Thursday, May 26, 2011

Memorial Day and DUI Checkpoints

With Memorial Day close upon us, people need to prepare themselves again for those pesky DUI checkpoints, because those liberty infringement devices are increasingly the rage in local law enforcement.  They are not popular among police agencies because they are effective, because statistically they are not.  They are popular because they are funded by grant funds from Sacramento, that come from Washington, DC, that had been taken from us back here; it is a big, costly circle that your and my money has traveled with which to then screw over you.
The grant system is one of the greatest evils in public policing, because grants are essentially a political bounty for pressing certain types of cases; the merit of the case does not matter; the filthy lucre funding its processing drives the affair.  And nowhere is the evil more manifest than in drunk driving, DUI, DWI, or whatever label.
MADD, the lineal descendants of the Women’s Christian Temperance Union of old, which gave us Prohibition and the 18th Amendment, are furious that the 21st Amendment repealed Prohibition, but their neo-Prohibitionism is even more dangerous than its ancestor oppression.  They have, with phony statistics and threats of placard-laced demonstrations, conned or intimidated legislators, judges, DAs, and cops into increasing harshness regarding drunk driving, and so they all lose their soul in the evil bargain, because much of what is pressed is based on fraud and victimization.
Of course, if the Framers’ will be done, civilian jurors would be protecting accusees from governmental overreaching, but jurors have increasingly lost their independence and have come to believe that their government is good, reliable, trustworthy, and to be heeded.  Yeah, idiotic as it sounds, people on juries cannot seem to see, or do not want to believe, the corruption in their very presence, and in their collective names.  Perhaps their own sense of security would be lessened if they came to understand how corrupt their government is in these things, but their lack of institutional skepticism has dangerously undermined the very foundation of our jury trial system.  At the same time that we see an emergence of lip service to Framers’ intents, such as with the Tea Party and other superficial “originalism”-advocating groups, we inconsistently see a diminishment in faithful attention to the standards undergirding the Republic.
The truth of the matter is that government makes a bundle from drunk driving, between the block grant moneys from DC, to the penalty assessments on the fines [now about 400% of the base fine, if not more, some of which goes to build and improve courtrooms to house the “neutral” judges handing out the fines!], to the various fees, to the costs of the rehabilitation programs, to the need for more DAs and judges to try the matters.  The fiscal corruption underlying DUI investigation and enforcement would make Bernie Madoff look like Mother Teresa in comparison.
“But what of the dangers of drunk driving?”  Garbage!  The system, at the insistence of the pushy harpies from MADD, have created the category of “alcohol-related [accidents, deaths, incidents, etc.]” in place of drunk-driver-caused [same],” because the incidence of those things being actually “caused” by drunk drivers is miniscule, and that truth would undermine their political agenda.  But something gets entered into the stats as being “alcohol-related” if a sober driver hits a drunk pedestrian; if a sober driver’s drunk uncle in the back seat is thrown out when the car flips over because its tire fell off; if a drunk driver is sitting lawfully at a light and a sober driver negligently or intentionally runs into him; etc.: that category, “alcohol-related,” has nothing to do with who caused what.  Yet those “alcohol-related” stats are the ones that supply the pneumatic numbers that make everyone go nuts about drunk driving.
Drunk driver caused accidents are in single digit %-ages, which would not help the MADD harpies, nor the block grant ghouls, nor the legions of government employees and private service-providers who profit from DUI enforcement and prosecution and conviction.
So, what of checkpoints – they are legal, are they not?  Well, it all depends on what you mean by legal.  The Framers would not have tolerated such a suspicionless invasion of privacy.  As Justice Clarence Thomas, a student of the Constitution whose scholarship on the subject is almost as faithful and pure as mine, has opined, “I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.”  But, you see, most judges, even up to the U.S. Supreme Court, are politicians; few are scholars, and even fewer are faithful to the founding principles.
And those politician judges have decreed that a “properly” erected and run[!] checkpoint is “legal,” just as other politicians have found it beneficial to set up the scheme in the first place, just as other judges in earlier times found “separate but equal,” and preemptive imprisonment based on race, and property ownership in human beings legal and constitutional.  The fact that judges say something is okay to serve transient political interests is no more a guarantee of correctness than would the reading of the Bible by the late Osama Bin Laden make him a Methodist.  But even in the result-oriented constructs by modern political judges, the checkpoints do have to be properly erected and run, and very few are, and hence the fruits of their operations are suppressible, if attacked by a knowledgeable and experienced attorney, even under the watered down constitutional standards of the neo-Prohibitionist judges.
But beware, if you go through them.  First off, watch, look, and listen, and if you see one ahead, turn off; that is legal.  Don’t give the constabularial ghouls the opportunity to tell you to stop, tell you to wait, tell you to go, tell you to blow into their hands, command you to answer questions, etc.  And, you see, that is part of what is going on here.  Cops like the checkpoints, whether they get any arrests out of them or not, because they then have the chance to play “we’re the Man; we’re in charge of your freedom” to the citizens thus stopped and inconvenienced and harassed.  This is an exemplar of police statism, not public safety.
The fact of the matter is that communities that do not receive these grant funds do not do checkpoints on their own dime, because across-the-board dragneting of that sort gives miniscule results for the efforts expended.  There might be 500-800 citizens stopped at checkpoints while going about their business, and from that will come only 1-3 DUI arrests, if that many.  Every police chief worth his stars [and some wear five, like General of the Army Douglas MacArthur!] will confess that saturation patrols are far, far more effective in apprehending the few true drunk drivers than are checkpoints.
So, first try to avoid it by turning off onto a side street, in a controlled fashion.  If you get stuck in one and get approached by the police, have your license, registration, and proof of insurance information readily available, and hand them over when asked [without fumbling], and say you do not want to talk, period.  You don’t have to talk; you don’t have to say where you are coming from or going to or whether you have had anything to drink, nor should you.  Politely decline to say anything.  You do not have to be given your Miranda rights before you are free not to talk; and you do not need to be given them before what you blab about can be used against you, unless or until you are actually in custody – then they have to advise you of your right to remain silent.  I am advising you now: shut up.
If they then shunt you over to the investigation line, have controlled operation of your vehicle, be polite, but answer no questions, say nothing, and do not perform any objective symptoms [field sobriety] tests – you have a right to refuse, and politely do so, on advice of counsel, this counsel!  If anyone tries to suggest later that you did not perform those tests because you must have felt guilty, your position always must be that you did not do them solely because a knowledgeable attorney told you they are invalid, unreliable, and a trick to make innocent people look guilty; you know they have no validity, which is why you decline to participate.  One of the field sobriety tests is the hand-held breath device.  They have to tell you of your right to refuse that test, and you always should refuse it: those junk meters are to blood alcohol percentages what tea leaf reading is to truth, and many of them can be manipulated by the operator to give false high readings.
If you are arrested, of course, you have to submit to a breath or blood test, upon demand of the officer.  Ask for breath, and then a back-up urine test, which is your right.  When they say you cannot have a back-up urine test, politely request that the officer record that you have requested it.  Then say nothing else.  Again, anything you say to the police can and will be used against you, either in the order you said it, or in any order that helps their case.  The cops are not there to help you.  They are there to put DUI cases together and to advance their power-expanding agenda.  They make money by putting cases together; they make no money by being nice to you and letting you go, so they will not.  Ever.
Checkpoints are tyranny, DUI arrests and convictions are the product of evil maneuvers by purposeful people, and all aspects of both the stop and of the prosecution are fightable.  Do not cave in, or else evil people will thereby be emboldened to harass others.
If you get arrested, the cop will give you a pink sheet of paper, which is your temporary license: the arrest has triggered a presumptive suspension, which will activate 30 days after the arrest, if you do not call DMV within 10 days of the arrest and ask for a hearing.  Do NOT wait for the criminal case to be filed; that ten days is a hard and fast rule, so unless you are going to immediately hire counsel, make the call yourself, or a four or twelve months suspension will be triggered automatically, and solely by your failure to call within ten days of your arrest.
If you do get snagged at the checkpoint and arrested, there are things to be done, if you have the right lawyers.  Call us.  Anybody who has passed the Bar exam can represent people accused of drunk driving, and most will convince you to plead guilty; few of us are skilled enough and motivated enough and gutsy enough to stand with you against the drunk driving political combine [police, DAs, judges, legislators, probation officers].  Getting the right lawyer can be costly, but not as costly, in the long run, as all of the manifold downsides of a drunk driving conviction.

                  Michael Kennedy holding his "Eddie," the Lifetime Achievement Award
                                           from the California DUI Lawyers' Association

Tuesday, May 3, 2011

Police Dogs and Truth

There was this police dog.  The courts were repeatedly told that he was a wonderful and reliable drug sniffing canine, and he sported a badge.  He had been in loyal and “effective” service for a few years, with a reputation based on cops’ representations spreading far and wide.  We’ll call him “Fido,” which is not his real name, to protect the innocent.
Real Stories of the CHP was filming on a stretch of an interstate highway in a jurisdiction in which I was working, and they got permission to accompany the cops on a highway interdiction drug bust.  The cops needed them for publicity; they needed the cops for ratings; Lady Justice needed honesty, and she was almost disappointed.
The cops started patrolling, in two cars, with cameraman and reporter riding in one, and they eventually pulled over some hapless soul for speeding.  What follows was on the videotape.  The cops surrounded him and started the stock “where are you coming from; where are you going; do you have any guns, money, or drugs in the car,” and so forth that has nothing to do with speeding.  After holding the motorist there for an extended period for a non-speeding grilling [read “prolonged detention”], the cops asked if they could search his car. [Editor’s Note: the answer should ALWAYS be “no.”]  He reluctantly said ok.
They opened the trunk and the handler cop commanded the dutiful Fido to jump in.  Another command was to search, but the well-trained Fido wasn’t quite sure what he was talking about.  The one cop kept banging on the insides of the trunk while the other one talked to the reporter.  Fido ran back and forth frantically, and then hysterically, in response to the banging, finding [“alerting on”] nothing, so they let the poor creature jump out. 
The two cops started talking on camera to the reporter, when one of the cops hoarsely whispered to the other “Get your dog.”  “Huh?  “Get your f---ing dog!”  The camera panned around in the direction of both cops’ gaze, and off in the distant desert there was a speck of Fido.
“Fido, Fido, Come!”  Fido was having too much fun.  The handler cop then barked a command more snarlingly than Fido could ever sound, and he finally trotted back, with the prize in his mouth: Fido had alerted on a dirty baby diaper he happily found in the desert!  “Drop it, Fido!”  Fido could not quite understand why his master was so grouchy.  “DROP IT, FIDO!”  He finally did.
The search roust resumed.  They headed to the passenger compartment, and the handler commanded Fido to get in and search.  Fido ran back and forth, wistfully recalling his baby diaper.  Back, forth; back, forth!  No diaper; no alert on anything else, either.
Apparently sensing televised calamity or embarrassment, the other officer then went to the hood, opened it, and, obviously to distract the cameraman and reporter, who were still looking for televisable fruits in the passenger compartment, cried out “oh, look; there is something here.”  The cameraman and reporter ran up there, leaving the handler and Fido to work their efforts on the passenger compartment.  Of course, there was nothing up in the hood, but then the handler, still back at the passenger door, expostulates: “Look what we found.”  In the one to two minutes the others were looking in the hood!/?
The reporter and cameraman rushed back to the passenger compartment, and now there had appeared, on the floor of the front passenger seat, a stainless steel vacuum canister, with its top off, and packages of suspected cocaine sitting next to it.  The incredulous reporter inquired “Did Fido find that?”  “Yep, he ‘alerted’ on it.”  Well, could we re-enact that for the camera?”  The handler was obviously uncomfortable with the idea, but with the camera and sound rolling, he hesitatingly obliged.
The cops put the suspected drugs back in the canister, screwed on the top, and the handler gave Fido the command to find the stuff.  Fido did not have a clue what he was being told to do.  The cops banged on the canister with their Billy-clubs, and Fido looked quizzically from one to the other.  They then banged and banged and banged to the point that the poor dog damn-near peed himself [and so too the reporter, we suspect], and he then gave a fear-induced quiver, and the handler then said “see, he alerted; let’s see what’s in there.”
They opened the canister, and Zounds!, there were drugs, so the motorist [now being held on a speeding beef for over half an hour] was arrested for trafficking drugs.
Of course, the resulting police report did not read that way.  It related that there was a traffic stop, the trusty Fido walked around the car and immediately “alerted” while the speeding ticket was being processed, which gave the cops probable cause, because of Fido’s proven, court recognized track record[!], and they searched, and found a stash of cocaine.  Bing, bing, bing, bing.  Any court would believe it!  Knowing how things are in that drug enforcement arena, I did not.
After reading that report and talking to my client, I started to subpoena the complete tape and outtakes from the Hollywood producer, but my investigator called them first.  He spoke to the executive producer and said “Sir, Mr. Kennedy is furious and he wants….”  The producer interrupted and respectfully blurted out “he can have whatever he wants; what is it?”  Why so cooperative? You see, that producer had given me grief about a similar outtake show 6 months before, when I was litigating a Fourth Amendment attack in Needles.  My investigator had called and had politely asked for the tape, and the same producer told him to pound sand.  I served a subpoena duces tecum on him, commanding him to appear in Needles, in August, with the tape.  He thought about it and tried to get out of the subpoena by then offering to send the tape to me.  I allowed that he had screwed with the wrong person and that he could now sit in Needles until I was ready for him.  I got that tape, and it showed police dishonesty too, and that case was dismissed.
So this time, when my investigator said “Mr. Kennedy wants….,” there needed not to have been said any more.  Mr. Kennedy got.
The tape was a goldmine of police overreaching and corruption and duplicity, and of false representations about the prowess of a renowned police dog, and it was, of course, 180 degrees off of the substance police report that had triggered the filing against my client.
I told the judge that I would share a secret with him and the DA in chambers, and I strongly hinted what it was, and I said that I wanted a dismissal with a promise of no refiling, but if we went to formal hearing, I would contact 60 Minutes.  The judge said that if the tape came close to what I said it was, I would get my dismissal.  It was not only close, it was utterly congruent with my representation.  The case was, of course, dismissed.  The DA did not file false police report charges on the cops.  Real Stories did not air that segment, but we suspect many they did would have similar outtake revelations: two out of two that I examined did.
While dealing with another matter in the courtroom, I left the tape in the judge’s chambers for 10 minutes, and the only people in there were the judge, the DA, and two cops.  When I returned, the tape was missing.  Everyone feigned ignorance about where it went!  They, of course, honored the dismissal and non-refiling, because they knew I could get another tape.  And Lady Liberty wept, because the shepherds proved themselves really to be the wolves.
And those cops, and judge, and DA were as honorable as many we have now, and Fido was as competent, if not more so.

Sunday, May 1, 2011

DUI Checkpoint Redux

"Three drivers were arrested on suspicion of drunken driving during a sobriety checkpoint in Rancho Mirage this weekend.

"Fourteen other drivers were arrested on suspicion of driving while unlicensed or with a suspended license and 13 cars were impounded during the five-hour checkpoint, the police department reported.

"A total of 2,798 cars passed through the Sobriety/Driver’s License Safety checkpoint, conducted from 8 p.m. Friday to 1 a.m. Saturday with 522 of the cars screened, the police department reported."

Well, there they go again; the DC-funded oppress-o-matic machine, invading the liberty of 522 motorists to catch three drunk drivers!  Heinrich Himmler would, of course, approve of such heavy-handed police-statism, but the Framers would not, nor would any true and right-thinking constitutionalist. The ends do not justify the means, or else we could level all the houses in one square block in every community on the perverse rationalization that there must be some crooks thus killed!  In every community where the grant funds dried up, where the locality had to justify the expenditure of "public safety" [in quotes, because it is not] monies, DUI checkpoints have been scrapped.

Those who weep as the Flag goes by at 4th of July parades should ponder what liberty really means. Or rather, they should study the founding premises of this Republic, and then ponder - right now the subject is quite imponderable by far too many.

As I hold in my hands the coveted Lifetime Achievement Award [the "Eddie"] I won from the 300+ strong California DUI Lawyers Association for my litigation, scholarship, and effectiveness in the realm of drunk driving law [and yes, Your Honor, it is proper to label the area of discussion "drunk driving"!], I think about how many people have had their liberties invaded and destroyed in an area-focused program of law enforcement that has as much to commend it, and which is as scientifically accurate, as the Salem Witch Trials and the investigations leading to them. Seventeen Women and two dogs were executed in Salem on better "evidence" than supports most drunk driving arrests, prosecutions, and convictions.

What have we become when we allow Glen Beck-like paranoia and alarmism and hysteria to invade and capture our national liberty psyche?

"Captain Motion" Michael Kennedy holding his "Eddie" Lifetime Achievement Award for DUI Defense and Scholarship