Florida DUI Suspect Punches Deputy, Slips Out of Handcuffs and Pants

In Bayou George, Florida, a woman pulled over for suspected DUI has been arrested on additional charges, after she slipped out of police handcuffs as well as her clothes and allegedly assaulted a deputy following a car crash.

Samantha Wilson, a 22-year-old woman, was put in custody after she crashed her car at 4 p.m. on a Sunday. She was arrested when police suspected her of drunk driving, and that is when the real excitement began.
According to the NWF Daily News, notes from drunk driving police say that Wilson, whose hands were handcuffed in front of her, quickly slipped out of them the first time. Police re-handcuffed her, and put her in the front seat of a police cruiser.

But while highway patrol trooper Ken McNabb was putting her seatbelt on, Wilson, having once again freed herself from the handcuffs, punched him in the head.

McNabb was able to get the door of the cruiser closed, but Wilson escaped from her handcuffs again, and let herself out of the car. It was about then that she dropped her trousers and began to relieve herself next to the police vehicle. Her husband arrived soon after, pleading with her to stop urinating and pull her pants back up.

Wilson was restrained again and put back into a patrol car. On the way to the police station, according to McNabb, Wilson yelled and screamed, asking to see her husband while kicking at the windows behind the officer’s driver’s seat.

She then proceeded to remove her shoes and pants so that she was naked from the waist down. “She stated that she was going to urinate on my seats before launching into a shouting tirade,” said Deputy Randolph Grob.

Then Wilson, already on her way to jail on suspicion of DUI in Florida, began to slam the plexiglass divider with her handcuffs. She had taken them off again and put them on her fist as though they were a pair of brass knuckles.

The officer stopped the car because he thought Wilson would break through the glass, and when he opened the door to the back seat, she punched him in the nose again. He didn’t remove her from the car because he thought he might hurt her, so instead he was able to force the door closed and radio ahead to the police station to have a female officer ready for her arrival.

Once at the jail, officers had to forcibly remove her from the car amidst her continued punching.

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The DUI Double Standard In China

I’ve posted often in the past about the hidden double standard in enforcing drunk driving laws against cops, judges and politicians.  See, for example, The DUI Double Standard, The DUI Double Standard II, The Blue Cover-Up, Guarding the Guardians and Who Will Guard the Guardians?.    

Is Criminalizing Drunk Driving Unfair to Public Servants?

China, Dec. 26 — Chinese lawmakers have proposed making drunk driving a criminal offense in China, no matter the degree of damage caused. But some members of the National People’s Congress Standing Committee argue that criminalizing drunk driving would be unfair to public servants, because if they committed such a crime, they would not only face criminal punishment but also lose their jobs. They argue that the consequence is too severe…

Hmmm…..Sounds a lot like the double-standard applied to our own civil servants, but at least the Chinese are a lot more open about it.

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Blood Sample Analysis: .15%….But Was It Yours?

Let me tell you about one of my law firm’s DUI cases that ended up in a Los Angeles Times
 article entitled “DUI Case Botched by Blood Mixup”.
One of the attorneys in the firm had a young client who had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.
Now what?
We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower than the police analyss, but still a long way from being under .08%. As we requested, they also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared to be in order.
Our client still insisted he was not driving under the influence of alcohol. The only other reasonable possibility was a faulty chain of custody
. In other words, the LAPD lab got the vial  of our client’s blood mixed up and tested someone else’s blood. Kind of like the work they did in the O.J. Simpson case.
So we had the sample blood-typed to see if it was that of another arrestee. Result: type “O”– the same as our client’s. But, then, that’s the most common type of blood.
We decided to try something different, something that, to our knowledge, had not been done before in a DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to an independent laboratory in Oklahoma that specialized in DNA testing.
A month or so later the report came back: the blood tested by LAPD was conclusively not
 that of our client.
The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges.  Predictably, in the L.A. Times
 article LAPD tried to point the finger at someone else:

Police officials said they are investigating how the mix-up occurred and who is responsible,  But, they said, they are fairly confident that the lab did not make a mistake.  One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD’s jail intake facility in Van Nuys. 

Typically, the police claimed infallibility: “We do not make mistakes…It was the nurses”.
So how could this have happened? The truth is that it probably happens far more commonly than we suppose.
When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then shaken and sealed. Procedures require that a chain of custody
 be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else’s vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage and refrigeration. At any stage of this chain of custody, of course, things can go wrong with the vial or the records.
It may be a week or so before the vial is finally analyzed. This is commonly done using gas chromatograph
 instruments, and the vial is one of many analyzed in large “batches”. A batch is a group of vials, perhaps 40 or more, which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial after another. Of course, it is critically important that the sequence of tests by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won’t be just one person whose blood is falsely reported: every other vial will also be one off — and will all be wrong.  And you have 40 people people facing criminal charges based upon false evidence.
“How do I know the blood they tested was mine?” Simple – if you can get a portion of the sample from the crime lab and have an extra $1200 for DNA testing laying around.
Otherwise, I guess you’ll never know….

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Funny Arrest Story – Bad News and Worse News

Seattle DUI

Years ago a prospective client was explaining his night out on the town with buddies. It was a typical story provided by a vast majority of those arrested for DUI. For purposes of this post we will refer to my client as Mr. X.

Mr. X informed me he was out after work hitting up various bars in downtown Seattle. Mr. X and his friends drank until 1:00 am and then proceeded to drive home. Mr. X decided to drive because his friend was “really wasted” and he only had a “couple” of drinks throughout the night. Mr. X mentioned he did the field sobriety tests without error and then was arrested for DUI. His breath test reading was above 0.15 which was bad news since Washington’s legal limit is 0.08.

During the discovery process we received a video tape of the arrest from the Washington State Patrol. Video in most cases ends up becoming a win-win situation for defense attorneys. Clients will watch the video and one of two conclusions are made: 1. Oh God I was really drunk or 2. See I really was sober. The clients that believed they were sober clearly see how smashed they were. Also, the video can point out how aggressive and blind a police officer can be.

For example, I watched one video of a defendant driving perfectly straight within their lane. There was absolutely no weaving within the lane or travel outside of his lane. On the video you can hear the officer stating, “See the weaving. Oh he almost hit the curb!” In court the prosecutor and judge disagreed with the officer’s assessment and the case quickly went away. Mr. X wished his video could have worked the same magic.

The WSP Trooper was incredibly professional, polite and quite nice. He was not the brute type that is common amongst those in blue during an arrest. Mr. X could hear his slurred speech, and watched as he performed poorly on the field sobriety tests. After the tests the officer placed Mr. X into the patrol car and swiveled the camera around so it captured the backseat and my handcuffed client.

The trooper then went to inventory my client’s car and to speak with the passenger. While this is going on my client’s nose begins to itch badly. Since his hands were cuffed behind him he had to get resourceful. He smashed his face against the protective glass that separates the front of the patrol car with the backseat. Then he rubbed his nose downward leaving an obvious nasty yellowy smear of snot across the glass. Just as he finished the cop came back to the squad car.

Luckily the trooper did not notice the snot artwork, but did have some bad news. This is how the conversation went:

Trooper: Well I have some bad news and some worse news.
Client: Okay. What is the bad news?
Trooper: Your friend puked in your car. (Said with a smile)
Client: Oh no! Damn really? Oh that sucks.
Trooper: Yea. (laughing) It is everywhere. Dashboard, floor, seats and door.
Client: Son of a bitch. What is the worse news?
A few second pause
Trooper: He pissed himself real bad.
Client: What?!
Trooper: Yea, and it soaked into your car seat.

While we watched the video I tried my best to keep from laughing and smiling. When that exchange past I paused the video and looked at my client. He said he could not remember that conversation, but told me the seat was ruined and had to be replaced. Surprisingly, he was good natured about the incident and laughed it off.

Although, the video clearly proved he was under the influence the prosecution offered a nice settlement to a reduced charge. They never admitted it, but I think they felt my client suffered enough that night at the hands of his friend.

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Seattle Attorney Anne Bremner Charged with DUI

Celebrity DUI

Kenmore, Washington. Seattle area criminal defense attorney, Anne Bremner, was charged with DUI and her arraignment is scheduled for September 1, 2010. Bremner is widely known for representing police officers that fall on the wrong side of the law and she is somewhat of a celebrity. Bremner can often be seen on CNN, Fox News, and TruTV as a legal commentator.

She probably never expected to be a defendant herself, but on June 4 a King County Sheriff’s deputy arrested Bremner for drunk driving. The police officer observed Bremner driving on a flat tire. During contact the officer allegedly observed signs consistent with impairment. Bremner has countered that she was a victim of a hit-and-run driver, and the accident caused head or brain trauma which can explain her “impairment.” The officer processed her for DUI, and booked her into jail. That is a rough way to end a night especially on your birthday; Bremner turned 52 on June 4.

After a few months to regain her composure and mount a defense she is ready to begin the case. Bremner has a psychiatrist, Dr. Philip Lindsay, affirming she was involved in a high speed collision that resulted in a concussion. Dr. Lindsay suggests the officer rushed to judgment by concluding Bremner was impaired by an intoxicating substance. Clearly, Bremner intends to do battle with the prosecutor Sarah Roberts. This new bring it on attitude is much different than the cloak and dagger approach originally sought after when Bremner tried blocking disclosure of the arrest details.

I do not know Bremner but wish her luck. Winning a DUI case is very difficult for a defendant, but having the power of the media, celebrity status and lots of disposable income certainly increases the chances of a favorable outcome.

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New York City Police Officer Roniel Dilone Arrested

DUI News

One of New York’s finest finds himself on the wrong side of the law. Roniel Dilone, 26, is a four year veteran of the police force and his career is in sereious jeopardy.

Dilone struck a parked car early on January 21 while off-duty. He managed to escape the collision without any injuries, but his passenger was not so lucky. Dilone’s passenger fractured his leg and shoulder.

Dilone was arrested for drunk driving, vehicular assault and for refusing to submit to a breath test. The police department suspended Dilone without pay.

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Deadliest Catch Star Jake Harris Arrested for DUI

Celebrity DUI

Seattle, Washington. Cornelia Marie deckhand, Jake Harris, 24, was arrested for DUI just nine days after the passing of his father Captain Phil Harris. These recent events has sent shockwaves through Discovery’s hit television series Deadliest Catch.

Last Thursday, Washington State troopers observed Harris driving a BMW 3 Series erratically. A vehicle matching the same description was called in earlier as a vehicle involved in a hit and run accident. Police are still investigating if Harris and his car are tied to the accident. During the traffic stop the trooper noted an odor of alcohol and Harris was requested to complete the field sobriety tests. The trooper alleged that Harris failed these tests and made an arrest for DUI.

During the DUI investigation Harris refused to provide a breath test sample and it was determined Harris was driving with a suspended drivers license. Harris spent the night in King County Jail and appeared in court the next day.

This is not the first time Harris has appeared in court on a criminal traffic matter. In the summer of 2006, I saw Harris appear in the Evergreen District Court in Snohomish County for a suspended drivers license charge. Young Jake needs to mature and realize that driving is a privilege and not a right in the State of Washington. The Department of Licensing requires all drivers follow very simple rules and in return we may utilize our driving privilege.

It is real easy Jake; renew your license, carry auto insurance, obey the traffic code and do not break the law while using a vehicle. Good luck with your DUI case.

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Vote for Ed McKenna for Seattle Municipal Court Judge

Seattle DUI

Ed McKenna is the best candidate for Seattle Municipal Court judge. He has decades of trial experience working as a City of Seattle Assistant City Attorney. He has managed voluminous caseloads and interacted as a community liason. Ed will be fair and reasonable. As a former prosecutor that worked side by side with Ed and as a former defense attorney pitted against Ed I endorse his venture to become a Seattle Municipal Court judge.

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New Jersey Cop Martin Abreu Going to Prison

DUI News

Martin Abreu, 26, was a Jersey City police officer. Now he is a convict and prison resident. One year ago Abreu was traveling on West Street when he drove his vehicle into pedestrians Marilyn Feng, 26, and Dennis Loffredo, 26. Feng recently graduated from New York University Law School and was her parent’s only child. She died from her injuries. Her boyfriend, Loffredo, was injured but survived.

Abreu plead guilty to aggravated vehicular manslaughter because he was driving double the speed limit and he had a blood alcohol level of .124. The legal limit is 0.08. Abreu understood the horror he brought upon these two innocent individuals by stating, “There’s not a day that goes by that I wish I could trade my life for the victim’s. Everyday I live this. I’m going to live it for the rest of my life.”

However, his ignorant mother does not understand the dangers of drunk driving. She was quoted saying, “So my son went out and had a couple of drinks. He deserves to have a good time now and then.” Mrs. Abreu never leave your home and never open your mouth again. You lack the basic intelligence and decency to be part of a civilized society. Getting blitzed out of your mind, driving like a maniac and careening into pedestrians is not a “good time.” Alcohol impairs judgment and in your son’s case alcohol devastated his judgment.

No one has the right to a “good time” at the expense of human life.

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What Happens at a DUI Arraignment Hearing?

Washington DUI

The arraignment hearing generally is the first time a defendant appears in front of a criminal court judge. In most jurisdictions a prosecutor will be present representing the rights and interests of the government. In Washington State the defendant’s presence is REQUIRED for a DUI arraignment hearing. Most criminal courts in Washington State will have an on-call public defender present to assist defendants that appear without an attorney. Why would cities and counties extend such an expensive courtesy at the arraignment? Well it can be one of the most important hearings throughout the court process.

The court will cover three very important issues on the record: [1] notice; [2] conditions of release; and set a [3] future court date.

Notice – The judge will read the formal criminal complaint filed by the prosecution. The complaint will inform the defendant of the criminal charge against them and the alleged date of the criminal conduct. When the judge has finished reading the complaint they will typically ask the defendant, “Do you understand the complaint?” and “How do you plead?” The only ACCEPTABLE responses are, “Yes, I understand and I plead not guilty.”

This is NOT an opportunity for the defendant to make statements about the arrest. It is NOT an opportunity for the defendant to provide a defense or an excuse for their actions. Anything a defendant says at the arraignment is being recorded and can be used against them at a later hearing. Defendants that have an attorney present usually say nothing and let their attorney respond. Defendants that do not have an attorney tend to be the ones that speak up to their own detriment. I have heard some people claim, “I might have had too many drinks but I was not drunk!” Guess what? DUI is not a drunk driving crime. DUI is driving under the influence, so consuming “too many drinks” can be a damning statement.

Conditions of Release – After the judge has accepted the defendant’s plea of not guilty, the judge must determine whether or not to impose bail. If a defendant cannot post bail, then they will sit in jail throughout the duration of their criminal case. A DUI case can take up to 30 to 180 days to conclude. Judges can also impose lifestyle restrictions while the case is pending. For example, a judge might require a defendant to attend AA meetings, install an Ignition Interlock Device in their car and might require no consumption of alcohol.

The judge will determine bail by evaluating if you are a danger to the community and if you are a flight risk. Assessing a defendant’s danger level is determined by reviewing the alleged facts of the current case and the defendant’s past criminal activity. Individuals with criminal history can expect some level of bail to be imposed. The judge will also review the facts of the case, so if the defendant caused injury, property damage and/or had a high breath test reading bail might be imposed. Bail can range from a few hundred dollars to tens of thousands. It is imperative you have an attorney present at the DUI arraignment if you have past criminal convictions or arrests.

Even if it is your first offense I strongly recommend you have an experienced DUI attorney present.

Future Court Date Notice – The last thing that should occur at the DUI arraignment is the scheduling of the next court date. A defendant must not leave the arraignment until they know when the court expects to see them again. Failure to attend a scheduled court hearing will result in an issued bench warrant for your arrest. So make sure you see the court clerk and do not leave the courthouse until you have a written document stating the date, time and location of your next hearing. The next hearing will be the DUI Pretrial hearing.

That is an explanation of a Washington State DUI arraignment. Make sure you have an experienced DUI attorney present to protect your interests and rights. Contact an experience Seattle DUI attorney for a free consultation.

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Cincinnati Bengals’ Rey Maualuga Avoids NFL Suspension

Athlete DUI

Cincinnati Bengals’ linebacker Rey Maualuga was convicted of drunk driving earlier this year. His conviction stemmed from a raucous January night in which he crashed into two parked cars while under the influence of alcohol. For his actions he recieved a 7 day suspended jail sentence, a 90 day drivers license suspension and some probation conditions.

It should be noted that NFL players also can receive a penalty from the NFL itself through the commissioner’s office. Maualuga dodged a bullet and so did the Bengals organization. Rodger Goodell, the NFL Commissioner, did not order a game suspension. Instead Maualuga will give up two gameday paychecks.

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Montana Attorney General Wants More DUI Monitoring

Montana has a history of a DUI culture that is not as critical of drunk driving offenses as other parts of the country. Recently, the state’s efforts to curb drunk driving have led to more stringent policy.

Now, the state’s Attorney General, Steve Bullock, has proposed the expansion of a pilot program that calls for repeat drunk driving offenders to submit to regular breath tests during their sentence. The program is known as the 24/7 Sobriety Project.

The 24/7 Sobriety Project essentially requires that repeat DUI offenders stay sober all day and all night long, for the duration of their sentence. Whoever fails a breath test would be jailed and have their bond revoked. The idea originated in South Dakota.

Under the program, anyone who is arrested for DUI more than once must take a breath test that measures blood alcohol content twice a day, according to the Great Falls Tribune.

Expanded DUI prevention efforts would also include harsher penalties for those convicted of driving with a blood alcohol content that is higher than .15. Such measures are already in place in most states in the U.S. Such a charge, as proposed, would be an aggravated DUI charge.

In addition to the strengthened DUI laws above, Attorney General Bullock would like to make penalties for refusing a breath test more harsh than they currently are.

The proposals will need approval from the state legislature, which is controlled by the Republican party at the moment. Republican Representative Steve Lavin already plans to sponsor the bill.

Lavin is a sergeant in the state’s highway patrol. He argued that the bill wouldn’t cost anything because those who are required to take the tests would pay for the process themselves. “I just don’t see any opposition to it,” he told the Tribune. “I’ve talked to quite a few of my comrades, and they seem to like it.”

Attorney General Bullock hopes for the necessary political support. “I’m hopeful that all three of them end up with broad bi-partisan support,” he said of the three parts of his proposal for expanded DUI penalties and requirements. “This problem is not a Democrat or a Republican issue. I think these three (proposals) are great parts of what can be done.”

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Robert Rizzo Pleads Guilty to DUI

Celebrity DUI

Huntington Beach, California. Robert Rizzo used to be the City Manager of Bell, California, but he left his post after some trouble. The monkey on his back was a DUI arrest and his “generous” salary. Bell is a small city surrounded by Los Angeles and as of the 2000 census had a population of 36,664. Apparently, the small community was not happy that Rizzo was making $800,000.00 a year. That seems to be quite excessive when you compare other politician salaries. For example, the current Governor of Washington State, Christine Gregoire, earns $166,891.00 annually. California Governor Arnold Schwarzenegger makes only $212,179.00 a year.

Not only was Rizzo grossly overpaid for his job, but he also left a black eye on the office when he was busted for DUI. Rizzo was reported for crashing his car into a mailbox. Officers tracked Rizzo to his home and conducted a thorough investigation. Rizzo was asked to participate in the field sobriety tests, but officers stopped the tests because Rizzo could not keep his balance. Then police collected some damning evidence; Rizzo produced a 0.28 breath test sample. California’s legal limit is 0.08.

Even though he blew well over the limit Rizzo was able to avoid jail from his DUI conviction. He will pay a fine, complete 10 days of community service and will need to complete a 9 month substance abuse program.

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Singer Faith Evans Arrested for DUI

Celebrity DUI

Marina Del Rey, California. Grammy winning singer Faith Evans was caught breaking the law again. Recently, Evans was stopped at a DUI checkpoint and was determined to be driving under the influence by the checkpoint police officers. Her car was impounded and she was released on bail.

In 2004, the widow of Notorious BIG, was busted for possession of marijuana and cocaine during a traffic stop. She completed a 13 week treatment program from that incident.

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The Blue Cover-Up

I’ve often posted in the past about a double standard when it comes to enforcing drunk driving laws against police officers.  See, for example, Who Will Guard the Guardians?, The DUI Double Standard, The DUI Double Standard II, Guarding the Guardians.  As news over the weekend reflects, the cover-ups continue….

Drunk Driving Double Standard

Hartford, CT.  Dec. 19 – It opens with a pleasant holiday jingle, and what looks to be some festive Christmas lights.

And then comes a startling screech of metal before the camera pulls back to show police lights and sirens and state police spokesperson Lt. Paul Vance delivering this stern message:

"Nothing shatters the holidays faster than a car crash. The state and local police are cracking down on speeding, unbuckled drivers and drunk driving this season."

"We will stop you," Vance warns over an image of a tombstone, "before you put an end to your holiday or someone else’s."

Unless, of course, you’re a cop in Windsor Locks or Bristol these days. And then, well, the tough guy bit makes way for a kinder, gentler approach.

If you’re a Bristol officer, for example, you apparently get a written warning for driving too fast after slamming your cruiser into a utility pole and knocking out power to a whole neighborhood.

In case you missed that story, here are the highlights: On June 26, former Bristol Police Officer Robert Mosback reported for duty after drinking a beer and two rum and Cokes at a party earlier that evening.

Shortly after his shift began, Mosback totaled his cruiser and caused $100,000 worth of damage. But there wasn’t a peep about possible misconduct from his department until a worker’s comp employee uncovered hospital reports that showed Mosback was intoxicated and denied the city’s claims.

Mosback quit three days after the city got the medical report. And earlier this month, state police who were called in to conduct an independent investigation, charged Mosback with drunken driving.

In an arrest affidavit, Mosback insists he wasn’t drunk: He napped before his shift, he said. And this doozy: His hospital tests must have been switched with another patient’s.

Then there’s the now well-known case of Windsor Locks Officer Michael Koistinen, who struck and killed 15-year-old Henry Dang on Oct. 29 after an apparent night of drinking.

As far-fetched as Mosback’s "switched sobriety test" defense, Koistinen’s claim that he wasn’t drunk when he slammed his car into Dang as the teen bicycled home, is even more suspect. His father, a Windsor Locks sergeant, was briefly in charge of the crash scene and, despite officers on the scene noting a case of unopened beer in his car, Koistinen wasn’t given a sobriety test.

Koistinen, who eventually was fired after state police took over the investigation, now faces a number of criminal charges, including manslaughter. His father, Sgt. Robert Koistinen, remains on paid administrative leave.

"The police are cracking down on drunk driving," warns the spot now airing for the holidays.

Good, except does that apply to everyone – or only to those who aren’t cops?

So who guards the guardians?

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MADD’s Futile “War on Drunk Driving”

MADD continues to claim victory in it’s aging "War on Drunk Driving", citing its own self-serving statistics.  See for example, Lies, Damned
Lies and Madd Statistics, MADD "Statistics Again Debunked and A Closer Look at DUI Fatality Statistics.  But the reality is that unconstitutional laws, unfair procedures, Draconian penalties and rampant denial of due process have done little if anything to reduce the incidence of drunk driving.

40 Million in U.S. Driving Drunk or Drugged

Bloomberg Business News, Dec. 9 – Despite massive efforts to curb drunk driving, some 30 million Americans are driving drunk and another 10 million are driving drugged each year, federal officials report.

In fact, in some states the number of drunk and drugged drivers tops 20 percent, according to a report released Thursday by the Substance Abuse and Mental Health Services Administration (SAMHSA).

"This is a pretty high percentage of people that are operating a motor vehicle under the influence of something," said Peter Delany, director of SAMHSA’s Center for Behavioral Health Statistics and Quality…

On the plus side, there has been a small drop in the rate of drunk and drugged driving in the past few years.

Data from 2002 to 2005 shows the annual rate of drunk driving has dropped from 14.6 percent to 13.2 percent, compared with data from 2006 to 2009. In the same time periods, the annual rate of drugged driving dropped from 4.8 percent to 4.3 percent, according to the report.

In all, 12 states had a reduction in drunk driving, and seven have seen lower levels of drugged driving…

Anna Duerr, a spokeswoman for the advocacy group Mothers Against Drunk Driving, said her organization was pleased to see a decline in the numbers of drunk and drugged drivers. 

MADD is declaring victory in its "War on Drunk Driving" after a slightly more than one-percent drop?  As I wrote over four years ago, perhaps it’s time to take another approach to the drunk driving problem.  See Time For a Change.

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Entrapment in DUI Cases

Suppose a police officer asks or orders an individual to drive a vehicle — and then arrests him for DUI when he complies?

This situation comes up more often than you might think. Take, for example, the following case that eventually made its way to the New Jersey Supreme Court….

The defendant asked his brothers at a wedding reception to drive him home because he was too intoxicated to drive. In the parking lot, however, the brothers got into a fight, attracting the attention of local police. One of the officers struck a brother with his nightstick. The defendant asked the officer to quit hitting his brother. The officer replied by ordering him to leave the parking lot. When the defendant did not immediately comply, the officer repeated the order and then forcefully escorted him to his truck. The defendant obediently got into the vehicle, started the engine — and backed into a police car.

He was arrested for drunk driving.

At trial, the judge ruled that the defendant had failed to prove entrapment or duress as a defense, and he was convicted. On appeal, however, the conviction was reversed on grounds of quasi-entrapment — that is, the defendant should have been acquitted if he could show that but for the officer’s order to leave in the vehicle he would not have driven. The prosecution appealed this reversal to the state’s supreme court.

Incredibly, the supreme court reversed the lower court and reinstated the conviction. Its reasoning? “Obviously,” the court said, “if the law were to permit [drunk drivers] to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear”. The court continued its twisted logic:

No one ordered the defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through the use or threats of violence. The police officers merely ordered defendant to get in his truck and leave the scene of the fight…(Emphasis added.)  State v. Fogarty, 607 A.2d 624 (N.J. 1992). 

This “no win” scenario is fairly typical of what I repeatedly refer to as the “The DUI Exception to the Constitution”.

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New Defense Unveiled

Not recommended here in the Colonies, but….

Huddersfield, England.  A self-styled British witch doctor has been fined pound stg. 250 [$583] after refusing to give a blood test when suspected to be driving under the influence of alcohol.

Nyararia Mukandiwa, 33, was stopped after driving erratically in the West Yorkshire town of  Huddersfield last year, but refused to give officers a blood sample on the grounds that as a witch doctor it was likely to send him into a zombie-like state…

Sounded reasonable to me.

(Thanks to Jay Norton of Kansas City)

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Celebrity Singers Facing DUI Trouble

Several celebrity songbirds appeared in the headlines recently for issues related to DUI arrests and DUI charges.

One is a Grammy winning songwriter, producer and actress best known for her soul-pop music, and the other is a one-time teen heartthrob slated to appear in a film about Liberace.

Singer and Grammy-winner Faith Evans pleaded no contest to DUI charges in a Los Angeles courtroom recently, following a DUI arrest back in August. The Grammy Award-winner was stopped at a DUI checkpoint in Marina del Rey on August 21 at around 10:40 p.m.

Evans was subsequently arrested for suspicion of misdemeanor drunk driving. As a part of the no contest plea, Evans will serve three years of probation, pay $300 in fines, agree not to drive with any alcohol in her system and undergo a 3-month alcohol treatment program, according to the Baltimore Sun.

She pleaded no contest to the misdemeanor count of reckless driving.

Evans, well-known after she arrived on the pop music scene in the mid-90s, tweeted to her fans following the DUI arrest, telling them that “After completing a full day of wardrobe prep I was stopped at a random checkpoint. I’m fine and well, and thank you for your prayers, kind words and concerns.” She signed the tweet “- Fizzy.”

Evans and her husband were arrested for drug possession charges in 2004, for which she entered a drug abuse treatment program.

Teen idol David Cassidy also faced DUI trouble recently, when he was arrested for drunk driving in Florida, according to the LA Times.

Cassidy has a court date in mid January for charges that he failed a field sobriety test at around 6 in the evening. Police reportedly witnessed Cassidy weaving on the road and making an erratic lane change.

A Breathalyzer test came back having registered a .141 and a .139 blood alcohol content for the singer and actor.

Cassidy pleaded not-guilty to the charge. He admitted that he was tired, and that he had a glass of wine with lunch and took a hydrocodine pill for back pain.

According to police, there was a bottle of bourbon in the back seat that was half empty.

Cassidy faces a misdemeanor charge of DUI, failure to maintain a single lane and driving with an open container.

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The Field Sobriety “Eye Test”: Science…or Fraud?

The critical part of any pre-arrest drunk driving investigation is the administration of the "field sobriety tests" (FSTs).  These usually consist of a battery of excercises involving balance, coordination and mental agility — and are difficult to perform for even a sober person under ideal conditions (see "Field Sobriety Tests: Designed for Failure?"). 

Although there are many different tests (walk-and-turn, finger-to-nose, alphabet, etc.), an increasing number of law enforcement agencies are requiring their officers to use only the federally-recommended battery of three "standardized" FSTs.  The most recently developed of these three is horizontal gaze nystagmus (HGN), commonly known as the "eye test".  It is particularly effective in trial not because of its accuracy, but rather because it appears to jurors as scientific in nature.

As I have indicated in previous posts, however, HGN as a test for intoxication is fundamentally flawed and rarely understood or properly administered by police officers.  (See "Nystagmus: The Eye Test", "Nystagmus: The Eye Test (Part 2)", and "Nystagmus: The Eye Test (Part 3)".)

A recent scientific study has now investigated the scientific validity of the nystagmus test:

The Horizontal Gaze Nystagmus (HGN) test was conceived, developed and promulgated as a simple procedure for the determination of the blood alcohol concentration of drivers suspected of driving while intoxicated (DWI). Bypassing the usual scientific review process and touted through the good offices of the federal agency responsible for traffic safety, it was rushed into use as a law enforcement procedure, and was soon adopted and protected from scientific criticism by courts throughout the United States. In fact, research findings, training manuals and other relevant documents were often held as secrets by the state. Still, the protective certification of its practitioners and the immunity afforded by judicial notice failed to silence all the critics of this deeply flawed procedure….

In 1998 the integrity of the statistical evaluation of the original research upon which the validity of the tests rested was unfavorably reviewed [5]. In 2001 new research indicated that the Horizontal Gaze Nystagmus (HGN), the cornerstone of the test battery was fundamentally flawed and that the HGN test was improperly conducted by more than 95% of the police officers who used it to examine drivers suspected of driving whileintoxicated (DWI) [6]. This summary critique demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….

Deliberate fraud.  Pretty strong language for a scientific journal.  After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the researchers concluded that the test was essentially without scientific validity.

The state’s argument for the field sobriety tests does not rest on proof of merit, but upon qui tacet consentit reasoning that those tests have been so widely accepted they must have been subjected to some kind of review prior to adoption in the many jurisdictions where they are used, that somewhere along the way someone would have spotted the flaws and shortcomings. Considering that the student manual was originally considered to be a confidential state document and was only obtained through an Open Records Act request, silence from the scientific community cannot be considered an endorsement of the program.

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NFL Wide Receiver Mike Williams Arrested on Suspicion of DUI in Florida

Mike Williams, a rookie wide receiver for the Tampa Bay Buccaneers, was arrested on suspicion of DUI in Florida, early in the morning before he was to show up at practice the next day.

The arrest garnered headlines because Williams has become one of the best players on the Tampa Bay team after being drafted only last year. He has started every game this NFL season.

According to police, the vehicle that Williams was driving, a Cadillac Escalade, was swerving in and out of traffic and exceeding the speed limit when they pulled it over at around 2:30 A.M. The sheriff’s report said that Williams had a glassy look in his eyes, and police smelled alcohol in the car.

According to the St. Petersburg Times, he failed a field sobriety test.

Williams took a Breathalyzer test, the results of which showed that he had a .065 blood-alcohol content. This number is below the Florida legal driving limit of .08 percent. Williams was still arrested, however, and taken in, then release on $500 bond.

According to Florida police, they can make a DUI arrest even if the breath test shows a blood-alcohol content below the legal limit if there is evidence that a driver was impaired. Such evidence can include the way the person was driving.

According to officials, Williams also submitted to a urine test. The results of that test are expected within a month to six weeks.

In a peculiar turn, the Buccaneers team also had Williams submit a urine sample to them, to allow them to test for several substances, some of which are banned in the NFL, according to the St. Petersburg Times. They did this, apparently, in order to more quickly obtain results of the tests. Buccaneers coach Raheem Morris was happy with the results of this private test, and told the press that he was satisfied that Williams was “clean.”

He also added that the team will be fining Williams “a lot of money” following the late-night incident. The coaching staff had already expressed their disappointment to Williams himself.

“He was very remorseful, which is a good sign,” said offensive coordinator Greg Olson. “He wasn’t full of excuses, and that’s a good sign. I think it’s obviously unfortunate that it happened. We’re certainly disappointed that he would be out that late knowing that we had a big game and practice.”

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