Tuesday, June 16, 2015

Politics of Drunk Driving Litigation



          Some people don’t quite get it when I correctly observe that drunk driving in this state [and really in all states, thanks to the federalism busting intrusion into the substance by the federal government] is a political crime.  Maybe they don't want to get it.  What is really going on is that political neo-prohibition groups like MADD and SADD and others have put pressure on the political branches [and the judiciary is the most political of all, despite, and because of, its protestations to the contrary] to become increasingly harsh about drunk driving conviction penalties.  And instead of decrying the pressure, the various branches of government largely genuflect to the improper and considerable pressure by the religio-moralist groups who remain distressed that the 21st Amendment passed.
We have written and spoken about the horrid Vangelder opinion by our supreme court [I really can’t capitalize the court, which would be awarding it more credit than it is due], wherein the science of the matter there boiled down essentially to a debate between Pope Urban, VII, and Galileo, and the supreme court decided to side with mythology and against science, because its MADD masters demanded as much.  Now we have a new judicial outrage, Coffey v. Shiomoto (2015) 60 Cal.4th 1198.
The court defines the issue as: “In an administrative hearing to review the suspension, plaintiff‘s expert witness opined that her BAC was rising at the time of the chemical tests, suggesting her BAC was below the 0.08 percent threshold at the time plaintiff was driving. Both the Department of Motor Vehicles (DMV) hearing officer and the trial court discounted the expert‘s testimony in part by relying on arrest reports, which described the physical manifestations of plaintiff‘s intoxication, such as her general appearance, erratic driving, poor performance on field sobriety tests, and the strong odor of alcohol she projected.”
“We decide in this case whether the trial court erred by considering, in addition to the results of breath and blood tests, other circumstantial evidence of intoxication to conclude by a preponderance of the evidence that plaintiff drove with a BAC at or above 0.08 percent. As we explain, we conclude the trial court did not err.”
The translation of that is even though a scientist has calculated what the BAC was at the time of driving, the government can disregard that calculation and rely on things like FSTs and odor of alcohol to decide what the BAC was, close enough for government work!  Huh?  The court decided to see if they could write something even more outlandish than they penned in Vangelder, and they succeeded.  The problem is that they used some doctrines that anyone knowledgeable about this subject would realize are utterly invalid.  Oh well, what the heck: it is drunk driving, after all, the modern day equivalent of what was occurring in 1692 in Salem, Massachusetts!
First off, to disregard the science of looking at four increasing BACs now and scientifically calculating backwards to the point of driving, they decide to look at driving and odor of alcoholic beverage and FSTs.
The problem is that there is no peer-reviewed scientific test that has found a causal connection between FSTs and BAC [which is why any such connection is not admitted in this state!] nor between such and impairment by alcohol [which is not the issue at an admin per se hearing].  There is no peer-reviewed science connecting odor of an alcoholic beverage to BAC [especially since the odor detected is of the cogenitors mixed with the alcohol and not the alcohol.  And there is no peer-reviewed science connecting driving pattern with BAC.  Yes, yes, there are some non-peer-reviewed projects funded by the executive, its National Highway Traffic Safety Administration, carried out by a couple of psychologists, not relevant nor neutral scientists regarding the science of physiological and neurological impairment, but their work is voodoo conclusionism, not science.  So to put that on the same balance beam as real science is adversarial Vangelderism gone mad.  Or MADD!
How did things balance out that the DMV hearing [where hearing officers are expressly permitted not to be neutral; they are institutionally congruent with the party taking the anti-liberty action]? 
“At the ensuing administrative hearing, the DMV hearing officer had before her the ―Officer‘s Sworn Statement form, Officer White‘s arrest report and the supplemental reports of Sergeant Martin and Officer White. In addition to considering these documents, the hearing officer heard telephonic testimony from Jay Williams, a forensic toxicologist with extensive experience, who testified for plaintiff. Williams noted the result of plaintiff‘s first breath test was 0.08percent, the second test three minutes later was 0.09 percent, and her blood sample taken about 20 minutes later tested at 0.095 and 0.096 percent. According to Williams, these results suggested the alcohol level in plaintiff‘s body was rising at the time of the tests and, given the totality of the circumstances, were consistent with plaintiff‘s BAC being below 0.08 percent at 1:32 a.m. when she was first pulled over by Sergeant Martin.
“The DMV hearing officer rejected Williams‘s testimony regarding a rising BAC, explaining in her ruling that the witness‘s two conclusions—first, that plaintiff‘s BAC was rising at the time she was pulled over, and second, that It may accordingly be deduced that her BAC was below 0.08 percent when she was driving—were not supported by reliable evidence, were―too speculative to support the contention, and were―based on a subjective interpretation of the evidence.”  Yeah, .08, .09, .095, .096 are not rising in DUI new math!
So, we have a scientist testifying live, subject to cross-examination by the hearing officer, about what the mathematical/scientific calculation was versus a cop’s hearsay report of symptomology, and the symptomology carries to day to define the numbers???  Was Alice of Wonderland fame the hearing officer?
Playing with a stacked deck is worse than not playing at all, but the judiciary is supposed to protect us from rapacious and thoughtless government, at least when litigation is brought to bear against the outrage.
Then the court discusses the “rebuttable presumption” of Vehicle Code section 23152(b), the problem being that CALCRIM has dropped reference to that “presumption,” because caselaw provides that the proper word/term/concept is “permissive inference”: “presumption” is not supposed to be used for the concept being addressed there!  Does that presage that the supreme court will reverse itself if the matter comes before it again and will allow “presumption” to be employed there, or do they simply not understand their own caselaw?
The court says that the presumption was rebutted here, but their repeated employment of a previously disallowed term is most troubling.
The court finds pivotally compelling an old Arizona case that announced that BAC could be ascertained from circumstantial evidence surrounding the driving and the individual, while agreeing that such is not really authoritative here.  That is interesting that our supreme court finds sufficiently persuasive a 1983 Arizona case to deprive this motorist of liberty, but our state courts do not find persuasive a much, much later Arizona case that holds self-evidently that “implied consent” is not Fourth Amendment consent for warrantless DUI blood draws!  It can’t be that they are result-oriented in what foreign cases they will rely on, can it?  Naaahh!
If a judge or DA had to defend against losing their robes or Bar card based on the quality of the result-oriented, pseudo-science evidence introduced to strip this woman of her liberty right to drive, they would be shrieking their proper outrages to the rafters.  But because this is drunk driving, who the Hell cares about litigational precision!/?  The supreme court should hang its head in shame.  But it has none.

Wednesday, May 6, 2015

ACLU Finally Enters Fray on Illegal Traffic Court Bail Scam

https://www.aclunc.org/news/aclu-warns-california-counties-charging-payment-court-dates-unconstitutional
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That is a fight that I have been making for many years.  In Riverside County, the traffic judges demand “bail,” without a finding of flight risk, of all pro per arraignees, but if they are represented by counsel, the “bail” is “waived.”  I have set up two speedy trial attacks on that, pro bono, with defendants willing to undergo the inconvenience of coming back for the continued arraignments required of those who don't pay the “bail.”  On one, I filed an amicus 1382 dismissal motion when the continued date passed the 45 day point, which was denied by the traffic pro temp. [who should lose his license to practice law, by the way for the shameful way he treats pro pers on that stuff], and then the clerk saw that my name was on the amicus motion, so she whispered to the judge on the continued date that he had better let the defendant have his trial.  He was, of course, found guilty, and I did a pro bono appeal and it was reversed by minute order [so nothing to seek publication on], the single appeals judge musing that what was happening in the trial court was unsupported by law.  I agreed.  He is now the PJ of the county but it is still going on!
 
On the second one, I filed a pro bono/amicus 1382 dismissal motion, and when the judge saw my name, he granted the motion to dismiss on the day of continued trial.
 
I had complained to a previous PJ of Riverside County, and he wrote back an incomprehensible letter that (a) it is not happening, but (b) if it is, it's okay.  I knew it was happening, because they tried to pull that on me and I refused to pay, so they buckled under and gave me my trial – on which I was acquitted.  And I know it is not okay, because "bail" may only be imposed on a pretrial person if he is found to be a flight risk - never as an admission ticket to trial court!
 
But it goes on and on and on here, and I cannot be Crusader Rabbit for the world, so I am glad the ACLU is getting involved.  I think when I first heard of this traffic court scam a decade or so ago, I wrote the ACLU about it, but they apparently were not interested then.
 
It used to occur in the Joshua Tree court, but the judges there wised up to the Constitution and it does not happen anymore.  I do not know about the rest of San Bernardino County.
 
Thousand and thousands and thousands of pro pers have had their constitutional right to court trial extorted from them by this pernicious and contra-constitutional practice.  Were we able to sue judges for their malfeasance [an immunity the Courts manufactured for themselves, and then for their prosecution chums, from whole cloth], a class action could be brought, reaping $millions.

Wednesday, April 15, 2015

Best Coachella Fest Defense Available Anywhere



As I announced and predicted would occur in various forums, there were many arrests at the latest incarnation of the Coachella Valley Music and Arts Festival [Coachella Fest], and most could have been avoided if my advice had been followed.

You need to understand that local government coffers swell with these sorts of arrests, and subsequent prosecutions, because they are Grant funded, meaning the local agencies receive enormous sums of money from Sacramento, which was sent there from Washington, D.C., which was taken from you in taxes back here, to screw over people, in the disingenuous name of “health” and “safety,” in this nation conceived of Liberty.  And most of these sorts of arrests were and are avoidable, if you just are careful of to whom you are speaking, of who you are letting sidle up to you, and then of what you say and allow when you are detained and arrested.  You are not required to talk to cops, nor to let them search, and you should not, because it never, ever helps.  They are there to put cases together, not to seek the neutral ends of justice, nor to help you out of the downsides of your bad choices.

Even though avoidable things have not been avoided, that which should have been avoided can be mitigated or eliminated if you have the proper attorney.

No one is more effective nor experienced with dealing with drug, alcohol, and conduct related offenses at these festivals [or anywhere else] than am I.  No one has a better track record, credibility in the Courts, grit, or scholarship than I.

If you have been victimized at one of the festivals, this weekend’s or next weekend’s Coachella Fest, or the later Stagecoach, contact me.  You can do no better than have me on your side if you have been accused of crimes; you can [and too many do!], however, do much worse.

It does not cost to talk to me about your case; it will, however, cost you more than mere money if you choose to go elsewhere.

Call for an appointment: 760-863-3840.

www.kennedyforlaw.com

Thursday, February 19, 2015

Like it or Not, Cops Do Lie and Plant Evidence

I have said this for years, sometimes to the outraged condemnation of police groupies and pissed-off cops, but now a cop himself says what I could not say better nor more effectively.  Does this mean all cops are bad?  No; many are good.  But the presumption that a cop is truthful merely because he wears a badge is idiotic, and it is one of the main problems in jury trials today - jurors do not want to believe that what appears to be a lie is, when uttered by a shiny badged, Boy Scout-looking cop.  Think again:

http://thefreethoughtproject.com/officer-reveals-planting-evidence-lying-part-game/#5ubqphjYqDsAbeCw.01

www.kennedyforlaw.com

Tuesday, December 16, 2014

May the Juristic Devil Take the Heien-Most; We are Now a Full-Fledged Police State



Does anyone really question whether we have long ago sunk into the muck of being a police state?  If anyone is so deluded, the newest United States Supreme Court opinion on Fourth Amendment matters should sweep away such a delusions.

Heien v. North Carolina came out yesterday, ironically Bill of Rights Day, and it involves a traffic stop of a vehicle, which ultimately results in the collection of cocaine because the occupants of the car couldn’t shut up and they consented to a search.  What brought the case to the Supreme Court was the fact that the cop stopped the car for a brake light malfunction that really was not against the law: the officer made a mistake of law about the facts he was observing on which he based his liberty invasion.

Now, we all know that “ignorance of the law is no excuse,” right?  If you are accused of breaking the law and you genuinely don’t know your conduct is illegal, you cannot invoke that doctrine to get out of accountability – you are deemed to know the law.  Unless you are a cop; a cop now is not deemed to know the law.  Giving, institutionally and systemically, greater rights to police than enjoyed by the polity has to be the definition of a police state.

In an opinion that will live in infamy, the Court ruled that reasonable good faith misunderstanding of what the law requires is a defense to a motion to suppress evidence.  In effect, they are ruling that the badged/jack-booted “law” “enforcers” are not deemed to know the law they enforce!  Huh?

This really is a conscience shocking opinion by SCOTUS, which had a duty appointed by the Framers to protect people from excessive government. The default position in this Republic was to be for liberty and against power, but that has eroded steadily since the early years, and then at juristic lightspeed since the Nixon justices were appointed in '68. It is interesting that the chief justice cites two-century old cases to help support his anti-liberty screed, yet in that era, if there were violations of the Fourth Amendment, cases would get dismissed and government agents and judges could get sued, and the agents could get arrested for trespass, and habeas would lie. But the current court does not embrace those early doctrines, because they protected individuals and they properly but inconveniently punished government; “originalism” is only embraced these days where it appears to support power, which is ironically counter-originalist! This court only embraces the early doctrines that they think assist the power side of the equation.

If we ever needed proof of the long self-evidence notion that we have become a police state, this case is written to illustrate that truism. Ignorance of the law is not a defense for you or for me, but it is for the court's pals sporting badges [yes, I know the chief justice made an almost humorous, and patently cynical, distinction of that idea as between regular folk and their government chums, but his utterances on that have the substance of the Emperor's iconic raiment].

Although this purports to be a narrow opinion, it will be expanded by our trial court judges in our suppression motions [negligently or otherwise], since they are no more required to know the law and its limitations than are cops; it’s only the plain folk that have to implicitly and expressly know the law, or else they get screwed.

There was a time that everyone understood that liberty is the default position in this Republic and power is the disfavored position.  That founding notion has been turned on its head time and time again since 1968, and now it has been scrapped entirely.

www.kennedyforlaw.com