the other hand, I must admit I'm dismayed that we continue to find no shortage of DUI drivers to arrest. We've substantially increased our enforcement efforts...but it is sad commentary to see so many people still out there, driving under the influence and endangering themselves and others on Idaho highways."
In early October, ISP announced the formation of a Region 3 DUI Strike Team, which utilizes law enforcement officers with an exemplary record of DUI enforcement in order to conduct roving DUI patrols at night. According to Region 3 Sergeant John Stauffer, with the added support of advanced potable breath testing devices, the DUI Strike Team has been able to average at least one driving under the influence arrest per officer per shift. On a particularly successful night, twelve individuals suspected of driving under the influence were arrested and removed from Southwestern Idaho's roads.
Despite the DUI Strike Team's success, Captain Richardson asserted, "I'd truly like to think that we'll not reach the 600 DUI mark for our region. If that happens, it won't be because our troopers have slackened their efforts to find and arrest DUI drivers. We'll be working harder than ever over the holidays to keep Idaho roads safe. It will only happen if people take it upon themselves to decide even before they take that first drink, that they will not drink and drive."
In a recent report released by Mothers Against Drunk Driving, the state of Idaho ranked tenth in their efforts to combat drunk driving. Despite this reasonably high ranking on MADD's State Progress Report, comments from MADD indicated that there is still significant room for improvement due to the fact that the Idaho state legislature has deemed sobriety checkpoints unconstitutional.
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Recent reports have named Montana as the most dangerous state for drunk driving. In 2007, the state of Montana reported 106 alcohol related fatalities, which is an average of 11.1 drunk driving deaths for every 100,000 people. This number has shown a slight increase since 2006, where an average 10.9 driving under the influence deaths were reported for every 100,000 people.
Jim Lynch, director of Montana's Department of Transportation provided several reasons for Montana's high level of DUI fatalities, stating, "Eighty percent of travel in Montana is on rural roads. So most crashes involve speeds in excess of 55 miles per hour. A more urban state like Massachusetts has less than 6% of its drivers on rural roads- the majority of its traffic is in urban environments at slow speeds. We also have much longer emergency response times because of the distance; the average response time in Massachusetts is about 20 minutes, while in Montana it's an hour and 20 minutes. So an accident in Montana is far more likely to be life threatening."
South Carolina was determined to be the state with the second highest number of drunk driving fatalities, with an average of 10.5 alcohol related deaths per 100,000 people. Mississippi, Wyoming, and Louisiana rounded out the top five, with 10.35, 9.37, and 8.57 fatalities per 100,000 people, respectively.
Wyoming's status as a "bridge" for travelers could be a possible contributing factor for the high number of traffic fatalities. Additionally, Wyoming is one of ten states that has determined sobriety checkpoints to be unconstitutional, despite a United States Supreme Court ruling in 1990 that stated otherwise.
In order to determine which states had the highest drunk driving death tolls, researchers reviewed the drunk driving fatality data for 2007 compiled in the Fatality Analysis Reporting System and the General Estimates System, which is released by the National Center for Statistics and Analysis, a division of the National Highway Traffic Safety Administration (NHTSA). Researchers then multiplied the data by 100,000 and divided the result by the census population estimates for 2007 to determine their final numbers.
In response to the reported statistics, spokeswoman for the National Highway Transit Safety Administration, Ellen Martin, stated, "Alcohol related vehicle accident numbers have not been tilting downward over the last decade. We're hopeful that we may see a downward trend, but police are dealing with more and more hardcore drinkers as years go by."
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An internal investigation instigated by the South Carolina State Law Enforcement Division (SLED) several months ago to investigate the circumstances surrounding ten DUI plea bargains approved by Lance Corporal David Smith has reached completion and no criminal wrongdoing has been identified.
According to reports, Lance Corporal Smith reduced the ten driving under the influence cases last October, but did not turn over the paperwork associated with the cases until late January of this year. Adding further cause for concern, the documents revealed that seven of the ten drivers who had their cases reduced were represented by South Carolina State Senator Brad Hutto. Additionally, in six of the ten DUI cases, the individuals accused of driving under the influence had blood alcohol concentrations ranging from 0.13 to 0.16. Refusals to submit to chemical testing and instances of individuals driving with suspended licenses were also reported in several of the cases, which under normal circumstances are punishable by enhanced sentences. However, in these cases, the offenders were allowed to plead guilty to reduced reckless driving charges and pay a $440 fine.
Following the initiation of the internal investigation, Lance Corporal Smith revealed to SLED investigators that he felt he was placed at a disadvantage in court by having to argue his DUI cases before a Hutto-appointed magistrate. In South Carolina, state senators make their recommendations for judgeships to the governor, who then seeks confirmation from the entire senate body. Lance Corporal Smith emphasized the disadvantage he faced in court, stating, "Brad appoints the judge, makes a motion and the judge agrees."
In response to Lance Corporal Smith's allegations, Senator Hutto stated that he disagreed with the accusation that he had any influence on the courts. Accordingly, Senator Hutto acknowledged that the magistrates "rule against me just as much as they do anybody else." The Senator also voiced his opinion that had the DUI cases actually been tried, he would have won a majority of the cases, which supports Lance Corporal Smith's decision to offer reduced sentences to the offenders.
Though no criminal wrongdoing was identified for Senator Hutto or Lance Corporal Smith's roles in the plea bargains, Smith was disciplined for violating law enforcement rules and procedures. Lieutenant Colonel M.L. Howard of the South Carolina Highway Patrol addressed Lance Corporal David Smith's actions, stating, "Your actions were in violation of troop procedures requiring you to inform your supervisor in writing before disposing of DUI cases by any other means with the exception of trial by jury or bench trial." Lieutenant Colonel Howard also emphasized to Lance Corporal Smith that any future violations could result in additional disciplinary measures.
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Recently, the Associated Press reported a story which detailed a Texas man's release from jail who was arrested for first offense driving under the influence in Nebraska. The man was released after being allowed to pay ten percent of the $2,000 bond posted, without ever facing a judge. This arrangement was based on the criminal justice department's belief that the man, Robert Hood, was under arrest for his first DUI offense. However, this was not the man's first DUI arrest, or even his second or third. This was Robert Hood's fourth driving under the influence arrest in three states over the last two weeks.
According to authorities, the FBI-run computer system which catalogues all driving under the influence arrests only provides information on individuals who were fingerprinted upon being taken to prison and commonly, information from recent arrests is delayed getting into the system, as was the case with Hood. Sarpy County Judge Todd Hutton, who sits on the bench in suburban Omaha stated, "If judges are made aware of other pending charges, it could justify a higher bond to [ensure] the person appears in court. The judges make their decisions based on the information they are provided. They can't act on information that is not brought to their attention." At the time of his fourth DUI arrest in Nebraska, the system did not display Hood's three previous DUI arrests, one in Wyoming and two in South Dakota.
This issue of incomplete information is not isolated to incidents where the DUI arrests occurred in more than one state. Cases have been reported where officials were unaware of pending driving under the influence cases within their own state borders. According to Warren County Sheriff Martin pace, "In Mississippi we enter everything into the system, misdemeanors and felonies both. Not all states do that; some jurisdictions don't enter misdemeanors. If somebody gets a DUI conviction in New Jersey and then another in Tennessee and then gets one here, we may not ever know about their prior convictions. If they're not entered into the system then we'll never know."
In response to the numerous flaws of the current computer database, the FBI is planning to launch a new pilot program that would alert authorities when a defendant has multiple DUI charges pending, both in state and out of state. The National Data Exchange, or N-DEx for short, is designed to link all local, state, and federal records in one database for easy access. N-DEx takes 360 different data elements found on arrest reports and catalogues the information so that each element can be searched, linked, analyzed, and shared nationwide.
The FBI's goal is to incorporate all of the state's information into N-DEx by 2010. The potential drawback to this plan is the fact that the submission of data to N-DEx is completely voluntary, which could delay the collection of data significantly. However, the FBI is convinced that the N-DEx pilot program will be highly effective at cutting back the number of individuals who are allowed to slip through the cracks of the criminal justice system.
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In Camden, Tennessee, local residents are questioning whether driving under the influence charges were dropped against Thomas Noah Todd because his grandmother, Mary Phyll Waggoner is currently completing a term as an alderman and once served as mayor of the city of Camden.
Todd was arrested after being identified by police for swerving on a road entering the city of Camden. Once Officer Kenneth Beal had pulled Todd over to begin his DUI investigation, Todd threw his truck into reverse, backing into the front end of Officer Beal's response vehicle. Following Todd's refusal to submit to a blood alcohol concentration (BAC) test, Todd was booked on charges of driving under the influence with refusal to submit to a chemical test. Reflecting on the arrest, Officer Beal stated, "He did smell strongly of alcohol. I do believe, according to the law, he was DUI."
However, despite the officer's own admission that he believed Todd to be driving under the influence of alcohol, when Todd showed up in court three days later, there was no pending DUI charge; only a lesser charge of reckless driving. As a result of the reckless driving charge, Todd was instructed to pay a fine of seventy five dollars and his license was restricted for a period of six months.
Officer Beal explained that because Todd refused to submit to a blood alcohol concentration test, he felt that he did not have enough evidence to charge him with DUI, "I just didn't have enough evidence for that charge, but I did for the reckless driving." However, the law makes special recommendations for individuals who refuse to submit to chemical testing, suspending an individual's license automatically for one year, compared to the customary six months for a first offense driving under the influence charge.
Officer Beal stated that the decision to charge Todd with a lesser offense did not occur as a result of pressure from Alderman Waggoner. To the contrary, Officer Beal asserted that he has arrested the alderman's other grandchildren, so he would have no reason to submit to pressure from the alderman in this specific incident.
Waggoner stated that she was not involved in the reduction of charges against her grandson, emphasizing, "I would not try to influence a policeman to change anyone's ticket because it's not right." However, in the city of Camden, an alderman serves a purpose similar to that of a city council member, a position which provides considerable control over members of local agencies, especially the Police Department.
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Public defenders' offices in at least seven states across the country have announced that they will soon be forced to refuse to take on new cases. Additionally, several public defenders' offices have sued to limit the number of cases each lawyer in their office is allowed to handle at one time. The public defenders' offices have justified these extreme measures by stating that overwhelming workloads, in conjunction with state budget cuts and a rising number of cases, undermine the constitutional right to counsel for the poor and increase the likelihood that serious mistakes might be made.
Despite the fact that the United States Supreme Court decided in 1963 that economically disadvantaged defendants are entitled to government subsidized representation, many people are in favor of the public defenders' offices decision to limit the number of cases they handle. David J. Carroll, Director of Research for the National Legal Aid and Defender Association, supported the office's caseload reductions, stating that, "Right now a lot of public defenders are starting to stand up and say, 'No more: we can't ethically handle this many cases."
One of the first examples of the proposed caseload reductions being put into action occurred in September 2008, when a Florida judge ruled that the public defenders' office in Miami-Dade County could refuse to represent individuals charged with lesser felonies so that public defenders would be free to concentrate their increased attention on more serious felony cases. Similarly, in Kentucky, State Public Advocate Ed Monahan has filed a lawsuit to allow public defenders' offices to turn down cases that they feel they cannot ethically handle. Such lawsuits are also currently pending in Tennessee, Minnesota, Maryland, and Arizona.
The overburdening of the public defenders' offices is not solely derived from cuts in the budget. A drastic increase in the number of cases yields a much higher number of individuals who will request assistance from the public defenders' office.
In Missouri, the criminal justice system has not added staff members to the state's public defender offices in eight years, despite the fact that the number of cases taken on by the office has increased by approximately 12,000 cases per year. As is the case in Florida, where over the past three years, the average number of felony cases handled by a public defender has increased from 367 to nearly five hundred. The caseload of misdemeanor cases for public defenders has also increased, from approximately 1,380 cases to a staggering 2,225 cases per year.
While Bennett H. Brummer, Elected Chief Defender of the 11th Judicial Circuit of Florida, argues that the public defenders' office has been crippled by the 12.6 percent budget cut over the last two years and 29 percent increase in casework over the last four years, Florida State Senator Victor D. Crist disagrees, arguing that Brummer and his colleagues are overreacting. According to Senator Crist, the judicial system has faced much smaller cuts compared to other divisions of the budget. Additionally, because no defendant should be denied due process, Senator Crist believes that the public defenders' offices need to work on increasing efficiency and imposing small fees on clients to cover heightened costs, as opposed to outsourcing their additional cases. In response to Senator Crist's accusations, Mr. Brummer stated, "There's a race to the bottom here. As the loads worsen, the more experienced lawyers leave. But the cases continue to come in."
Problems have also arisen in New York City, where city and state financing for criminal defense was cut by nearly three million dollars, while the number of cases in the criminal justice system increased by about fifteen thousand. In response, New York City's Legal Aid Society is planning to present a bill to the City Council which would set a cap on the number of cases each public defender can handle each year. Unfortunately, in order for this proposition to succeed, an increase in funds is necessary to cover the cost of additional lawyers, which is unlikely to happen due to New York's large budget shortfalls.
The state of Michigan is facing issues of its own, due to its practice of requiring counties to protect the indigent without providing state funds to do so. In some counties, individuals who are charged with misdemeanors are not even offered the services of a lawyer. In other counties, judges outsource the cases at a flat rate, which provides a strong incentive to skimp on an individual's defense. Despite the county and state official's acknowledgement of the problems engrained within the system, the counties say that the problems cannot be fixed without the support of state funds.
Ultimately, the budget cuts and increase in caseloads have pushed too many public defenders to the breaking point, forcing them to realize that taking on so many cases is not only stressful, but irresponsible. Norman Lefstein, a professor at the Indiana University School of Law and an expert on criminal justice argues that the most immediate impact of the shortage of public defenders is that innocent defendants may feel pressured to plead guilty or may be wrongly convicted based on incomplete evidence and an inadequate defense. In addition, once these decisions have been made, they can be very difficult to correct because appeals based on inadequate defense are very difficult to win.
However, not all states have been forced to refuse incoming cases. In order to prevent the office's refusal of potential cases, Nevada, Louisiana, and Montana all recently began hiring additional public defenders to lighten caseloads. Unfortunately, the hiring of additional lawyers may not be a viable option for every state facing an increase in cases due to the nation's ubiquitous budget crisis. At any rate, an alternative to the present system needs to be proposed, for while it is undesirable for public defenders to turn clients away, it is unacceptable for mistakes to be made due to a severely overburdened system.
Thanks Katie.
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In Volusia County, Florida, an internal affairs investigation has been launched to examine the circumstances surrounding Officer Chris Selander's release of Sergeant Kenneth Vickery following a DUI traffic stop. It has been revealed that Officer Selander was aware of Sergeant Vickery's intoxicated condition and chose not to charge him with driving under the influence.
According to reports, at about 1:20 a.m. on Sunday, November 2, Officer Chris Selander came across two individuals sleeping on the beach at Oceanview Avenue, one of which he recognized as Seargent Kenneth Vickery. At the time, Officer Selander noted a strong odor of alcohol emitting from Vickery's and his companion's mouth. After waking the two individuals, Officer Selander instructed the two to stay on the beach in order to avoid a potential driving under the influence charge. However, Sergeant Vickery did not heed this advice and was observed by Officer Selander a short while later driving north on South Atlantic in his 1999 Ford truck.
After recognizing Sergeant Vickery's vehicle, he chose to follow him, where he subsequently observed Vickery's truck cross over the white shoulder line three separate times and swerve onto the grassy shoulder four additional times. Officer Selander finally decided to pull Sergeant Vickery over after watching him cross the double yellow line numerous times, calling in for backup from Sergeant Greg Miles. Officer Selander provided no explanation for this atypical request for reinforcement.
An audiotape of the traffic stop which was recently released by law enforcement revealed that Officer Selander was aware that Sergeant Vickery was intoxicated and that he chose to release him without charging him with driving under the influence. On the tape, Officer Selander addressed Sergeant Vickery, stating, "Sergeant Greg Miles is going to come and get you. I'm not going to arrest you. You can relax. You know you've been drinking probably a little too much. I saw the alcohol in the car. I can smell it."
Several minutes later, the tape reveals that Sergeant Vickery became hostile, arguing that he had done nothing wrong and insisting that he had not crossed any lines on the road, hadn't swerved, and had not been speeding. When asked how many drinks he had consumed that night, Sergeant Vickery responded, "Before I got in my truck or after I got in my truck?"
This interaction continued for several more minutes with Officer Selander threatening several times to place Sergeant Vickery under arrest, stating, "Yeah, you can apologize in my jail cell. I'm getting real tired. You can still get a bunch of tickets. So change your attitude real quick because this whole thing is being recorded. I'm going to document everything." However, after everything was said and done, Sergeant Vickery was only cited for an improper lane change, without any mention of driving under the influence charges.
Despite these serious allegations, neither Sergeant Vickery nor Officer Selander have been placed on leave while the internal affairs investigations are being conducted.
This incident is only one of many recent reports of police officers concealing the drunk driving of fellow officers, which leads on to question the fairness and impartiality of the criminal justice system as a whole.
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St. Petersburg, Florida police officer Robbie Arkovich is facing strict disciplinary measures after investigators discovered that he was posting pictures on his personal website that he took while on duty investigating a number of driving under the influence incidents.
Officer Arkovich's actions were discovered after an individual recognized pictures of his son, who was involved in a DUI related accident in May 2008, posted on Arkovich's personal website. The man contacted Police Chief Chuck Harmon and an Internal Affairs investigation of the website was launched. As a result of the investigation, Internal Affairs determined that a number of the photos posted in the "Photo of the Day" section of Arkovich's site depicted various police activities surrounding driving under the influence investigations. One of the more inappropriate photos depicted a man performing a field sobriety test on the side of the road while nude.
Following the completion of the investigation, Officer Arkovich admitted that he had been taking photos of his DUI investigations for about eight years. He argued that he planned to utilize the photos as learning tools for cadets at the police academy where he teaches and for local high school students where he gives presentations cautioning students to the risks associated with driving under the influence.
According to investigators, Officer Arkovich utilized his own personal photography equipment while on duty to capture the images of his and other officer's driving under the influence investigations. As a result of the Internal Affairs investigation, an administrative order was issued in August prohibiting Officer Arkovich from taking any more photos while on duty for non-work related reasons. In response, Officer Arkovich stated that he never intended to violate any department policies or procedures.
In February 2008, Officer Arkovich reached his 1,000th DUI arrest, the most department veterans can remember by a single officer. Arkovich was also honored by Mothers Against Drunk Driving (MADD) in 1999 for his dedication to DUI enforcement.
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A Sarasota County judge has thrown out the breath test results of seven individuals charged with driving under the influence after evidence surfaced that law enforcement officials did not inspect the breath test machine following a repair made in March 2008. The breath testing equipment was allegedly not inspected for nearly six months following the repairs, which expressly disobeys the Florida Department of Law Enforcement's (FDLE) ruling that a breath testing machine that undergoes repairs must be inspected by law enforcement before it can be used to collect DUI evidence against an individual accused of driving under the influence.
This discovery could potentially lead to the invalidation of nearly one hundred breath testing cases in Sarasota County which rely on breath test evidence collected by the Intoxilyzer 8000 breath testing machine, serial #1346. By excluding the results of the breath test, prosecutors would be barred from introducing evidence of the defendant's blood alcohol concentration (BAC) during trial. Blood alcohol evidence often plays a critical role in the conviction of individuals accused of driving under the influence.
In this case, the Intoxilyzer 8000, serial #1346, had a problem with its dry gas regulator, which is needed for the automated control tests that occur before and after the breath test. Without a properly functioning dry gas regulator, the machine will not work and may provide falsified readings. The Florida Department of Law Enforcement (FDLE) replaced the dry gas regulator on March 5, 2008 but failed to have a Sarasota County law enforcement agent conduct an inspection of the machine following the repairs, as is required by law.
Sarasota County prosecutors and law enforcement have argued that the replacement of the dry gas regulator should be considered maintenance, not repair. An official inspection by law enforcement is not required when a breath testing machine undergoes routine maintenance. In response to this assertion, Sarasota County Judge Phyllis Galen who handed down the ruling stated that the prosecution's argument was "unreasonable."
Although Judge Galen's ruling currently only impacts seven DUI cases, defense attorneys have jumped on the opportunity to argue that all of the breath testing results obtained by the Intoxilyzer 8000, serial #1346 following the March 5, 2008 repairs should be deemed invalid. Defense attorney Robert Harrison insisted that, "It's for seven people, but every breath test on that machine, between those dates, is no good."
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The owners of Salty's Bar and Grill in Panama City Beach, Florida, have been sued for their involvement in a deadly hit and run accident which occurred one year ago. According to the lawsuit, the four owners of Salty's Bar and Grill provided alcohol to underage employee Jeremy Matthew Hunt, who was working as a bar back at the establishment on the night of October 12 and into the morning of October 13, 2007. Hunt left the bar drunk, where he subsequently hit and killed Clint Malone on Thomas Drive as he rode his bicycle alongside his wife Jennifer Malone.
Three days after the accident, Hunt turned himself in to the authorities. He is now serving twenty years in prison for DUI manslaughter and leaving the scene of an accident involving a fatality. Jennifer Malone's attorney, David Carter, stated that, "Jeremy Hunt indicated that he was given alcohol on numerous occasions by the owners of Salty's. Salty's had an accepted policy that employees were allowed to drink on the premises free of charge so long as they were not on the clock."
The lawsuit filed by Malone asserts that the owners of Salty's knew that Hunt had been drinking on the job on the night of the accident. Additionally, extensive video evidence showing Hunt drinking with management the night Malone was killed was turned over during the course of the investigation. In response to his client's lawsuit, Carter stated that Salty's management displayed gross negligence by, "[failing] to adequately and reasonably train and supervise Jeremy Hunt in the performance of his duties, including but not limited to Jeremy Hunt's participation in Salty's providing of alcohol and encouraging employees to consume alcohol."
Malone is suing the owners of Salty's for medical and funeral expenses, loss of earnings, and pain and suffering endured by herself and her two children. Malone's lawyer summed up her case, stating, "the actions of the bar and its owners are equivalent to putting the bullet in the gun, reaching over his (Hunt's) shoulder, and pulling the trigger."
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Following an extensive investigation, the Florida Department of Law Enforcement (FDLE) has reported that they have fired DUI inspector Sandra Veiga for allegedly tampering with alcohol breath testing machines. It has been revealed that during the FDLE's routine inspections, Veiga failed to follow testing protocol. When it appeared that the machine was going to register a fail during the required accuracy inspection, Veiga chose to pull the plug on the machine rather than let it finish the test and record the error. Unplugging the machine mid-test prevents the machine from reporting the malfunctions to the manufacturer. Veiga was responsible for the required annual testing all of the Intoxilyzer machines in the Miami-Dade, Broward, and Monroe counties.
The investigation into Veiga's conduct began after two local police officers reported that Veiga had told them to turn the machines off when it looked like they were going to fail inspection. Florida state law mandates that the Intoxilyzer machines be tested for accuracy once a month by the police agency in possession of the machine in addition to the yearly tests provided by FDLE.
In July, the FDLE sent letters to every law enforcement agency in all three counties, instructing the agencies to alert prosecutors and defense attorneys to the alleged tampering. As a result of this widespread corruption, thousands of DUI cases have put been put at risk, including pending cases and cases that have been recently closed. Driving under the influence defense lawyer Richard Hersch stated, "The number of cases involved could be as many as 10,000 here in Miami-Dade County." DUI defense attorneys argue that this scandal casts suspicion on an untold number of driving under the influence cases in Dade, Broward, and Monroe counties.
Defense attorney Mike Catalano added, "If she [Veiga] lied about how she performed her annual inspections, then we don't know if any of them are valid." Individuals who have been arrested for driving under the influence in South Florida, who have submitted to a breath test, or who have been convicted of a DUI in one of the three previously stated counties have been advised to contact their attorney and see if the widespread tampering has affected the finding in their case.
Despite these warnings, the Miami-Dade State Attorney's Office has maintained their confidence in the reliability of the Intoxilyzer breath testing machines used in the county's criminal DUI cases. Officials of the State Attorney's Office have stated for the record that the improper accuracy tests will not endanger any of the area's past, present, or future driving under the influence cases.
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In a study presented at the 2008 Clinical Congress of the American College of Surgeons, statistics revealed a high association between moped driver injuries and positive alcohol levels. Trauma surgeon, Dr. Ashley Christmas of the F.H. Sammy Ross Trauma Center in North Carolina presented evidence that as high as thirty nine percent of moped operators involved in accidents were driving while under the influence of alcohol.
To more closely examine the influence of alcohol on moped crashes, Dr. Christmas and several colleagues conducted a retrospective review of adult moped injuries at the F.H. Sammy Ross Trauma Center between the years of 1995 and 2006. Based on the investigation, Dr. Christmas revealed that, "Upon questioning, we learned that many of these individuals had previously had their drivers' licenses revoked. These patients were very in tune to the fact that a moped was defined as a motorized vehicle with an engine less than 50 cubic centimeters, so they knew they could still drive this vehicle without a license. We suspect that many moped operators are repeat offenders, whose licenses were previously revoked."
Moped laws vary from state to state with regard to the age of the operator and whether or not helmets, registration, inspection, insurance, and, most importantly, a driver's license, are required for operation. For example, in North Carolina, moped operators are not required to have a driver's license, however, across state lines in South Carolina, a license is required. While a license is mandated by South Carolina state law, obtaining that license does not depend on the status of any other driver's license the individual may hold. In other words, a driver may be in possession of a suspended or revoked automobile license due to a DUI conviction, but will still be eligible to receive a moped license.
Dr. Christmas addressed the loopholes in South Carolina law, stating, "It is a kind of flaw in the system. I think the Department of Motor Vehicles needs to take a closer look at the definition of motorized vehicle. If a person loses his or her driver's license, it should roll over into not operating a moped on an open road."
Evidence collected during the study also revealed, surprisingly, that despite the fact that the severity of moped accidents was much lower than the severity of motorcycle or automobile accidents, moped drivers still had a higher rate of death as a result of those accidents. Due to these puzzling findings, Dr. Christmas and his colleagues have expanded their study to investigate the cause of this paradox. He and his colleagues are also currently working with the Department of Motor Vehicles (DMV) in order to determine how many of moped drivers admitted to the F.H. Sammy Ross Trauma Center were driving with a suspended license.
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On Friday, October 10, Hector Whitley was convicted in Sacramento's Superior Court on ten felony counts involving conspiracy, destroying court records, aiding and embedding computer fraud, and making fraudulent computer entries. This conviction stems from an investigation initiated by the Sacramento District Attorney's Office in 2007 after court staff noticed irregularities in the computer entries of several DUI cases.
The investigation revealed that numerous computer entries had been modified to show DUI cases as dismissed, when there had been no court order of dismissal. An audit of all 2007 cases revealed at least seven DUI cases where the defendant in the case had been arrested and charged, but then had failed to appear for their first court date. Normally, following a failure to appear, an arrest warrant would be issued for the individual. However, in these cases, no warrant was issued and electronic records were altered to indicate that the cases had instead been dismissed. Phony minute orders were even drafted for the court files to make the dismissals even more convincing.
Following the extensive investigation, the electronic changes were eventually linked to Whitley and Sacramento Superior Court clerk Fernando Marcos Catlin, who allegedly accepted as much as five thousand dollars from the individuals in order to make the DUI charges disappear.
Whitley has been described as the brains behind the operation to fix the results of the driving under the influence cases. He allegedly advertised his services in local Sacramento bars and then relied on his accomplice, Catlin, to alter the records in the court's computer system. In his closing argument made Thursday morning, Deputy District Attorney Don Steed summed up Whitley's involvement in the scheme saying, "He's the one who found the customers. He got the money. He promoted it by putting his name out there. He's getting the business to do the crime." Whitley himself admitted during trial proceedings that he collected approximately $11,500 from the defendants in exchange for the altering of their court records. Whitley also relied on local bartenders to get the word out around town that he could, "make drunken driving cases disappear."
Following Whitley's conviction, Deputy District Attorney Steed said, "Hopefully, we've caught all the cases. It's important that there be credibility in the system and that we carry forth on this to make the public know that this is a credible process and that justice be served equally to all." Chief Deputy Executive Officer of the Court, Ed Pollard, added that the Sacramento Superior Court has instituted some corrections to the electronic records system in order to prevent similar problems from occurring in the future.
All of the defendants who hired Whitley and Catlin to have their records altered have since pleaded guilty to their old drunk driving allegations and to new charges of aiding and abetting computer fraud. Each of the individuals was sentenced to probation and 90 days of sheriff's work project.
Whitley faces a term of six to eight years in prison as a result of the verdict which took just two hours to return, after nearly two weeks of trial proceedings. Whitley's accomplice, Catlin, pleaded no contest to the charges brought against him and faces a maximum of ten years in prison.
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In Hillsborough County, Florida, a recent Internal Affairs summary report revealed that Deputy Justin Speaks forged the signatures of two to three sergeants in several of his DUI reports. The Internal Affairs report, dated August 15, 2008, indicated that Speaks committed three counts of forgery, three counts of uttering a forged instrument, and one count of conduct unbecoming of a member of the Sheriff's Office.
The report also stated that, "Deputy Speaks was advised that the State Attorney's Office (SAO) is not going to pursue prosecution on some of his DUI cases as a result of the criminal charges presented to the SAO against him. He agreed his actions have had an adverse affect upon the cases and would destroy public respect in the Sheriff's Office."
As stated in the report, in one instance, the Florida District Attorney's Office chose not to prosecute Lee Anne Bodzenski, who was arrested by Speaks for suspicion of property damage, personal injury, and driving under the influence. Chemical tests taken after the accident revealed Bodenski's blood alcohol concentration to be 0.165 and 0.162, however, prosecutors were forced to abandon the case because of the numerous challenges to Speaks' integrity and honesty.
The forgery was discovered by Speaks' superior after the DUI report on Bodzenski was returned to the office because Speaks had failed to sign his own name to the document. Upon inspection, Speaks' supervisor, Sergeant Porter, discovered that Speaks had forged his signature on the document. When confronted by Sergeant Porter about the forgery, Speaks denied any wrong-doing. However, he changed his story an hour later, saying instead that his wife was responsible for the forgery.
After collecting and comparing handwriting samples of both Speaks and his wife, Internal Affairs concluded that Speaks was responsible for the forgeries. During a subsequent interview, Speaks admitted to the forgeries and even exposed that he had forged the signatures and information of other officers in the past.
This is not the first time Hillsborough County has made national headlines following an Internal Affairs investigation. In the summer of 2007, Deputy Daniel Brock was fired from the Hillsborough County Sheriff's Office after reports surfaced that Brock filed arrest reports weeks after DUI incidents occurred, failed to turn on his vehicle audio and video equipment forty percent of the time, reported failures in field sobriety tests when his patrol car video camera documented the opposite, and acted against police arrest procedure on numerous occasions. As soon as the Internal Affairs report was published, Brock was let go.
In light of the highly publicized investigations of Deputies Brock and Speaks, concerns have been raised that individuals may be able to come forward to challenge the evidence and circumstances surrounding their own arrests and convictions in Hillsborough County, regardless of whether Brock and Speaks were involved.
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Last month, the Ohio Supreme Court ruled in State v. Mays that a momentary drift of a few inches over the white line at the edge of the road provides sufficient grounds for a police officer to initiate a traffic stop.
In the case of State v. Mays, an Ohio State Highway Patrol trooper was driving through Newark, Ohio, on March 26, 2006, when he saw the vehicle in front of him drift across the white fog line by approximately one tire width. A few moments later, he observed the same occurrence. The trooper continued to follow the vehicle for approximately one and a half miles, but did not observe any further traffic violations. The trooper then signaled to the driver to pull over the vehicle.
The trooper approached the car and asked the driver, Christopher Mays, for his driver license. Instead of providing his driver license, Mays handed the officer a credit card instead. The trooper also noticed that Mays had blood-shot, glassy eyes, and smelled of alcohol. Mays was then asked to step out of the vehicle and perform a series of field sobriety tests, which he refused to do. The trooper then arrested Mays, who was subsequently charged with operation of a vehicle while under the influence of alcohol in violation of R.C. 4511.19(a)(1)(a) and crossing marked lanes in violation of R.C. 4511.33.
During court proceedings, the Licking County Municipal Court Judge sustained Mays' motion to suppress after hearing the evidence and concluding that the trooper did not have a reasonable suspicion to initiate the traffic stop in the first place. As a result of this opinion, the judge threw the charges out against Mays.
However, following the judge's decision to throw out the case, the state appeals court reversed the municipal court's judgment, insisting that a police officer can stop and interrogate anyone, even if a violation has not been committed. The state supreme court subsequently agreed with the state appeals court's interpretation.
The court ruled that, "[w]hile a defendant may argue that there were reasons for which he or she should not have been convicted of a violation of [the marked-lane statute], an officer is not required to have proof beyond a reasonable doubt that someone has violated the marked lane statute in order to make a traffic stop nor must an officer eliminate all possible innocent explanations for someone going over the edge lines. The officer need only have a reasonable suspicion based upon articulable facts that the driver violated the marked lane statute." [State v. Mays, Slip Opinion No. 2008-Ohio-4539.]
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In response to the DUI crash that killed a mother and daughter late last week, Kansas state lawmakers and DUI activists have demanded a serious change in DUI laws targeted towards repeat DUI offenders. Gary Hammitt was arrested on Thursday, October 2 on suspicion of two counts of first degree murder, one count of attempted murder, and one count of driving under the influence, after allegedly striking the mother and daughter next to Gardiner Elementary School on Wednesday afternoon. Chemical tests have indicated that Hammitt's blood alcohol concentration (BAC) during the time of the crash was approximately 0.5, which is nearly 6.25 times the legal limit.
Hammitt was arraigned early Friday morning, where it was revealed that he has been convicted four previous times between 1979 and 2005 for driving under the influence. This fact has caused an uprising among lawmakers and civilians alike, who cannot believe that after four drunken driving convictions, Hammitt was still in possession of a valid Kansas driver license.
Under Kansas law, fourth offense DUI offenders are punished similarly to second and third time offenders. Second and third time DUI offenders have their license suspended for one year, which is followed by a year of driving with a restricted license. Only after a fifth DUI conviction does an individual lose his or her license permanently.
President and Chief Executive of the DUI Victim Center of Kansas, Mary Ann Khoury, stated, "I am telling you that there are people in this community who are outraged. We have had nothing but phone calls from people who are just angry." Khoury has predicted that, in the near future, the Kansas legislature will hear from a large amount of people who want longer prison sentences and longer driver license suspensions for multiple offense DUI offenders.
State Senator Phil Journey (R-Haysville), agrees with Khoury, saying that he expects next year's Legislature to reconsider a proposal that would double the minimum sentences for DUI offenders. Instead of serving a minimum two day jail term, a first time DUI offender would be required to spend four days behind bars. This proposal was initially rejected last year due to complaints by local Sheriffs that there was not enough jail space to house all of the DUI offenders.
Senator Journey is also anticipating increased discussion of a law which would require a lifetime license suspension for all third time DUI offenders; a proposal which he would not support. Senator Journey emphasized that for chronic DUI offenders, a suspended license means very little, "The problem is, some of them just keep driving. They play 'police officer roulette' every day...I've had a few who really do abide by the rules, but I've had a lot of them who don't."
Bill Morris, who runs Adolescent, Adult, & Family Recovery, Inc. in Wichita has agreed with protestors that Kansas's DUI laws are much too lax. In order to have the most impact, Morris would like to focus new legislation on first-time DUI offenders. He argued, "I think first time you ought to lose your driver's license for two years--period. I don't think there needs to be any slack."
DUI activists and community members are hoping that this tragedy will send a message to the Kansas Legislature to modify the existing DUI laws, in favor of adopting increasingly harsh penalties for first time offenders and multiple DUI offenders alike.
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Early this week, the South Carolina State Law Enforcement Division (SLED) launched an internal investigation into the circumstances surrounding seven DUI plea bargains which took place between Lance Corporal (Cpl.) David Smith and South Carolina State Senator Brad Hutto. The investigation was initiated after a Highway Patrol officer wrote to his superiors stating that he felt that the DUI cases handled last year by Lance Cpl. David Smith were handled improperly. While the investigation of Lance Cpl. Smith is still ongoing, exploration into the potentially improper working relationship between Senator Hutto and Magistrate Willie Robinson, who is assigned to many of the Senator's cases, has also initiated a SLED review.
Since the outset of the investigation, Lance Cpl. Smith has stated that he felt he was placed in a disadvantaged position prosecuting his DUI cases against Senator Hutto, who was acting as defense counsel in Magistrate Willie Robinson's court. In South Carolina, state troopers used to be responsible for the prosecution of DUI offenders in court. Beginning this year, the job was reassigned to prosecutors in the local superior court.
Lance Cpl. Smith also filed a report to SLED stating that in the DUI cases he was involved in with Senator Hutto, "Brad [appointed] the judge, [made] the motion, and the judge [agreed]". This quote sheds light on the South Carolina justice system, where magistrates are essentially appointed to their positions by local senators. The senators make their recommendations for the judgeship to the governor, who in turn seeks confirmation from the entire Senate body.
In some cases, term limits are disregarded by the magistrates and senators. The magistrate's disregard of the mandated term limits is known as "holdover" status. Critics of this practice have stated that a magistrate's "holdover" status makes them incredibly vulnerable to a senator's demands because the magistrate wishes to stay in office as long as possible.
In response to these allegations, Senator Hutto and Magistrate Willie Robinson have stated that Senator Hutto received no preferential treatment in court. However, SLED has uncovered evidence indicating that the DUI cases that were reviewed during the investigation were all tried in Magistrate Robinson's court as bench trials, with Senator Hutto acting as defense counsel, and that all of those cases resulted in "not guilty" verdicts.
After this evidence was revealed, Robinson argued that the records were completed incorrectly, because in fact, no bench trials actually took place for the cases being investigated and any cases that were reduced to lesser charges were done as a result of plea bargains drawn up between Hutto and Smith.
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While the minimum drinking age has been a source of debate for decades now, in recent months, the fight to lower the drinking age from twenty one to eighteen has received some unlikely supporters. More than one hundred university presidents from colleges across the country have voiced their support of the Amethyst Initiative, a nonprofit group dedicated to re-examining youth drinking and the minimum drinking age.
The group was founded back in June 2008 by Middlebury College President John McCardell, who felt that having the drinking limit set at age twenty one was unintentionally encouraging negative consequences for the nation's young adult population. The Amethyst Initiative clearly asserts the signatories' belief that the drinking age limit is not working as well as the public is led to believe and that the current age limit has created a "culture of dangerous, clandestine binge-drinking".
Supporters of the Amethyst Initiative have stated that as a direct result of the restrictive drinking age limit, when under-age individuals come into contact with alcohol, they are more likely to overindulge and participate in unsafe alcohol consumption practices. Under the current law, individuals who consume alcoholic beverages prior to turning twenty one are forced to keep their consumption a secret, which creates an environment where underage drinkers are disinclined to ask for help out of fear of potential punishment.
According to McCardell and his supporters, an individual's choice to engage in underage drinking practices also encourages a variety of associated illegal activities, such as the use of a fake I.D. in order to purchase alcohol. Members of the Amethyst Initiative say that these illegal practices encourage the compromise of an underage individual's ethics and morals, which erode general respect for authority and the law.
Finally, university presidents and students alike argue that if an individual is old enough to vote, get married, and fight for one's country, that individual should also legally be allowed to indulge in an alcoholic beverage. Even students who are under the age of twenty one and do not drink have voiced their approval of the Amethyst Initiative, stating that it is more about fairness in the law than the ability to consume alcohol earlier on in life that has earned their support of reexamining the minimum drinking age.
However, the Amethyst Initiative has been met with strong resistance nationwide from Mothers Against Drunk Driving (MADD), who have argued that lowering the drinking age would lead to an increase in individuals who choose to drive while under the influence of alcohol. MADD also cites a variety of statistics which assert that the 21 Law saves lives, both on and off the road. In support of this research, MADD has paired up with stakeholders from scientific, medical, and public health organizations to form the Support 21 Coalition. The group is committed to highlighting the lifesaving impact of the current drinking age limit.
In addition, members of MADD have voiced their concern that the presidents who have signed the Initiative will be much less diligent at enforcing the current drinking age on their campuses. MADD members have even asserted that university presidents who have signed the Amethyst Initiative did so in order to make their lives easier and as a precaution to protect themselves against the legal liability associated with underage drinking that university presidents inevitably face. MADD President Laura Dean-Mooney recently issued a statement arguing that parents should think twice before sending their teens to colleges that have "waved the white flag on underage and binge-drinking policies".
The Amethyst Initiative has sent out approximately two thousand letters to college presidents across the country requesting support of their cause. Currently, one hundred and thirty university presidents have responded favorably by signing the Amethyst Initiative.
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Pima County Superior Court Judge Deborah Bernini ruled Friday that defense attorneys should be provided access to the source code and software that is used to power the Intoxilyzer 8000 breath testing equipment currently used by local law enforcement in suspected DUI arrests.
This ruling was made after months of debate between Arizona defense attorneys, who claim that they need the source code to determine whether breath tests administered by local police officers are accurate and reliable measures of an individual's blood alcohol content (BAC), and prosecutors who argue that the source code is a trade secret which should not be disclosed.
Defense attorneys have also argued that refusing to provide the source code for the Intoxilyzer 8000 infringes upon one's constitutional right to cross examine and confront one's accuser. In cases that rely on readings obtained from the breathalyzer, the accuracy of the machine's results cannot fully be challenged without knowing exactly how the measurement is taken. Possession of the source code would help to explain potential errors in the breathalyzer readings.
During the explanation of her ruling, Judge Bernini argued that the code could not be considered a trademark secret because the Intoxilyzer 8000 is not patented and neither is the copyright on the accompanying source code. Judge Bernini ordered that the manufacturer of the Intoxilyzer 8000, a company named CMI, immediately turn over the source code to attorney James Nesci, who has been leading the fight to obtain ownership of the code. Defense attorneys representing approximately twenty individuals arrested on felony DUI charges agreed to consolidate their cases into one case to be decided upon by Bernini. Nesci has taken control of the twenty three cases, and intends to ask Judge Bernini to dismiss the charges against all of the individuals if CMI refuses to release the source code.
Law enforcement officers across Arizona switched from the Intoxilyzer 5000 to the Intoxilyzer 8000 last year, based largely in part on the newer machine's smaller size and the ability for it to be powered by a squad car's cigarette lighter. However, unlike the Intoxilyzer 5000, the Intoxilyzer 8000 isn't patented, so defense attorneys cannot obtain the diagrams and source codes needed to figure out how the machine works. Also, CMI will only sell the Intoxilyzer 8000 to law enforcement agencies, so there is no possible way for individuals not affiliated with law enforcement to obtain information on the new machine. This policy differs from most other breathalyzer companies who readily provide their source codes to anyone who requests them and do not limit who they sell their breathalyzer equipment to.
In addition to Arizona, CMI has been instructed by courts in six other states to turn over the source code for the new Intoxilyzer 8000. Currently, CMI has amassed over $1.2 million in a civil contempt order for not disclosing the source code upon request.
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Santa Clara County District Attorney Dolores Carr and Deputy District Attorney David Tomkins are in the process of reviewing evidence which may reveal that two San Jose police officers attempted to conceal the drunk driving of former San Jose police officer, Sandra Woodall.
The investigation stems from a multi-vehicle accident which occurred on March 25, 2008. According to reports, Woodall smashed her Cadillac Escalade into two cars at the intersection of Branham Lane and Pearl Avenue in San Jose.
At the time of the accident, paramedics noted the strong smell of alcohol on her breath, however, the two responding police officers made no such notation. Paramedics have also revealed that when they questioned Woodall at the scene of the accident, Woodall revealed that she was just out of rehab, had consumed alcohol earlier in the evening, and that she was so disoriented that she did not even know what year it was. Paramedics have even asserted that the officers were coaching Woodall how to answer the questions and when medical assistants tried to take Woodall to the hospital, the officers declined on her behalf.
Witnesses at the scene have come forward saying that shortly after the accident took place, they were told by one of the responding officers that a Blood Alcohol Concentration (BAC) test was not going to be conducted on Woodall because too much time had elapsed since the incident.
The District Attorney's investigation of Sandra Woodall and the two San Jose police officers has initiated a large amount of public distrust of local governmental organizations. First and foremost, the public asserts that a conflict of interest has arisen because District Attorney Carr is investigating conspiracy charges related to her own employee, Sandra Woodall. Secondly, Carr has been accused of being too close to the police department to properly evaluate the evidence in this case because her husband and step-son are both active officers on the force. Finally, charges were not filed against Woodall until almost four months after the accident, when a local resident complained to police commanders that Woodall had not yet been charged, even though she had been driving under the influence. The public has taken this delay as yet another sign that this case will not be decided impartially.
While the public may be skeptical of the ability of the District Attorney's office to conduct a thorough and objective investigation, local neighboring law enforcement agencies such as San Jose's Independent Police Auditor have voiced their confidence in the capabilities of the District Attorney's office to return a fair and impartial decision, which will restore the public's faith in the criminal justice system.
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Pima County Superior Court Judge Richard S. Fields ruled late last week that the Arizona Department of Public Safety's (DPS) practice of drawing blood from individuals suspected of driving under the influence of alcohol or drugs is unconstitutional. Fields argued that by drawing a suspect's blood in the back seat of a patrol car or alongside the road, the Department of Public Safety was not taking proper health precautions in order to avoid risk of infection or injury and was also violating an individual's Fourth Amendment right against unreasonable search and seizure.
Judge Fields' ruling came after he decided that blood-alcohol evidence collected by an Arizona Department of Public Safety officer was inadmissible in court because of the method of blood collection utilized. In the case, the individual suspected of driving under the influence had his blood drawn by an officer while seated in the back seat of a dimly lit patrol vehicle. While the officer drawing the blood sample indicated that he was wearing gloves, he did not state whether or not he had washed his hands prior to taking the sample.
Judge Fields supported his ruling by stating that law enforcement officials have alternatives to blood testing when a blood technician (phlebotomist) is not readily available. However, officers generally prefer to utilize a blood sample over alternative testing methods such as a breathalyzer because the blood test is far more accurate and requires less equipment to set up in advance. In the case of blood testing, a blood sample test generally requires a trip to the hospital so that the phlebotomist is able to draw the blood in an accurate and health conscious environment. When phlebotomists are unavailable or it will take too long for an individual to be taken to a hospital in order to accurately test one's blood alcohol content (BAC), officers have resorted to these backseat blood-drawing tactics.
This is why the practice of drawing blood on the side of the road has become increasingly common in recent years. This way, officers can be sure that the evidence they collected accurate, based on both the timeliness of the test and the precision of the blood-alcohol test itself, when compared to other testing methods.
As a result of Judge Fields' ruling, Chief Criminal Deputy County Attorney David Berkman has stated that prosecutors will soon be dismissing the individual's DUI charges in the alleged drunk driving case. This ruling could have potential negative implications for prosecutors, who may be forced to dismiss cases that are still pending and that rely on improperly collected blood evidence.
Tucscon defense attorney Tom Jacobs states that this challenge of Department of Public Safety authority has not been restricted to Judge Fields' ruling. In addition, Pima County Consolidated Court Justice Jose Luis Castillo issued a similar ruling in another case regarding the constitutionality of Department of Public Safety blood testing of individuals suspected of driving under the influence.
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The Santa Clara County District Attorney's Office is known for its "get tough" policy of prosecuting regular citizens for driving under the influence. Despite this fact, the Law Office of Robert Tayac was able to obtain a victory this Monday in the Santa Clara Superior Court on the behalf of their client, "S.M," who was arrested in January 2008 by the Palo Alto Police Department. While S.M.'s breath alcohol test indicated a blood alcohol content of .07 percent (the legal limit in California is .08 percent), the Palo Alto District Attorney's office prosecuted S.M. for violation of Vehicle Code section 23152(a), driving under the influence of alcohol and/or drugs. Nonetheless, Attorney Robert Tayac was able to negotiate a settlement to reduce the charge to reckless driving, pursuant to section 23103.5 of the Vehicle Code. As such, all driving under the influence charges were dropped against S.M.
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Attorney Robert Tayac achieved a victory in the Alameda Superior court on October 1st, 2007, when he obtained a case dismissal for one of his clients. Mr. Tayac's client, "R.C.," was arrested in March 2007 for a DUI violation. During the arrest, R.C. consented to a PAS (Preliminary Alcohol Screening) test, which indicated a BAC (Blood Alcohol Content) of .10%. Additionally, R.C. agreed to take a blood test , from which the government lab determined that R.C. had a BAC level of .09%. Determined to hold the government to the highest evidentiary standards, Mr. Tayac did not accept the results of the government lab at face value and ordered that R.C.'s blood be retested by another lab for independent analysis. Importantly, this retest yielded a substantially lower result of .07%. The superior court dismissed the charges against R.C. due to this discrepancy. R.C.'s case demonstrates how an attorney who is committed to the rigorous and detailed investigation of DUI arrests can uphold the rights of an accused individual against faulty charges.
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