One of the biggest failings in constitutional amendment writing occurred when the Framers of the 21st Amendment, which repealed the utterly idiotic 18th Amendment’s Prohibition measure, left the question of alcohol, alcohol consumption and sales, and regulations about alcohol up to the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 [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.