Government Fraud and Propaganda in Drunk Driving Prosecution

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 this paper.

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 breath device pre-arrest, 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 if you have a .08% or greater BAC while driving, for the same reason.

9.     Presume not that your government is being honest with you about this crime, about the statistics supposedly supporting it, or 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.

 

Make no mistake about it, drunk driving is a political crime.  Its politics derive from the fights that gave rise to the 18^th 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 21^st Amendment repealed the 18^th.  I have written earlier in this blog about the drunk driving exceptions to the Constitution and evidentiary and statutory law, and one glaring example just hit the books, 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.

 

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, so be not 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 stop or be stopped.

The Politics of Drunk Driving; Pick the Right Attorney to Defend You!

One of the biggest failings in constitutional amendment writing occurred when the Framers of the 21^st Amendment, which repealed the utterly idiotic 18^th Amendment’s Prohibition measure, left the question of alcohol, alcohol consumption and sales, and regulations about alcohol up to the States.  The States became free to decide about virtually all issues pertaining to human alcohol ingestion, particularly drunk driving, until, of course, the federal government started playing their games with the tax and spend clause, resulting in the current practice of requiring the States to follow federal mandates about some aspects of drunk driving if they don’t want to lose their lucrative highway funds.  So much for States’ Rights and federalism.

Overarching all of this is the political pressure on the national government and on State governments by self-righteous political lobbying groups, like Mothers Against Drunk Drivers [MADD] and related organizations, who are really lineal descendants of the Women’s Christian Temperance Union that gave us the first, liberty-invading Prohibition.  We are in a period of Neo-Prohibition by the same religio-moralistic fanatics who gave us the 18^th Amendment and who were apoplectic that the 21^st passed. Convincing those sorts of fanatics to lighten up on their hostility to others’ drinking would be like trying to convince an Iranian Ayatollah to become a Methodist!

Drunk driving is the modern day Salem Witch Trials, with not much more accurate science supporting it than in Salem, and that reality is exemplified by a recent state supreme court [lower case, to reflect the “respect” “due”] opinion.  Early on in breath testing for alcohol, it was thought that there is an equilibrium-based exchange in the alveoli of the lungs such that blood alcohol could be translated to breath alcohol by a certain percentage of blood to breath ratios.  That ratio varies from person to person, and from moment to moment in the same person, but an average of a wide range was arrived at for government purposes, and legislation decreed the ratio for drunk driving prosecution.  But it was still based on the hypothesis that what was emitted from the breath was directly related to the alveolar exchange from blood to breath alcohol.

Regulations were written and statutes enacted and measuring devices were constructed based on that alveolar hypothesis, and people were prosecuted for drunk driving based on all of such.  The problem is that the science is flawed. 

But there were no early challenges to the scientific hypothesis.  In this state, for scientific evidence to be admissible, there must be general acceptance among the relevant scientific community that the method and procedures are scientifically sound, or the scientific evidence is inadmissible – it is irrelevant or more prejudicial than probative.  That is loosely called the “Kelly/Frye Rule.”

Kelly/Frye was never satisfied regarding the breath testing hypothesis and the devices being used.  The devices came into use solely because the state and federal regulators [executive branch!] said they were okay.  Uh…, okay to do what?  Well, who knows!/?  But they were used for years, and were based on the alveolar construct, so who is to complain?/!

Along came some real scientists who discovered that the alcohol percentage detected on one’s exhalation [I don’t say breath for a reason] is not primarily from this alveolar exchange/equilibrium, but from alcohol trapped in the mucous membranes of the air passages.  Virtually none of the alcohol %-age comes from alveolar air, virtually none.  That is the science, the bio-chemistry of the matter.  But then what do we do about the regulatory definition of “breath” being this alveolar air?  And what do we do about the regulations that prescribe certain devices as okay because they reputedly read alveolar air?  What do we do about the fact that the %-age numbers in readings from those devices is the sole basis for prosecution, in charges where the percentage is the corpus, if the percentage does not relate to what the regulations say is “breath”?

Well, obviously, since the science of the matter supplies an affirmative defense, or direct contradiction of the government’s evidence, then due process dictates that it be considered by the jury, right?  Uh…, not so fast – this is the political crime of drunk driving, so we are not going to have any slick Ph.Ds. undermining the regulatory and statutory norms of farcical science by inserting actual science into the equation!  What would we do about all of the people convicted of drunk driving over the years if we were to allow a showing that the convictions were based on fraud?  We would have to refund all of the fines and penalty assessments [one of the real reasons for the zeal about DUI prosecutions anyway], and agencies across the fruited plain would have to scrap their expensive breath gimmicks, and government criminalists would be out of work – there would be pandemonium if scientific truth visited, and even, Gulp!, defined drunk driving prosecutions!

So, the state supreme court ruled that the real scientists who have discovered the physiological fact that alcohol %-ages emitting from exhaled breath do not come from alveolar air cannot testify!  Those scholars and scientific researchers and experimenters cannot present the science of the matter to the fact-finders who are being asked to find the facts regarding that same subject.  Government regulators and their corporate and legislative chums have decreed that alveolar air is the source of alcohol %-ages being detected in exhaled air, and that is the end of the issue, so decrees our supreme court! Whoa, due process don’t process well!  Thank God! legislators and regulators did not define gravity out of existence, or else we would all spin off into outer space!

That is. Our supreme court would join the clerical establishment that labeled Galileo a heretic for having the temerity and insight to advance real science over the establishment agenda.  The supreme court has exhibited all the balance and insight practiced by the Inquisition,

Another DUI case recently came down the pike which the supreme court, if it were a court and were supremely devoted to doctrinal purity and contra-governmental neutrality, would have addressed.  The United States Supreme Court [SCOTUS] long ago held, in Schmerber v. California, that blood may not constitutionally be drawn from a person arrested for drunk driving without a warrant [unless exigency other than evanescence of alcohol could be found], and, as a separate matter, without attention to “accepted medical practices,” the example there being a blood draw by a licensed physician in a hospital.  SCOTUS held that blood drawn in violation of either of those standards would violate the Fourth Amendment.  Those standards have to be established by competent and admissible evidence, naturally.

But then, constitutional standards do not deter lobbyists like MADD nor its judicial patrons, who are, of course, merely politicians in black robes.  Along comes a court of appeal opinion that reached down to overturn seven contrary appellate division opinions that had held that a mere policeman simply watching someone do those blood draws [six of which were not in a hospital setting] are not competent witnesses about the reasonability of the blood draws.  Since the system’s MADD masters would not be pleased by preventing seven DUI convictions on pesky Fourth Amendment grounds, the court of appeal published its case, so the sloppy, loose standard would be available statewide.

Several parties and groups petitioned the state supreme court to depublish that case, and to review and reverse it.  Interestingly, the case did not even mention the proper standard of “accepted medical practices,” preferring to mumble about constitutionally reasonable blood draws, since everyone would know that a cop cannot be a competent witness of what the medical profession would deem an acceptable standard; indeed, a non-degreed phlebotomist would not be a competent witness on that, any more than a certified legal process server would be a competent witness on what are “accepted legal practices” in this Republic.

Sadly, the state supreme court turned all parties down on reining in the out-of-control blood draw machinery of the state when it comes to drunk driving, refusing even to hear the vital matter.  No doubt, MADD is glad; the Framers [and necessarily I], however, are sad.  Actually, I am more than sad – I am angry.  Again, power has won in a system where liberty is supposed to be the default position.  This is establishment action of the same measure that sparked the well-deserved Boston Tea Party.

Many have written about the drunk driving exceptions to the Constitution, to evidence doctrines, and to other customary legal standards, including my own well-regarded blog entry [http://capmotion.blogspot.com/2011_02_01_archive.html], and that, if nothing else, illustrates that drunk driving is a political crime and judges are merely politicians in black robes.  But what does that, or any of this, have to do with the question of whom people stopped for drunk driving should retain to help them?  If the sought attorney does not have a sense of pro-liberty mission and an understanding of the outrages visiting the field, then he/she is more likely to do the government’s calendar-clearing bidding than your liberty-enhancing needs.

I am fascinated when I read some of the advertisements by and testimonials about certain attorneys who claim to handle drunk driving cases.  Many who claim to be aggressive are only aggressive against their own clients – they put pressure on their clients to plead guilty to drunk driving, pretending to get them “deals” that would actually be available to any unrepresented person appearing in Court on his/her own.  Those sorts of attorneys are not aggressive against the government and the judiciary, because they do not have the experience or intellectual and spiritual equipment to back a responsible and effective game.  But this is war, and you should hire a warrior, unless you rather commit suicide.  If the latter, save your money; if the former, let your money be well-spent by hiring one of the few true DUI specialists in the area. 

Virtually all DUIs are fightable and winnable, if you have the proper attorney who has armed himself with the appropriate equipment and who has a proper sense of mission about his intended role in the pantheon.  I read the promises made by irresponsible attorneys, and I see the trials they don’t do and the guilty pleas they press their clients to take.

Many attorneys would rather tisk-tisk at their clients for driving with alcohol in their systems [which is not illegal] than to attack the government, which employs fraud and deceit to collect evidence and to obtain convictions, and one errs if he/she hires that sort of attorney.  An attorney is supposed to take the side of the defendant against the oppression of the government, regardless of the nature of that oppression.

Drunk driving is a political crime [so political that one judge won’t even let you use the term “drunk driving,” even though the index to the Vehicle Code, the courts of appeal, billboards, the federal government, and “MADD” employ the term!], and jurors have a duty to wake up to that fact and to repulse it, and defendants need to understand that fact and hire people who can save them from its illicit ravages.  Hire attorneys who will tirelessly and knowledgeably attack government to advance your liberty interests, not ones who will thoughtlessly attack you to plead guilty to make their own days easier.

 

California Courts Exhibit Disdain for SCOTUS When Liberty is Being Protected

It is most ominous and disgusting that the Courts, especially of this State, exhibit utter disdain for United States Supreme Court holdings that give some glimmer of hope and liberty to people accused of crimes.  Courts and prosecutors, ostensibly swearing to uphold the Constitution, sometimes seem to do everything possible to detour the route charted by that Constitution if its terminus is one of individual’s liberty.

I recall clearly when the same United States Supreme Court that gave us the current “how can we get around it” anti-power McNeely opinion previously handed down the patently anti-liberty decisions of United States v. Leon (1984) 468 U.S. 897 and Illinois v. Gates (1983) 462 U.S. 213, Courts were falling all over themselves in a veritable and lamentable stampede to see who could be first to apply them to strip people of liberty.  But when McNeely came down, reminding us that the government needs to back off and to apply the same presumptive warrant rule to drunk drivers as to other folk, many of our Courts are assertively shunning it like the plague, concocting “consent,” “retroactivity,” “only forced blood,” “exclusionary rule doesn’t apply,” etc., devices to avoid elevating liberty over power.  Pretty sad and ominous and Statistic.

We are living in troubled times, when people can no longer believe that the Courts, especially of this State, are the place to come to obtain surcease from tyranny - the Courts are enabling, rather than resisting, tyranny more and more.  You cannot walk into any of the Courts I practice in, where you have to be subjected to the indignities of personal searches to get into the building, and then you have to cool your heels outside the door of the Courtroom until they deign to open the door and grudgingly let you in, and feel protected or respected.  The cops are already comfortably inside, chatting it up with the bailiffs, DAs, public defenders, and sometimes even the judge.  And you are supposed to believe that you will be treated with neutrality and dignity, and that your plight against those same cops being patronized will be resolved in your favor?  Really!/?

But now we have one case that ostensibly levels the battlefield, and the lower Courts of this State do everything in their rationalizing power to deprive you of the prize, a prize whose foundations go back to 1776 [and even to Magna Charta], but which got stolen somewhere along the line.  Far from Runnymede, I am running mad!

Minnesota Massacres McNeely: Tyranny is as Tyranny Does

The United States Supreme Court gave us false hopes when it, by 9-0 voted, granted cert in Minnesota v. Brooks, vacated the anti-defendant judgment, and remanded in light of its recent McNeely opinion. Missouri v. McNeely (2013) 569 U.S. --- [133 S.Ct. 1552.]

McNeely had reiterated the 47 year old rule in Schmerber v. California (1966) 384 U.S. 757 that warrants are presumptively required for blood draws incident to arrest for drunk driving, further providing that more than the argued evanescence of the alcohol in the system is required before exigency can be found to dispense with the warrant requirement.

Always swirling around is the question of statutory “implied consent,” and whether that is true Fourth Amendment consent, which allows a detour around the warrant clause.  In Brooks, an implied consent state [as is McNeely!], the record from below found that the defendant “agreed” to one test and “consented” to the other, urine tests collected prior to McNeely.  When the U.S. Supreme Court granted cert. [which they didn’t have to do] and vacated the judgment and remanded, it was reasonable to believe that they were signaling to Minnesota that neither consent nor non-blood nor “retroactivity” were an appropriate Fourth Amendment issue – that the Supreme Court’s recognition that stabbing someone to suck out his blood, which they had already asserted was of the same measure as residential searches, would not invite this sort of invasion of what appears to be [read “is”!] coerced “consent.”  Of course, the Supreme Court had already held that breath and urine tests were to be gauged the same, for Schmerber analysis, as blood draws, Skinner v. Railway (1989) 489 U.S. 602, 616-618, so there should not be any issue here with urine.  Weirdly, though, there remains confusion on that issue, with many California judges flatly ignoring Skinner and pretending that there is different analysis for breath!  Not so.  I’ll have to repeat that point in bold 3 times in all my pleadings here-on-out, because once seems not to carry the day!  But I digress….

Brooks just came down, and ooops!   http://www.mncourts.gov/opinions/sc/current/OPA111042-1023.pdf   

In their wisdom [!], it is not coerced “consent” to tell a person that if he refuses a test, under the implied consent doctrine, that it is a new and distinct crime!!!  Uh, “you’ll go to jail if you don’t let us suck your blood,” if followed by a sheepish “Ok, you can draw my blood,” is deemed to not be a coerced “consent.”  Uh, Hello!!!  What planet are we on?  Certainly not the one containing the place touting itself the Land of the Free and Home of the Brave, where the Framers announced that the role of the judiciary is to protect individuals from a rapacious government. Federalist 78.

Two important distinctions between the Minnesota standard and ours is that (a) they cannot draw your blood if you refuse [they just put you in jail for the refusal!], and (b) the suspect may consult with counsel before making a decision.  I am sure we are going to find judges here who will seize upon those distinctions and let the Fourth Amendment carry the day for people accused of DUI!

It is interesting that the Court there is not relying on “implied consent,” but instead is relying on the fact that the guy gave actual consent after having the implied consent statute read to him.  Huh???

All justices on the Minnesota Court joined in that bizarre and incomprehensible liberty erosion except one [aside from an abstaining one], a concurring justice who felt that the Herring Heresy case of Davis v. United States (2011) --- U.S. --- [131 S.Ct. 2419] was the vehicle for saving the government’s case instead of pretending that there was true consent.  He correctly recognizes that threatening to throw one in jail if he does not “consent” is coerced, but he bizarrely believes that McNeely is new law, despite that it merely reiterates Schmerber’s pro-warrant rule, so he would hold that the exclusionary rule does not apply.  [We will explain elsewhere the facts and evils of the Herring Heresy.]

Lunatics and asylum caretakers, etc., come to mind.  But this holding further reinforces the notion that drunk driving is a political crime, enabled by purposeful sorts, from neo-prohibitionist lobbyists to political slug legislators to power hungry executives to judges who know not [or care not] their intended role in this Republic.

Brooks is to constitutional consent law what Dred Scott was to human dignity law, and the justices in both should hang their heads in shame – but they do not have consciences that invite a sense of shame. This is juristic terrorism at its worst.

One of the worst things about what is going on in drunk driving law, and in law in general, is that people have a diminishing belief that they can come into the courthouse and obtain relief from oppression, and the possibility of an appeals remedy from a negative trial court finding is all but a pipe dream regarding hopes and aspirations from a time long gone [if it ever really was here].

Cuevas Needs to be Depublished: Lawlessness in the Law Courts is Anathema

This is the depub letter I penned for the California DUI Lawyers Association regarding the odious People v. Cuevas case, a post-McNeely opinion that did not dare mention McNeely because the Court of Appeal had a guilty conscience about the long-standing disregard of the U.S. Supreme Court's standards for drawing blood in DUI arrest settings.  There is no greater, or more significant, lawlessness in our society than that practiced regularly and arrogantly by the Courts of this State.
==========================================================================

THE HONORABLE CHIEF JUSTICE

AND THE HONORABLE ASSOCIATE JUSTICES

The Supreme Court of the State of California

350 McAllister Street

San Francisco, CA  94102

 

RE:    Letter Brief Requesting Depublication, of People v. Cuevas (2013) 218 Cal.App.4^th 1278 [A138062], from the Court of Appeal, First District, Division One.

 

To the Honorable Court:

 

The California DUI Lawyers Association [CDLA] respectfully prays that this Honorable Court depublish the above-referenced case on the grounds delineated below.  CDLA is a professional association [non-profit corporation] of over 400 California lawyers whose practice is largely or exclusively devoted to the constitutional defense of people accused of driving under the influence of alcohol.  The organization puts on MCLE program devoted to that subject matter and sponsors seminars and other training opportunities for attorneys practicing in the field.  We have an internet list server whereby we communicate among ourselves about various subjects and developments in DUI law and practice, and we are devoted to educating the public, the judiciary, the legislature, and each other about various matters associated with the often misunderstood area of DUI law, the political pressures about which from various lobbying and propaganda organizations tends to result in those accused of DUI being treated rather differently and more harshly in and by the criminal justice system than those accused of other crimes.  It is to help remedy that disparate treatment that we implore this Honorable Court to depublish the subject case. (Rule 8.1125, California Rules of Court [CRC].)

We have attached the official version of the case issued by the Court of Appeal, which first issued it July 31, 2013, but which then published it on August 15, 2013.  (Citations herein shall be to that attached official opinion, denoted as “Opinion.”)  We are thereby timely in this pleading.

Before we troop too far into the issues, it is to be recalled that even though the touchstone for Fourth Amendment analysis is “reasonableness” judged by the totality of the circumstances [the latter having been given birth only in the 1970’s] (Ohio v. Robinette (1996) 519 U.S. 33, 39), the critical definer of the meaning of that reasonableness is sometimes less attended to:  “Thus the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ ‘The burden is on those seeking the exemption to show the need for it.’ In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some.  But the values were those of the authors of our fundamental constitutional concepts.  In times not altogether unlike our own they won -- by legal and constitutional means in England, and by revolution on this continent -- a right of personal security against arbitrary intrusions by official power.  If times have changed, reducing everyman's scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.” (Coolidge v. New Hampshire (1971) 403 U.S. 443, 454-455 [internal cites and quotes omitted].)

The High Court did not hold that the per se unreasonableness of warrantless liberty invasions does not apply to drunk driving arrests and evidence collections, nor, as some would propose, is disassociated from the quality of a blood draw for drunk driving evidence collections.  You see, when one comes at you with a needle to stab you to draw your blood, without established constitutional propriety, that is an assault, a battery, and even an ADW[1]. (People v. Lema (1987) 188 Cal.App.3d 1541, 1545, In re Jose R. (1982) 137 Cal.App.3d 269, 275-276.)

So, the party who seeks to warrantlessly stab a person to collect evidence must justify the action.

In Cuevas, the Court of Appeal ordered the transfer of seven appellate division cases from the Superior Court of Alameda County to itself.  The appellate division cases had all ruled in favor of drunk driving defendants that their respective warrantless blood draws were unreasonable under Schmerber v. California (1966) 384 U.S. 757 [Schmerber].  More correctly, however, those cases had found that the government did not carry their burden that the blood draws were reasonable – the presumption is that they are not. (See supra.)

There were seven drunk driving cases proceeding through the system, and the defendants brought Penal Code section 1538.5 motions against the warrantless blood draws, incident to their arrest for drunk driving. (Opinion, page 2.)

At the hearings, the people who drew the blood did not testify; the only testimony on the issue of the nature of the blood draws were the officers who were present for the events; none of the officers were themselves qualified to draw blood [apparently]. (Opinion, page 3.)  On 2-1 decisions on all seven cases, the appellate division panels found that the government did not satisfy their burden that the blood was drawn in a constitutionally reasonable manner. (Opinion, page 3.)

The Court of Appeal affirmatively reached down and brought those pro-defendant cases up to itself and reversed all seven holdings, siding with the dissent in all opinions. (Opinion, pages 3, 8-9.)

Cuevas was issued in the wake of Missouri v. McNeely (2013) 569 U.S. --- [133 S.Ct. 1552], a case which is causing juristic dyspepsia in some quarters, because it puts drunk driving defendants back where they should always have been regarding the collection of evidence to be used against them in criminal trials.  McNeely reminds all that the Fourth Amendment is as applicable to drunk driving defendants as to any other – the United States Supreme Court refuses to embrace the locally growing drunk driving exception to the Constitution.

It is most telling that Cuevas is the one McNeely case that does not mention McNeely.  Why do you think that is?  Because the renegade “medically approved manner” language manufactured by the California Courts (Cuevas, supra at page 1285) is not the standard of the United States Supreme Court.[2]  And as we have noted many times in many quarters, what the U.S. Supreme Court construes to be required by the U.S. Constitution is the supreme law of the land, regardless of what other authorities propose [as the contrary “Jim Crow” authorities of the old South found out]. (Cooper v. Aaron (1958) 358 U.S. 1, 18, citing and construing Art. VI, para 2, The United States Constitution.)

The standard required by the U.S. Supreme Court is clear [although purposely muddied by some].  That is, writing on the clean slate in 1966 about what must be done to detour the Warrant Clause to warrantlessly seize one’s blood, the U.S. Supreme Court clearly announced, inter alia:

…[T]he record shows that the test was performed in a reasonable manner.  Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices.  We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment -- for example, if it were administered by police in the privacy of the stationhouse.  To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record.  The integrity of an individual’s person is a cherished value of our society.  That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. Schmerber v. California (1966) 384 U.S. 757, 771-772 [emphases added].

 

In McNeely, the Supreme Court somewhat naively presumed the States were heeding its rule about having these things done at a hospital according to “accepted medical practices” by real medical personnel. (McNeely supra @ Id.,133 S.Ct., 1559, 1560, 1561, 1563, 1565; then 1572, 1574 [Roberts, CJ, concurring and dissenting]; then 1577, 1578 [Thomas, J, dissenting].)[3] 

 

No one in the Supreme Court ever suggested, nor even hinted, that jailhouse blood draws by police contractors complies with Schmerber, nor that other than “accepted medical practices” is the standard, and there is much that suggests quite otherwise. (See, e.g., Schmerber, supra @771-772.)  Indeed, I think the High Court would be outraged to learn that standards other than what they have decreed to be required under the Fourth Amendment have been practiced across the Fruited Plain, or that the sovereign’s representative is suggesting that the California Courts, which sit under the United States Constitution [Article VI, para. 2, The United States Constitution], should embrace a constitutional standard different from, and less than, what the Supreme Court has decreed. 

 

The U.S. Supreme Court recently holds that “[i]n finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.” (McNeely, 133 S.Ct., 1560.)  Those specific facts were a blood draw by a physician in a hospital.

 

What evidence exists that the blood draws here were according to any “accepted medical practices”[4]?  Accepted by whom?  There was no evidence whatsoever on the subject at any of the hearings in the appellate division cases, other than policemen recounting what they inexpertly saw happen.  Maybe a policeman can do a lookie-loo about how something is being drawn and testify that he has seen it be done that way before, but that does not satisfy the expert opinion needed for “accepted medical practices.”  It is not all that clear that even a “certified” phlebotomist who has not been given a license to “practice” medicine is an expert on what “medical practices” are.  Can a non-lawyer but licensed legal process server render an opinion of what “accepted legal practices” are, if he cannot “practice” law?  Can you ever be an expert on what is a “practice” if you are not authorized to do that practice?  Do mere and glorified lookie-loos become the testimonial conduits of professional expertise merely because they see what they think is the same thing they saw before?

 

Recall that the real question here is whether what occurred in drawing blood is according to “accepted medical practices.” (Schmerber, supra.)  That is, by its own language, an area of professional expertise, which would axiomatically be governed by Evidence Code section 720.  What evidence is there in any of the cases that someone with “special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on [accepted medical practices]….” (Evidence Code section 720(a)) testified or otherwise supplied the requisite information?  A conduit is no better than the quality of what it is conducting, and there was no input about how accepted medical practices had transmogrified from the days of Schmerber to allow blood collections by people and in places that the High Court itself strongly suggested were constitutionally problematic.

 

The Cuevas Court finds surcease in People v. Sugarman (2002) 96 Cal.App.4^th 210, where the Court held that an officer saying he saw a nurse [sic!] draw the blood in a hospital [sic!] sufficed regarding the “medically approved manner” issue. (Cuevas, Opinion, page 7, citing Sugarman, supra at page 214.)  “Nurse” and “hospital” veers close to the Schmerber standard (although “medically approved manner” does not), but that is a far and dispositive cry from police contractor in jail settings!

 

As this Honorable Court held in another setting, that of whether MDMA is a controlled substance as a matter of expert fact, the Court makes it clear that an officer testifying to what he believes is the evidentiary standard, or a juristic analysis of what has been found to be true and sufficient in other cases, is not sufficient to carry the expert burden about chemical composition. (People v. Davis (2013) 54 Cal.4^th 353, 361.) So, we care not what cases suggest about cops watching things and thinking a certain “manner” has been satisfied – we follow the U.S. Supreme Court [as we all are supposed to do] and question whether the “practice” of medicine has been expertly satisfied.  And the answer to that question is clearly “no.”  The fact that something was “held” to be such and so in one case does not mean that it is established to be such absent evidence in another case.  In these seven cases, there was no evidence whatsoever of accepted medical practices.  All that is in evidence in all of those cases are policemen effectively saying “Well, it looked okay to me.”  [If the officers were “expert” enough to assess and review others’ blood draws, why didn’t they draw it themselves?  They are not qualified to do so.  Therefore, how do they become qualified to judge performance that they cannot perform?]

 

Moreover, let us not put too much credence in what the constabulary says in such settings.  The court of appeal has reminded us that police officers are not to be given presumptive reliability in their utterances about Fourth Amendment matters, because they have a stake in the outcomes of these cases. People v. Dickerson (1969) 273 Cal.App.2d 645, 650, and fn. 4.[5]

 

This was a group of other than a hospital blood draws, and was by police contractors[6], and hence we have the very opposite of the clear rule: “We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment -- for example, if it were administered by police in the privacy of the stationhouse.  To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.” (Schmerber, supra at pages 771-772 [emphasis added].)  A police contractor is police personnel, by agency standards presumably understood by all!  We have here the talismanic “serious questions”!  And they were not answered by the evidence in the cases below.

 

The Court tried to make much of the lack of apparent pain or discomfort by the victims of this warrantless evidence collection (Opinion, page 3), but that is not a standard that defines Fourth Amendment protections [there might not be any of the such in warrantless residential invasions either], and the High Court was concerned, inter multa alia, with the risk of infection from such procedures in non-medical facilities by non-medical personnel. (Schmerber, supra at page 772.)  The eventual depredations from germs do not appear instantly, nor necessarily painfully.

 

The Court then tries to downplay the significance of stabbing people to obtain their blood by selectively excerpting from Schmerber that “‘Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol.  [Citation.]  Such tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.’” (Opinion, page 5, quoting Schmerber, supra at page 771.)  The Court fails to note that the context of that “commonplace” and “no risk,” etc., was a blood draw by a physician in a hospital!  The preface to that discussion is “Given these special facts, we conclude….” (Schmerber, supra at page 771.)  “[T]hese special facts” are a blood draw in a hospital by a physician!!!! (Id.)

 

The People must justify their liberty infringements, because it has long been understood that “[p]ower is a heady thing; and history shows that the police acting on their own cannot be trusted.  And so the Constitution requires a[n] [independent!] magistrate to pass on the desires of the police before they violate [one’s] privacy....” (McDonald v. United States (1948) 335 U.S. 451, 456.)  And to justify their warrantless liberty infringements, the People’s burden has to be carried, of course, with “evidence” (Penal Code section 1538.5(c)), which has the same meaning for suppression motions as for trials. Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927, cited app. in People v. Johnson (2006) 38 Cal.4^th 717, 732-733.)

So, the phraseology of the issue here by the Court below has placed the burden on the wrong side.  The question is not whether the defendant proved that the warrantless blood draw in places and by people that the U.S. Supreme Court clearly decreed were insufficient for Fourth Amendment standards was unreasonable (Opinion, page 4), but instead whether the government proved that it was reasonable, and it did not.

We care not what various California cases have held in watering down the blood draw quality issue, because “binding precedent” on United States Constitution questions is that which has been held by the United States Supreme Court. (Cooper, supra at page.)[7]  The U.S. Supreme Court’s construction of the United States Constitution could not be nullified either “openly and directly by state legislators or state executive or judicial officers [or] indirectly by them through evasive schemes….” (Cooper, supra at page 17.)  There is no hidden parenthetical that reads “except for drunk driving evidence,” nor “unless the State Courts thumb their noses at us long enough.”

And that binding precedent regarding accepted medical practices, to wit hospital draws by real medical personnel, is the 47 year old Schmerber (supra) case.

Yes, yes, people are free personally to disagree with the United States Supreme Court’s construction of the Constitution: “The duty to abstain from resistance to ‘the supreme Law of the Land,’ U.S.Const., Art. VI, ¶ 2, as declared by the organ of our Government for ascertaining it, does not require immediate approval of it, nor does it deny the right of dissent.  Criticism need not be stilled.  [But] Active obstruction or defiance is barred.  Our kind of society cannot endure if the controlling authority of the Law as derived from the Constitution is not to be the tribunal specially charged with the duty of ascertaining and declaring what is ‘the supreme Law of the Land.’” (Cooper, supra at page 24 [Frankfurter, J. concurring] [emphasis added].)

It is ironic that some cite Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450 to support their anti-defendant points herein, but they overlook the real holding of that case: courts of inferior jurisdiction exceed their jurisdiction when they purport to disagree with Courts of superior jurisdiction. (Id., at page 455.)  The United States Supreme Court is of superior jurisdiction to California appeals and Supreme Courts [and all other Courts] on questions of U.S. Constitutional law, so our State Courts exceeded their jurisdiction in disagreeing with the U.S. Supreme Court and were thereby always without power to disagree with the U.S. Supreme Court on the Schmerber rules. 

And government actions that are without jurisdiction do not eventually acquire jurisdiction by their repeated illegal actions.

The fact that the anti-constitutional rule has had a long pedigree in this State proves only that the California Courts have insufficient respect for the U.S. Supreme Court.  But perverse pedigree certainly does not validate contra-constitutional doctrines, nor generate a reasonable expectation that the constabulary can ignore the United States Supreme Court.  State police used to, and State Judges still have to, swear to uphold and defend the United States Constitution.  Upholding it does not mean merely carrying a pocket copy of it around to pull out at cocktail parties and Rotary lectures!

We respectfully pray that this Honorable Court depublish the Cuevas opinion.  Not only was the propriety of the appellate division’s seven opinions clearly supportable and consistent with established constitutional law (Opinion, page 4, citing People v. Meyer (2010) 186 Cal.App.4^th 1279, 1282), hence making the affirmative step of transferring he cases to it inappropriate, but also the standards for publication[8] cannot be deemed to carry the sole day when the ruling to be published is itself doctrinally unsound.  That is, for instance, if a Court of Appeal issued an opinion that reversed appellate division cases that had properly held that “separate but equal in public schooling” is illegal and unconstitutional, apart from the question of granting review, a litigant could properly demand that the Court of Appeal opinion not be published, notwithstanding its facial compliance with, say, Rules 8.1105(c)(1), (3), (4), (6), (7), and (8).  The patent unconstitutionality of the holding[9] should be able to be argued to overcome publication.  Same thing here.  This opinion should be depublished because it is erroneous constitutional law, an issue which will be taken up otherwise by others in various review petitions, and litigants throughout the State should not be confused about the state of clear constitutional law on things involving liberty interests.

It should be recalled [although it is too often not understood at all] that law is simply a prediction of what those in power ultimately will do with a specific set of facts. (K.N. Llewellyn, The Bramble Bush 13-14 [Oceana, 4th printing 1973].)  We should not be confusing people that the watered down proof for Fourth Amendment standards invited by Cuevas is what is to be the prediction for this area of endeavor in this State.

With all due respect, please depublish People v. Cuevas (2013) 218 Cal.App.4^th 1278 [A138062].

 
Respectfully submitted,
 
MICHAEL J. KENNEDY
Attorney at Law
For California DUI Lawyers Association

---

[1] Assault with a deadly weapon.  Indeed, the difference between mere surgery gone awry and criminal mayhem is defined largely by whether the person piercing the skin is licensed to do what he or she is doing. (People v. Pirnia (2003) 113 Cal.App.4^th 120, 127.)  Some of our judges are persnickety about labeling this sort of conduct “stabbing,” but it is. (See, e.g., Webster’s Ninth New Collegiate Dictionary 1145 [Merriam-Webster, 1989] [“stab…. 1: to…pierce by the thrust of a pointed weapon….”].)

[2] A “manner” connotes how something is done by whomever; a “practice” connotes licensed professionalism in one’s overall activity.

[3]           “Hospital” or “medical facility” or the are exclusively used throughout, many, many times, regarding where blood draws were thought by all of the Justices to be administered in these cases.   We suspect they never guessed that States were ignoring their clear command on that in Schmerber, but that is why drunk driving is a political crime – politics rather than law drives the conclusions and policies. 

Thoughtful analysts well-understand that there are drunk driving exceptions to most constitutional and customary law standards. (See http://capmotion.blogspot.com/2011/02/drunk-driving-exceptions-to.html)

We hope McNeely marks a reversal of that odious policy.  This is the reason that the post-McNeely opinion in Cuevas did not mention McNeely: they are trying to pull a fast one regarding and around what the 47 year old law is.

[4] “Medically approved manner,” the purposeful watering down of the standard by our Courts, appears nowhere in Schmerber nor in McNeely.

[5] As that Court cogently noted: “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.’ and 3. that a police officer who has conducted an illegal search and seizure may be subject to criminal, civil and disciplinary sanctions.” Id., @650, fn. 4 [internal cites omitted].  I hope this Court does not ignore that.

[6] Except in one of the cases, where the draw was by some unidentified person in a hospital. (Opinion, pages 2-3 and fn. 2.)

[7]           “[T]he highest honor of sovereignty is untarnished faith.  And certainly no faith could be more deliberately and solemnly pledged than that which every State has plighted to the other States to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes.  In the emphatic language of the pledge required, it is to support this Constitution.  And no power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution….” (Ableman v. Booth (1858) 62 U.S. 506, 525.)

….

 

“We are sensible that we have extended the examination of these decisions beyond the limits required by any intrinsic difficulty in the questions. But the decisions in question were made by the supreme judicial tribunal of the State; and when a court so elevated in its position has pronounced a judgment which, if it could be maintained, would subvert the very foundations of this Government, it seemed to be the duty of this court, when exercising its appellate power, to show plainly the grave errors into which the State court has fallen, and the consequences to which they would inevitably lead.” (Id.)

[8] Rule 8.1105(c), CRC.

[9] Brown v. Board of Education (1954) 347 U.S. 483, 495.