Wednesday, December 25, 2013

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 18th Amendment to the Constitution and Prohibition, and the political measures being taken now to demonize those arrested for drunk driving are in service to the distress that the prohibitionists experienced when the 21st Amendment repealed the 18th.  I have written 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.

Tuesday, December 3, 2013

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 21st Amendment, which repealed the utterly idiotic 18th 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 18th Amendment and who were apoplectic that the 21st 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 [], 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.