Tuesday, August 12, 2014

The Politics of Drunk Driving; Some Thoughts and Concerns

There is no area of the law in the modern era that is more driven by political pressures and agendas than the area of drunk driving. [I had one judge who was apoplectic about mentioning the term "drunk driving," because the statutory offense is "driving under the influence of alcohol," not "drunk driving"! Give me a break: the Vehicle Code lists it as drunk driving, the Mothers Against ... list it at drunk driving, the appeals and supreme courts refer to the topic as drunk driving, the billboards and other government propaganda label it "drunk driving," etc.  Indeed, so unhinged was he that we had to label, over my strident objection, MADD as "Mothers Against Drinking Drivers."  The hysteria in his mind about calling it "drunk driving" is part of the politics of the enterprise.]
When I say "modern era," I am calling to mind the obvious comparison from days of old to the Salem Witch Trials, wherein 17 women, two men, and a dog were executed for witchcraft on that same sort of hysteria-driven ignorance and suspicions and fears and self-serving pressures by evil people that visit the subject of drunk driving now.
The most disappointing and ominous aspect of this area of endeavor is that jurors, citizens from the community who are supposed to protect us all from overweening government, fall prey to the suasions of government, and their laughably programmed and scientifically incompetent "criminalists" who will testify to whatever their governmental masters need while dressing their perfidies up in seductive scientific jargon. I got one who testified that "everyone is impaired at .08%" to confess that there was a time she would have testified that "everyone is impaired at .10%," because that was the law then, and at ".15%," because that was the law then.  She agreed that there has not been an evolution in the human organism over that short a period that changed what is its "impairment," but only a change in the law, and she works for the law.  Wow - unusual honesty by a government criminalist, and it was probably accidental. 
In no other area of law would we allow the self-serving governmental hackism that visits a drunk driving trial to infect the evidentiary stage.  But jurors become seduced by the testimonial self-righteousness of the shiny badged cop and by the pseudo-science of the earnest hack, and they cannot perceive that they are being led down a primrose path whose careless thorniness will eventually come back to haunt them, and us all.
No other crime is the subject of such government propaganda as is drunk driving.  No other crime has as powerful and pushy lobbyists as we see with the neo-prohibitionist MADD and related organizations as drunk driving.  No other crime has so rigidly tied the hands of sentencing judges as does drunk driving.  No other crime has as harsh an escalating recidivism scale as drunk driving, where misdemeanors can readily morph to felonies on the 4th go-around. No other crime causes those alleged to have committed it to give up and plead guilty to the alarming extent that we see with drunk driving.  No other crime has the extensive governmental propaganda of bill boards and street signs decrying its commission as we see with drunk driving.  No other crime has generated the dramatic exceptions to constitutional and statutory protective rights that we see with drunk driving.
Jurors have to start to resist this reactionary outrage by understanding that it is all smoke and mirrors.  The stats are manufactured; the science is akin to voodoo, and the harm to the victims of prosecution is incalculable.  Yes, yes, there are people injured by drunk drivers - just as there are, in far greater scale, people injured by out of control, brutish, sometimes homicidal cops, but the excesses of neither group justifies punishing all in either group. We make prejudicial generalizations about those accused of drunk driving, and that is dangerous, unjust, and unfair. And it has to stop.

Friday, June 6, 2014

Indio Traffic Court Scam, Part 2

I have written and spoken about this scam for a long time and on many occasions, and the public needs to know the latest chapter.

Two things are fundamental in our system.  One is that all people have a constitutional right to a trial if they are accused of committing a crime [and traffic infractions are crimes].  The other is that “bail” may not be imposed on people accused of crimes, conformably with the 8th Amendment, unless they are found to be flight risks.  The latter is rather regularly violated in this jurisdiction for all levels of crime, because it is understood that people who are held in custody for extended periods of time are thereby softened up into pleading guilty to something, thus releasing pressure on the bloated criminal trial calendar.  It takes literally months to obtain habeas corpus relief for illegal pretrial detention, by which time defendants have generally taken some sort of plea bargain.

In the traffic trial setting, there are troublesome tweakings of those two fundamental doctrines which have resulted in an overt scam on the public of a sort and depth that if it were practiced by an individual, he would be in state prison for extortion.
In traffic, the unwitting public are told that if they plead not guilty to traffic charges at arraignment, they will not receive their trial [a constitutional right] unless they post “bail’ [which constitutionally requires they be found to be flight risks before it can even be imposed].  That “bail” is suspiciously about the same amount, or slightly more, than the fine would be if they were to plead guilty.  They are told that they will not receive a trial unless and until they post that “bail.”  If they politely refuse, they are dealt with quite rudely and menacingly by the Court, which has even been known to threaten an additional sum, over and above that “bail” amount, if they have not paid that illicit tribute by the time of the future-set trial.

Here are the facts from a declaration executed by one motorist who was exposed to that horrid, virtually terroristic, attitude by the local traffic court:

1.      I appeared at the appointed time for arraignment on this traffic infraction.  No one said or suggested I was a flight risk.

2.      As part of the general advisals to the whole room full of people apparently there on traffic citations, the judge said that there are only three ways to respond to his reading of the charges to each defendant: Guilty, Traffic School, or Not Guilty.  He got seemingly great enjoyment out of mocking people who responded otherwise or who wanted to explain something about the charges.

3.      When my name was called, I came forward and pled “not guilty,” which was one of the alternatives that he had said was available.  Only after I pled “not guilty” and asked for a trial did the Court announce that I had to post $500.00 “bail” to obtain a trial.  When it was clear that I was not, at that point, going to pay the $500.00, he told me to go back and sit down.  As I was headed back to my seat, he said to the bailiff “Bailiff, get your handcuffs lubricated.” I thought I had a constitutional right to a trial.  I thought bail could only be imposed on someone who is a flight risk.  I know many people who have had misdemeanor charges against them, including drunk driving charges, and they never had to post bail.  This infraction is, I believe, of less serious nature than a misdemeanor.  The discussion of “bail” came up only when I insisted on having a trial.  The judge became visibly agitated at me and asked why I thought I didn’t have to do the same thing everyone else was doing.  I don’t and didn’t know what everyone else was doing; I only know that I was there on my promise to appear for an arraignment on a traffic infraction, I appeared when I was supposed to appear, when the Court asked me how I pled, I respectfully said “not guilty,” to which the Court responded that I had to post bail.  If that was happening to everyone else, then it was as wrong for them to be required to pay “bail” to enjoy their constitutional right to trial as it is for me.

4.      The Court suggested that I would not get a trial until and unless I posted $500.00 “bail.”  I started thinking then that what the Court was labeling “bail” was really an admission fee to the trial Court, sort of like the old tickets one had to buy and hand over to enter certain rides at Disneyland.  It was not clear whether this was an “A Ticket” ride or an “E Ticket,” but I again said I was pleading “not guilty” and I wanted a trial.  By then the judge seemed quite furious.  He snapped that the matter was being continued to June 6.  I said I was not waiving time and I wanted a trial.  As his closing comments to me, he said that if I had not paid the $500.00 by the time of the continued date, he would add $300.00 to the amount he was saying was due.  He did not supply the authority for that warning.  Nor was it clear whether he was thereby prejudging guilt on the citation charges, or whether he was going to impose that amount, regardless of what he determined, in his “neutrality,” was the truth of the charge, or what.  I do not scare out of enjoying my constitutional rights that easily, and I had said, for a total of three times, that I was pleading not guilty and I wanted a trial.  I have consulted with counsel who knows the law of these matters and he does not know what authority would support the imposition of that additional $300.00 figure, but since I do not intend to pay this admission fee to enter the trial Court, I guess we will find out the authority, because I have been led to understand that many criminal defense attorneys are interested in learning what it is.

5.      Before I left, I politely inquired how I would go about getting a transcript of what had transpired in Court that day. The judge responded “I don’t care what you do after you leave this Court.  You can go spend $3,000.00 to hire a lawyer and figure that out; I don’t care.”

6.     I don’t think I have ever seen such rude treatment of a citizen who was simply and politely trying to enjoy his constitutional rights.

This all occurred in America, Folks – right here in Riverside County and Indio.

Needless to say, the dismissal motion that this declaration was appended to was granted today and the case was dismissed.  But that was no great loss to the voracious traffic court fiscal coffers, because the dismissal motion was called first, granted, and there was a courtroom of more potential lambs to the slaughter of “justice,” ready to be arraigned, and ready to be assailed and exploited out of their hard-earned funds.

When I first became aware of this sort of exploitation years ago, I brought the matter to the attention of the then-presiding judge of the Court system, Judge Thomas Cahraman, and he wrote me back that (a) it is not happening, and (b) if it is, it is okay.  Huh?  It was and is happening, and it is not okay, if we are a nation of laws and not of governmental hooligans.

That patent and purposeful rip-off of the public, denied to exist by a previous presiding judge, is what impelled me to run for judge against one of the greatest victimizers of the public in this scam the last time around, but his supporters also denied that what happens every day happens at all, and the easily fooled public fell for it.  You got the judiciary you deserve.  I and other liberty-oriented people did not.

Citizens who cannot afford counsel, who are the majority of people appearing on traffic arraignments, don’t know their rights in this regard, and cannot afford to litigate their rights on the subject, and hence they default into quietly paying their fines and leaving the courthouse, without trial or dignity.

There are circulars in the county law library regarding traffic court procedures that announce that a person appearing on a traffic arraignment who pleads not guilty must pay “bail” to obtain a trial.  There is no authority for that, and the Constitution speaks loudly against it, and I suspect most of the judges know it to be a fraud.  Paperwork from the Court, and some judges, cite Vehicle Code section 40519 as the authority for this scam.  Apart from the clear point that state statutes cannot trump state or federal constitutional doctrines, this one does not pretend to do so, if it is read.  That provision announces that if you have an arraignment date and you want to come in early and plead not guilty to the clerk, not in court but to the window clerk, they can require you to pay this “bail” to obtain a trial.  Neither it nor any other provision authorizes the collection of “bail,” which is really just an admission ticket to the traffic funhouse, to obtain a trial, if you have pled not guilty in open Court.  The Court cannot even read or understand the very authority it invokes for ripping unsuspecting people off.

There is nothing more loathsome that for a person’s government, the government of, by, and for the People, to rip off those people in the guise of administering “justice.”  The traffic court system has really morphed into a glorified appendage of the state tax revenue system, stealthily detouring Prop. 13’s limitation on taxation by duplicitously labeling the moneys thus extorted “fines” and “fees” and “assessments.”

This scam has to stop, and it has to stop now, and all judges who have enabled it should hang their heads in shame and resign.

Thursday, June 5, 2014

Marijuana Madness; the Jury Got it Right, Regardles of What "The Man" Wanted

This recent item from the San Francisco Public Defender's Office illustrates, in stark tones, why "jury nullification" should continue to be understood to be the Framers' intended and legitimate protection for us all against governmental over-reaching, whether by the executive, the legislative, or judicial branches. [Yes, the fundamental power of civilian juries protect us against bad judges as well as against other agencies of government, which is why juries, when told by judges that they don't have that power, should merely smile and say "Uh, ya wanna bet?/!"]

San Francisco, CA— A good Samaritan who offered a pinch of marijuana to soothe a stressed out stranger only to have his compassion repaid with felony charges was acquitted following a jury trial, San Francisco Public Defender Jeff Adachi announced today.

After three hours of deliberation, a jury on Wednesday found Stetson Qualls Jones, 24, not guilty of possession of marijuana for sale and sale of marijuana. If convicted, Qualls Jones faced up to three years in state prison, said his attorney, Deputy Public Defender Ariel Boyce-Smith.

Qualls Jones’ ordeal began Feb. 5 while hanging out with friends in the “Hippy Hill” area of Golden Gate Park. The group was socializing and smoking marijuana when Qualls Jones thought he recognized a man approaching the group and waved him over. Upon closer inspection, Qualls Jones realized the man was a stranger, but welcomed him regardless. When Qualls Jones invited him to smoke with the group, the man declined, asking instead if he could buy marijuana.

Qualls Jones testified that he told the man that he did not sell marijuana. The man appeared agitated and stressed out, so Qualls Jones reached into his personal stash, pinched off a small amount of marijuana, and handed it to the man, who turned out to be a police decoy.

Qualls Jones, who lives a communal lifestyle and frowns upon capitalism, testified that he refused the $20 the man offered him in exchange for the marijuana.

After the interaction, Qualls Jones was swarmed by five to six police officers, who were conducting a sting operation. Police found a bag of less than 1 ounce of marijuana in his jacket pocket. Police testified they found the $20 under a blanket where Qualls Jones was sitting.

Qualls Jones spent four days in jail before being released by a judge.

During the trial, Qualls Jones testified that he considers marijuana to be medicine and feels it should be freely shared instead of bought and sold.

Under questioning from Boyce-Smith, two police officers admitted they were receiving overtime pay in exchange for the buy-bust operation. One of the officers also acknowledged on the stand that his department receives federal grants for the stings.

“Despite conducting a well-funded operation, police did not bother to gather any corroborating evidence. There wasn’t a single photograph taken or a single witness interviewed, despite the fact that Mr. Qualls Jones was sitting with six other people in a public park,” Boyce-Smith said.

Throughout the trial, Boyce-Smith repeated a rhyme that captured the frailty of the case: “He didn’t accept a dime/they made up this crime/while they were getting paid overtime.”

In 2006, the San Francisco Board of Supervisors approved an ordinance making marijuana offenses the police department’s lowest priority. However, public marijuana sales are not included in the policy.

Qualls Jones was found guilty of possession of less than 1 ounce of marijuana, an infraction, and fined $25.

Adachi said Qualls Jones never posed a risk to public safety.

“A tremendous amount of city resources were wasted in a manufactured case against a man who was minding his own business,” Adachi said. “San Franciscans have been very clear about marijuana enforcement and I am not surprised a jury rejected this case.”

Wednesday, April 30, 2014

Don Sterling, the Racist, is Not Alone - The Punishment is Too Much

The understandable folderol about Don Sterling and his foul mouth and his Clippers franchise [his personal property] raises many interesting, telling, and sometimes disturbing issues, over and above the rankness of his bigoted speech.  For instance, I was amused to note that a friend who pretends to value free speech and balance deleted my comment on his Facebook page, along the lines of this post, about the lifetime ban of Donald Sterling, which sadly might say more about him than Sterling's known foul mouth said about him.

I think the punishment of Sterling is quite over the top. Sterling is a jerk, a bigot, an asshole, and he deserves whatever loathing comes his way. However, official, regulatory ostracism is not a standard practiced in this country.  And there are many team-members who also fit that description [including one who labeled the teams "black teams"], some of whom liberally use the "n" word while decrying those of other races who use it, and their racism is similarly revolting, and yet we don't see them banned, punished, highlighted as the cretins they are, etc.

Just as it is Un-American to practice ostracism, it is also un-American to deprive a person of the use and enjoyment of his property, which he alone assumed the risk to build up, to the same extent that it is un-American to be a bigot [although I suspect a high percentage of Americans really are bigots of various sorts!], and I think we should tread carefully before we allow collective moral self-righteousness be the measure by which WE decide if YOU can keep and enjoy your property and pursuit of happiness.

Make no mistake about it - I think Sterling is a scumbag and he has earned a place on the lower rungs of Dante's Inferno. We need to be careful, though, that we don't slip down close to him by our actions and public and private thoughts, glass houses and stones and the like.

Tuesday, April 15, 2014

Coachella Fest and Stagecoach

CoachellaFest and Stagecoach: as I have warned over and over and over, 1. don't discuss the subject of drugs with anyone you don't know, and 2. don't admit to anything of criminal significance, nor consent to searches of your person or belongings or car, when contacted by the police. Indeed, since too many people readily fall prey to predatory cops, program yourself to not say anything to the cops, other than your name.  Responding to “what is this?” or “have you ever been arrested before?” or “how long have you been here?” or “do you mind waiting here while I get a police dog?” or “where did you get this money?” or anything other than a legitimate question about your name can and will be used against you in ways you won’t understand until the police report supporting your arrest and felony accusation comes out, so say nothing to the cops.  It never helps, except by helping them serve their agenda and by helping me obtain a juicy retainer fee! 

Get this in your minds - the cops are NOT your friends when it comes to investigating crimes - they are friends only of themselves and of their agenda, and their agenda has nothing to do with your well-being or liberty. Telling the cops they can search your pockets that you know are crammed with drugs, and then coming to me to get you out of it, is thoughtless - protect yourself because you pay me $thousands to undo the effects of you not doing so.

Following this past weekend’s “Fest,” there is the stench in the nostrils of freedom-loving people who were the victims of the predatory tactics of the police searching, seizing, arresting, harassing them to build up their grant-funded portfolios in the hypocritical name of "public safety." I am outraged by some of the overbearing antics by the cops, and their police dogs, to profit from conduct that might technically be illegal [although not all of it is], but which is really not hurting anyone. We have lost our way in this Republic, all the while scolding regimes in other parts of the world for their anti-liberty activities that sometimes pale in comparison to ours. Back off, cops, and leave people alone, unless there is evidence of true crime, not the drug and alcohol manufactured crime about which you are suspiciously aggressive.

The police are predators looking out for their own interests – do not become their sadly easy prey by thinking you will help yourself by “cooperating” with tidbits of statements or consents – you will not, ever.  You only hurt yourselves by “cooperating” into supplying the government with evidence to be used against you.  Protect yourself from the Hun, because it is sometimes very costly to undo the effects of your lack of wisdom in protecting yourself, and a complete undoing is not always possible anyway.

Talking to the cops, or giving consent to search, is a suicidal move – are you into suicide, or self-preservation?  Only you know the answer to that, but I will not sugarcoat the psychological nature of cooperating with government when it is investigating crime – it is suicide.

Wednesday, March 19, 2014

Thoughts About Bullying on the School Ground

There is a resurgence in the incidence of, or at least in discussions and public attention about, bullying in our society, and there are some things that can be done about the problem right off the bat [over and above dumping the bullies in a mine shaft!], but we need to see what might be causing it because we need to focus on a systemic cure.

It is important to realize that school-ground bullying is simply a microcosm of our national political policies, from the beginning right up until now, and so one cannot entirely fault street punks from picking up on and emulating that which our “leaders” teach and do on a regular basis.

Bullying, by definition, is the exercise of physical force and verbal intimidation by an obviously stronger person against an obviously weaker one.  Bullies do not take on people of their own size and power, because they know there is a high danger of them getting cold-cocked: they are, in a word, cowards.  But isn’t that characteristic of our national war philosophy?

We know the greatest evils against individuals and peoples, and the most wide-ranging genocides, in our lifetime have been, and are practiced, by the U.S.SR./Russia, and China.  But while we get belligerently self-righteous about the supposed menace of their puppets like North Korea, Cuba, North Vietnam, Cambodia, and we get belligerently self-righteous about the comparatively lesser outrages by the Taliban and Iraq and Iran and Grenada and Libya and Yugoslavia, and by people we dislike in Pakistan and Egypt and Somalia and Syria and elsewhere, we never invade, attack, or threaten Russia or China.  That is precisely the same as the schoolyard bully:  we pick on and prod and invade and attack and execute the little guys [killing innocent civilians as “collateral damage”!], but we dare not move against the big guys.

And there is something in the American psyche that perversely celebrates, or at least tolerates, the bully.  There was a recent criminal case locally in which a police detective absolutely, verbally brutalized the teenage suspect for hours, over and over accusing her of being a liar when she would not say what the cops wanted, screeching “Bullshit” at her, threatening her with lifetime incarceration if she did not say what they wanted, so she eventually was coerced thereby into saying what the brutish cops wanted.  And we were certain that the jury would recoil against the over-the-top bullying by the cops.  But they didn’t.  They genuflectingly gave the government what it wanted out of the trial, thereby exhibiting the same values for jury trial practices as Benedict Arnold did for military practices - the jurors were traitors.

And then it has been found that the majority of school bullies were/are abused at home.  They emulate their perverse parents, learning that threats and physical violence is a regular way of communication, since their parents communicate with them that way.  Just as spanking by parents teaches kids violence by example, so too bullying by parents.  We teach and learn by example.

So, if jurors allow and hence enable constabularial bullying, and if national foreign policy practices international military and diplomatic bullying, and if twisted parents practice bullying, and if some school teachers administrators practice bullying, then how are school punks supposed to understand that such is evil and uncivilized?

We need to examine ourselves and our views, and then we can begin to find a cure for bullying.

Thoughts about Drunk Driving, and Government Fraud, and Jurors' Duties

Government propaganda relating to people’s conduct and habits are problematic under all circumstances [a lesson we should have learned from the example of Josef Goebbels, Ph.D.], but when it spews alarmist falsehoods [think Goebbels again], it is flatly evil, especially when it invites some of the public to demonize others of the public, both sides of whom are paying for the evil propaganda.

The government’s pogrom against drunk driving is a case in point.

In various media, we are exposed to the grand myth of the U.S. Department of Transportation's “Ad Council” propaganda blather that "buzzed driving is drunk driving." That is an utter falsehood and should not be sponsored by the government nor given prominent posting by newspapers and the broadcast media.

The definition of driving under the influence of alcohol in this state is very clear and precise, albeit grossly misunderstood. And, it seems, it is also grossly misrepresented by government to the jury-sitting public, and purposely so; think Goebbels yet again.

Let's look at the definition:

“A person is under the influence if, as a result of consuming an alcoholic beverage, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.”


You see, there is nothing about “buzzing,” because one can be cautious while experiencing a “buzz,” and one might not be cautious even if he never experiences a buzz.  It is not just any impairment by alcohol that is illegal, but only one of such a degree that one cannot exercise ordinary caution, yet there rarely is any caution discussion in DUI trials or investigations or propaganda.  Very rarely.  And no matter what other evidence there is, if there is no evidence about diminished caution, indeed no beyond-reasonable-doubt quantum of diminished caution, there cannot be a lawful conviction of drunk driving.  [“Have you all seen a person at a party who you know has had too much to drink?”, the stock DA query to a jury, has nothing to do with “caution,” yet it is grooming the jury for an outcome not related to the true charges.]


Note too that the alcohol at issue needs to have been “consumed.”  Consequently, the endogenous alcohol one produces in one’s body as a function or metabolism, regardless of what that does to one’s caution, cannot satisfy the criminal law definition of “under the influence.”  Moreover, we are told to assess the caution standard in terms of the circumstances facing the person at the time.  Lateness of night; nervousness of being hounded by the police, who might follow one for miles until there is a vehicular misstep rationalizing a detention and investigation; anxiety about family or job or finances; eagerness or reluctance to get home; street distractions – all of such things must be analyzed when a jury assesses the circumstances of the matter to decide the caution question.


There is no area of human endeavor so wracked with high-priced attention; governmental prejudice; government-funded agendas; political pressure on legislators, judges, cops, and prosecutors, as there is in the arena of drunk driving prosecution.  The community is overrun with “anti-drunk driving campaigns,” expensively and noisily sanctimoniously funded by politicians, community leaders and organizers, attorneys who will happily take your money to pretend to defend you on your drunk driving beef while taking others’ money to tisk-tisk you for the same conduct, and lobbyists.  While we are inundated by such programs, how many have you seen that are devoted to eradicating murder, child molesting, rape, political and judicial corruption, abuse by police and other government types, or electoral duplicity?  None, of course.  Although those practicing the latter groups of outrages are the real demons in the Republic, much more effort is made to make demons out of drunk drivers than to bring to justice the real demons victimizing us.  People arrested for drunk driving are self-righteously demonized; those truly victimizing the populace have their ills rationalized away, or downright ignored. My God, we are a weird people.


Being politically decreed bogeymen, those accused of drunk driving have to take extra precautions.  What are they?


1.    Beware of drinking establishments outside of which bored and zealous cops lurk in the shadows to pull you over when you leave the parking lot.  No judge, beholden to the cops at the next election, is going to rule in your favor when you accurately claim that you were targeted for being in a certain drinking place and were pulled over without committing any driving offense.  If a smiling, shiny-badged officer says you were weaving, speeding, ran a red light, or failed to signal a turn, you could have a bus full of nuns swearing the opposite and the judge would still side with the cop. [“Endorsed by law enforcement” on one’s campaign literature is all one needs for re-election.]

2.    When you are pulled over, make a controlled stop and turn off your engine.  Start recollecting where your license, insurance, and registration are, and be prepared to competently turn them over to the officer without spilling them on the floor.

3.    To the officer’s query of “do you know why I pulled you over?,” politely say “no” and nothing else.  Do not admit to speeding, turning, knowing what the speed limit is, anything.  Do NOT admit to drinking any alcohol.  Do NOT admit to anything.  Do not say where you were coming from or where you were going.  Shut Up!

4.    If the officer asks you to perform field sobriety tests, politely say No!  They are designed for failure, and there is no established, scientific causal connection between impairment by alcohol for driving purposes and one’s performance on those non-driving balance and coordination tests.  If he asks you to blow into the pre-arrest breath device, politely decline; the so-called “science” associated with those junk boxes would not be admissible in any other type of case.  If he arrests you and tells you that you are required by law to submit to a blood or breath test, take a breath test. [Some attorneys say blood; I say breath; I will explain why in other circumstances, if need be.]  If you take a breath test, they are supposed to tell you that you then have a right to a back-up test of blood or urine.  They don’t like to give the urine option, even though the law requires it. Tell them you want a back-up test of your urine.

5.    Then say no more.  The “shut up” requirement is the hardest to follow.  I have had clients tell me “But I am honest; I don’t want to lie.”  I didn’t say to lie; I said to say nothing!!!!!  I know it is hard to do; most attorneys can’t shut up, so it is hard for their clients to do so.  Trust me – it NEVER helps to talk to the cops when you are in these circumstances – NEVER, ever.

6.    At the jail, quietly go through the booking process and say nothing except for the biographical information they are asking of you.  Say nothing else.  Make your phone call and wait for the horrors of the event to subside.

7.    If they take your license and give you a pink sheet, that is your temporary license, good until the DMV proceedings are concluded.  You MUST make a call to DMV within 10 calendar days of your arrest, without exception.  If you do not make that call [or have your attorney do so], you will lose the chance for a hearing about the lawfulness of the license suspension that is associated with the chemical test being > .08%.  You or your attorney must make that call within 10 days of the arrest.

8.    You should retain a DUI lawyer.  All DUIs can be fought and are winnable if you have the right lawyer.  Yes, the right one is expensive – but not nearly as expensive as a conviction will be, in the long and short run.  General lawyers, and general criminal lawyers, are not schooled in the intricacies of DUI law and practice – you must hire a DUI lawyer.  Not everyone advertising themselves as DUI lawyers are thus qualified.  Beware of the lawyers who put pressure on you about your conduct or to take a plea bargain or to settle the case early on; real DUI lawyers will put pressure on the government to get rid of the case.  Find out if the lawyer who claims to be a DUI lawyer is a member of either of the two main DUI lawyer organizations, California DUI Lawyers Association [CDLA], or the National College for DUI Defense [NCDD].  Find out if they have ever taught a seminar at either or both.  Drunk driving defense is like brain surgery: you would not hire a chiropractor if you had a tumor on the brain, and you should not hire the legal equivalent of a chiropractor if you have a .08% or greater BAC while driving, and for the same reason.

9.    Presume not that your government is being honest with you about this crime, about the statistics supposedly supporting it, nor about the agents executing and carrying out: government fraud and deceit are the signposts of the horrid journey into the realm of drunk driving criminality.  If “I am not a crook” was laughable and demonstrably false when uttered by the chief executive of the Republic, you would be foolish to give it more credence if uttered by lesser executives.  The executive branch has an agenda in these things [as in all things], and serving your interests, or those of your families, is not among them.


Make no mistake about it, drunk driving is a political crime.  Its politics derive from the fights that gave rise to the 18th Amendment to the Constitution and Prohibition, and the political measures being taken now to demonize those arrested for drunk driving are in service to the distress that the prohibitionists experienced when the 21st Amendment repealed the 18th.  I have written elsewhere about the drunk driving exceptions to the Constitution, and to evidentiary and statutory law, and one glaring example hit the books not too long ago, revealing to all who might be harboring doubts that result-oriented politics are what colors all of governmental action in the field.


In the 1940’s and 50’s, fledgling science suggested that the alcohol which could be detected and measured on the breath resulted from alcohol molecules that passed from the blood to the alveoli in the lungs, which was then exhaled.  A certain equilibrium was imagined to exist between the alcohol in the blood and that in the alveoli, such that there could be a fixed conversion enabling breath percentages to approximate blood percentages. As a result, machines and statutes and regulations were established based on that nascent science – alveolar “air” = “breath” for breath alcohol percentages [simplistically].  Legally, breath alcohol for criminal conviction purposes has been enacted to mean alcohol on the breath that originates in the alveoli.


As with any science, evolving notions proved the original ideas to be incorrect.  The body of advanced science of the matter now realizes that the alcohol detected in one’s exhalation comes not from the deep alveoli, but from capillaries in the airways before the alveoli, and that what is exhaled has virtually no alveoli-originated alcohol.  Consequently, when the criminal charge is that a person had, say, .08% BrAC, breath alcohol, one should be able to have a scientist testify that the number on the machine does not represent alveolar breath alcohol percentages, and therefore the .08%, as a criminal charge based on alveolar breath, is not scientifically accurate.  After all, we all know that the due process clauses permit a criminal defendant to put on evidence that what appears to be a crime is not, correct?


Well, not so fast – there are more than mere constitutional law and individual liberties at work here: there are the politics of drunk driving; there are state and federal statutes and regulations; there are our corporate pals who made $millions selling the devices that supposedly detect alveolar alcohol – what are we going to do about all of that establishment, if the true and contrary science were admitted to juries?


The solution for our state Supreme Court was the same as the solution Pope Urban VIII came up with when Galileo Galilei had the temerity to broadcast the true science about the Earth circling the sun: when establishment forces are faced with contrary and inconvenient truths, you declaim, deride, and banish the truth and preserve the establishment.  And that is what our Supreme Court recently did in the infamous Vangelder decision.  Our Supreme Court embraced Pope Urban VIII and opposed Galileo!


There is not a balanced playing field here; there are purposeful and evil sorts who have axes to grind that they want to sharpen on the noggins of those arrested for, or suspected of, drunk driving, and you should not be their patsy.


Government propaganda wants to influence the perceptions of the public, particularly that portion of the public sitting on juries, and it wants to evict science from the realm of a crime that fundamentally is defined by physiological science, and it must be stopped.  Why do you think we see signs posted on the streets and highways exhorting people to call 9-1-1 if they know of a drunk driver?  That is to prejudice the potential jury pool.  How would you know if you are in the presence of a drunk driver?  You would not know by observing driving patterns of those around you.  There are sober people who drive horribly and impaired people who drive exceedingly well.  You don’t see signs that suggest that you should call 9-1-1 to report murderers, rapists, child molesters, burglars, thieves, do you?  That is because the aim of the signs is not to have the populace apprehend drunk drivers or others suspected of crimes, but rather for the populace that may later sit on juries to become prejudiced against drunk drivers.


The Framers intended juries of citizens drawn from the community to view government’s evidence against people’s liberty with skepticism, the standard for which requires that people may not be found guilty without a quantum of evidence adding up to beyond a reasonable doubt.  And even if that quantum is present, a jury does not have to find a person guilty, and a conscientious one frequently will not.  Sadly, though, despite the Framers’ understanding of the dangers of government power, juries increasingly lean in the direction of government in political crimes such as drunk driving, revealing that the propaganda has worked.  Jurors should not become pawns in this game of chess invading people’s liberties: they were intended to be queens and knights.  And every time a juror votes against liberty because he/she presumes the government is telling the truth in these political crimes, he or she thereby spits on the blood shed by the Founding generation to preserve our liberties.