Friday, March 11, 2011

DUI Screwy-isms

One of the great outrages in drunk driving enforcement and litigation is the absurdism that the non-law-trained DMV hearing officers [who used to be clerks selling Vehicle Codes at the front desk and will be returned to that assignment if they do not steal enough licenses from the motoring public!] are invited to presume that cops have done what cops are supposed to do in investigating DUIs. That is, in lieu of real evidence needed in virtually all walks of litigation before rights/privileges can be stolen by government, the presumption that the cop did his job supplants much of the need for proof.  Huh???

Uh..., the fox guarding the henhouse would have more validity and bring more safety.  Now, no, chill out, this is not an attack on police in general, nor on the ones I know and trust in particular; this is revealing a pro-government outrage that is to due process what Bernie Madoff was to stock investment advice.

Nobody in the know about police work and police motivations, who are honest about the subject, would suggest that anyone should rely on the veracity of subjective police reports!  It is well established that cops have enormous incentives to stretch the truth, so much so that in an even contest between a citizen and a cop, it is reversible error to presume the cop to be more credible than the citizen. People v. Dickerson (1969) 273 Cal.App.2d 645, 650 and fn. 4, cited app., without contradiction by any other justice, as evidence of the “prevalence of police perjury [in criminal investigations/testimony]....” Briscoe v. LaHue (1983) 460 U.S. 325, 365 and fn. 36 [Marshall, J. dissenting]. 

As the Dickerson Court insightfully notes, “The court appears to have ignored: 1. that the natural desire of a police officer to see a criminal brought to justice may cause him to be less than candid in connection with a collateral inquiry which does not go to what appears to him to be the only relevant question: was the defendant a thief?  2. That law enforcement is often a 'competitive enterprise' (Terry v. Ohio, 392 U.S. 1, 12 [20 L.Ed.2d 889, 900, 88 S.Ct. 1868]; Johnson v. United States, 333 U.S. 10, 14 [92 L.Ed. 436, 440, 68 S.Ct. 367]; and 3. that a police officer who has conducted an illegal search and seizure may be subject to criminal, civil and disciplinary sanctions.” Dickerson, supra at page 650, fn. 4.  He would also be subject to such sanctions for other illegal activity for which he would need to shade the truth for his own professional benefit, including matters related to a DUI investigation.

And, nevertheless, cops are presumed to do what they are supposed to do, per Evidence Code section 664?  We take people’s license and liberties based on that evidentiary naiveté?  Apart from the Dickerson teaching, supra, let’s just look at a few recent things regarding the credibility of cops: [seven people from San Bernardino Sheriff’s Department indicted for theft, including command officers]; [Cathedral City cop arrested and charged for sexual misconduct]; [57 cases dismissed due to misconduct by San Francisco Police] [Videos of rampant corruption by San Francisco cops in recent drug busts]

And on and on; not a day goes by that we do not see some new police corruption event, so the idea that we are stripping people of their freedom of locomotion and related livelihoods on a due process deficient procedure, sprinkled with presumptions that cops and the rest of government do-what-they-are-supposed-to-do-so-who-needs-evidence?/!, is appalling.

If we really believe in a rule of law, and don't merely invoke that saying to make us feel good and superior to the rest of the world, then we really need to pay attention to the evidentiary shortcomings that are invited into the DUI enforcement henhouse.

No comments:

Post a Comment

Be civil, intelligent, and non-confrontational.