Tuesday, June 16, 2015

Politics of Drunk Driving Litigation

          Some people don’t quite get it when I correctly observe that drunk driving in this state [and really in all states, thanks to the federalism busting intrusion into the substance by the federal government] is a political crime.  Maybe they don't want to get it.  What is really going on is that political neo-prohibition groups like MADD and SADD and others have put pressure on the political branches [and the judiciary is the most political of all, despite, and because of, its protestations to the contrary] to become increasingly harsh about drunk driving conviction penalties.  And instead of decrying the pressure, the various branches of government largely genuflect to the improper and considerable pressure by the religio-moralist groups who remain distressed that the 21st Amendment passed.
We have written and spoken about the horrid Vangelder opinion by our supreme court [I really can’t capitalize the court, which would be awarding it more credit than it is due], wherein the science of the matter there boiled down essentially to a debate between Pope Urban, VII, and Galileo, and the supreme court decided to side with mythology and against science, because its MADD masters demanded as much.  Now we have a new judicial outrage, Coffey v. Shiomoto (2015) 60 Cal.4th 1198.
The court defines the issue as: “In an administrative hearing to review the suspension, plaintiff‘s expert witness opined that her BAC was rising at the time of the chemical tests, suggesting her BAC was below the 0.08 percent threshold at the time plaintiff was driving. Both the Department of Motor Vehicles (DMV) hearing officer and the trial court discounted the expert‘s testimony in part by relying on arrest reports, which described the physical manifestations of plaintiff‘s intoxication, such as her general appearance, erratic driving, poor performance on field sobriety tests, and the strong odor of alcohol she projected.”
“We decide in this case whether the trial court erred by considering, in addition to the results of breath and blood tests, other circumstantial evidence of intoxication to conclude by a preponderance of the evidence that plaintiff drove with a BAC at or above 0.08 percent. As we explain, we conclude the trial court did not err.”
The translation of that is even though a scientist has calculated what the BAC was at the time of driving, the government can disregard that calculation and rely on things like FSTs and odor of alcohol to decide what the BAC was, close enough for government work!  Huh?  The court decided to see if they could write something even more outlandish than they penned in Vangelder, and they succeeded.  The problem is that they used some doctrines that anyone knowledgeable about this subject would realize are utterly invalid.  Oh well, what the heck: it is drunk driving, after all, the modern day equivalent of what was occurring in 1692 in Salem, Massachusetts!
First off, to disregard the science of looking at four increasing BACs now and scientifically calculating backwards to the point of driving, they decide to look at driving and odor of alcoholic beverage and FSTs.
The problem is that there is no peer-reviewed scientific test that has found a causal connection between FSTs and BAC [which is why any such connection is not admitted in this state!] nor between such and impairment by alcohol [which is not the issue at an admin per se hearing].  There is no peer-reviewed science connecting odor of an alcoholic beverage to BAC [especially since the odor detected is of the cogenitors mixed with the alcohol and not the alcohol.  And there is no peer-reviewed science connecting driving pattern with BAC.  Yes, yes, there are some non-peer-reviewed projects funded by the executive, its National Highway Traffic Safety Administration, carried out by a couple of psychologists, not relevant nor neutral scientists regarding the science of physiological and neurological impairment, but their work is voodoo conclusionism, not science.  So to put that on the same balance beam as real science is adversarial Vangelderism gone mad.  Or MADD!
How did things balance out that the DMV hearing [where hearing officers are expressly permitted not to be neutral; they are institutionally congruent with the party taking the anti-liberty action]? 
“At the ensuing administrative hearing, the DMV hearing officer had before her the ―Officer‘s Sworn Statement form, Officer White‘s arrest report and the supplemental reports of Sergeant Martin and Officer White. In addition to considering these documents, the hearing officer heard telephonic testimony from Jay Williams, a forensic toxicologist with extensive experience, who testified for plaintiff. Williams noted the result of plaintiff‘s first breath test was 0.08percent, the second test three minutes later was 0.09 percent, and her blood sample taken about 20 minutes later tested at 0.095 and 0.096 percent. According to Williams, these results suggested the alcohol level in plaintiff‘s body was rising at the time of the tests and, given the totality of the circumstances, were consistent with plaintiff‘s BAC being below 0.08 percent at 1:32 a.m. when she was first pulled over by Sergeant Martin.
“The DMV hearing officer rejected Williams‘s testimony regarding a rising BAC, explaining in her ruling that the witness‘s two conclusions—first, that plaintiff‘s BAC was rising at the time she was pulled over, and second, that It may accordingly be deduced that her BAC was below 0.08 percent when she was driving—were not supported by reliable evidence, were―too speculative to support the contention, and were―based on a subjective interpretation of the evidence.”  Yeah, .08, .09, .095, .096 are not rising in DUI new math!
So, we have a scientist testifying live, subject to cross-examination by the hearing officer, about what the mathematical/scientific calculation was versus a cop’s hearsay report of symptomology, and the symptomology carries to day to define the numbers???  Was Alice of Wonderland fame the hearing officer?
Playing with a stacked deck is worse than not playing at all, but the judiciary is supposed to protect us from rapacious and thoughtless government, at least when litigation is brought to bear against the outrage.
Then the court discusses the “rebuttable presumption” of Vehicle Code section 23152(b), the problem being that CALCRIM has dropped reference to that “presumption,” because caselaw provides that the proper word/term/concept is “permissive inference”: “presumption” is not supposed to be used for the concept being addressed there!  Does that presage that the supreme court will reverse itself if the matter comes before it again and will allow “presumption” to be employed there, or do they simply not understand their own caselaw?
The court says that the presumption was rebutted here, but their repeated employment of a previously disallowed term is most troubling.
The court finds pivotally compelling an old Arizona case that announced that BAC could be ascertained from circumstantial evidence surrounding the driving and the individual, while agreeing that such is not really authoritative here.  That is interesting that our supreme court finds sufficiently persuasive a 1983 Arizona case to deprive this motorist of liberty, but our state courts do not find persuasive a much, much later Arizona case that holds self-evidently that “implied consent” is not Fourth Amendment consent for warrantless DUI blood draws!  It can’t be that they are result-oriented in what foreign cases they will rely on, can it?  Naaahh!
If a judge or DA had to defend against losing their robes or Bar card based on the quality of the result-oriented, pseudo-science evidence introduced to strip this woman of her liberty right to drive, they would be shrieking their proper outrages to the rafters.  But because this is drunk driving, who the Hell cares about litigational precision!/?  The supreme court should hang its head in shame.  But it has none.


  1. MADD has put great pressure to harshen drunk driving penalties. If you are facing a DUI, have an honest discussion with your DUI attorney about fees in advance. Also make sure that lawyer has never been reprimanded, suspended, or dis-barred. My brother is system admin at a Los Angeles DUI lawyer office and he often tells me how DUI cases if not fought properly can destroy your life.

  2. I note that website pops up Jon Artz, and I agree that he knows his stuff and is one of the very best, and his sage advice should be followed. The real problem in all of this is the mailers people arrested receive from lawyers who promise the world for minimal fees and then con their client into pleading guilty. There are things to fight in DUI cases, and no low-baller is going to do it - nor even know how. MADD is not unlike the anti-witch zealots in 1691 Salem, Massachusetts, and it is disappointing that judges, legislators, and prosecutors fall under their pressures to demonize people who have alcohol in their system. There are true drunk drivers out there, but the overwhelming majority are not impaired but get stopped due to something that is not a sign of impaired driving [and speeding is not!].

  3. I was so glad that someone told me to stop being the hero and get yourself an attorney. I wanted to do the right thing and take my punishment, but luckily I got an attorney who explained to me their really is no honor in paying a heavier price than someone who did the same thing but got off with a lighter sentence.

    Leticia Holt @ KHunter Law


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