Yes, Virginia, There are Differences Among Attorneys

It is a mistake for those whose liberty is at risk to assume that all lawyers are the same, can provide the same quality of assistance, have the same scholarship undergirding their work, and are similarly motivated to protect people from an increasingly rapacious, pernicious, and insensitive government.

The redoubtable Justice Gardner once penned sage insight regarding some people’s distrust of the public defender over less-than-mediocre private lawyers, and those insights similarly apply to the comparative strengths of private attorneys, that is that judges can “only ... watch in silent horror as the defendant's family, having hocked the family jewels, hire a lawyer for him, sometimes a marginal misfit who is allowed to represent him only because of some ghastly mistake on the part of the Bar Examiners….”

Fighting things competently, aggressively, and effectively, I will generally not speak first about what I need when there is a group of lawyers meeting with the judge and prosecutors in chambers, because I don’t want others to ride on my coattails about what I demand.  So, the other day, I was in chambers, watching a gaggle of lawyers lined up in front of the judge like supplicants at the altar of Rehnquist-mania, milquetoastingly pleading with the judge to give their clients 6 or 10 days jail as a condition of probation for first time drunk diving.  The Legislature does not require any custody at all for those given probation for first time drunk driving, and these clowns had taken thousands of dollars to beg for 6-10 days, which defendants could get themselves if they represented themselves at arraignment!

But the attorneys went into chambers to con their clients into believing they had accomplished something for them to justify their fees.

At the end of that disgraceful spectacle, when I was alone with only a DA in chambers with the judge, I inquired “what the hell did I just see?”  The judge smiled and said “Mike, it’s not up to me to tell lawyers how to represent their clients.”  It was shameful and disgraceful, and that sort of stuff explains why people have little respect for lawyers.

So, if you or a loved one is in trouble, don’t presume that everyone with a Bar card and business cards will supply the same service.  Make sure the person you are hiring is not “a marginal misfit who is allowed to represent him only because of some ghastly mistake on the part of the Bar Examiners.” Does your lawyer merely attend seminars, or is he invited to lecture at seminars as I am; does he merely belong to the State Bar, or is he invited to lecture at the State Bar as I am; does he spend his free time playing golf, or does he spend it studying and reading law as I do; does he look forward to retirement, or is he committed to practicing his liberty-protecting craft until the Constitution is restored such as I am; does he consider the practice of law merely a remunerative job, or is it to him/her a calling and mission, as it is to me; does he use canned and stock pleadings prepared by others, or does he research and write everything he presents to courts, as I do?

Attorneys are not fungible.

Don’t get suckered by fancy clothes and flashy cars and opulent offices; they are often a preface to shoddy legal work and shaky commitments.  I have seen fancy, expensive lawyers advise their clients that certain things cannot be won, cannot be made better, and cannot be accomplished, while standing in unrealized earshot of me after I have obtained evidence suppressions and/or dismissals on the same sorts of matters.  I have accordingly been employed to testify in hearings about what the reasonably competent attorney should have accomplished in matters where they sold their clients down the river, because I am recognized to know whereof I speak on attorney competence.

Some lawyers would rather be chums with judges and prosecutors than to stand with their clients against the gusts of faction that are trying to blow them over the edge and into the abyss.  Some lawyers have the attitude [which they will occasionally confess to other lawyers and judges] that they will interact with the client only on one case, whereas they will be dealing with prosecutors and judges over and over and over again, so they need to keep the latter groups happy at the expense of the former.

The legal profession touts itself as being a learned profession, but learnedness is a diminishing commodity where caprice dethrones the Constitution all too regularly. I was assailed by a judge just the other day who scolded me about giving a post-hearing argument in writing, mainly because it would require the judge to read and study, and it would embarrass his government lawyer chum into being less able to carry their burden.  I shrink not from judicial scoldings, because my duty is to my client, and I abhor, and do not fear, bullies, whether they are sporting badges or robes.

Many lawyers will take your money but will then put pressure on you to back down from the fight that the Constitution and Framers enable and expect you to make.  Lawyers like me, a dwindling breed, put pressure on government to back down, because, unchecked, government will consume the whole and eviscerate liberty.

So, if you or a loved one is in trouble, don’t be so naïve as to believe that all lawyers are the same in their zeal and effectiveness to protect your liberty interests.  And that means that once you have decided on the lawyer you want, don’t dial another one merely because you have not received a phone call back from the one of your choice as quickly as you would like.  The Revolution was not won in a day; be patient in waiting for help from one of the few who lives and breathes the spirit of that Revolution as part of his very being.

Thoughts about Drunk Driving, and Government Fraud, and Jurors' Duties

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 newspapers and the broadcast media.

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

9.    Presume not that your government is being honest with you about this crime, about the statistics supposedly supporting it, nor 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.  If “I am not a crook” was laughable and demonstrably false when uttered by the chief executive of the Republic, you would be foolish to give it more credence if uttered by lesser executives.  The executive branch has an agenda in these things [as in all things], and serving your interests, or those of your families, is not among them.

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 elsewhere about the drunk driving exceptions to the Constitution, and to evidentiary and statutory law, and one glaring example hit the books not too long ago, 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.  Our Supreme Court embraced Pope Urban VIII and opposed Galileo!

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, and you should not be 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 be stopped.  Why do you think we see signs posted on the streets and highways exhorting people to call 9-1-1 if they know of a drunk driver?  That is to prejudice the potential jury pool.  How would you know if you are in the presence of a drunk driver?  You would not know by observing driving patterns of those around you.  There are sober people who drive horribly and impaired people who drive exceedingly well.  You don’t see signs that suggest that you should call 9-1-1 to report murderers, rapists, child molesters, burglars, thieves, do you?  That is because the aim of the signs is not to have the populace apprehend drunk drivers or others suspected of crimes, but rather for the populace that may later sit on juries to become prejudiced against drunk drivers.

The Framers intended juries of citizens drawn from the community to view government’s evidence against people’s liberty with skepticism, the standard for which requires that people may not be found guilty without a quantum of evidence adding up to beyond a reasonable doubt.  And even if that quantum is present, a jury does not have to find a person guilty, and a conscientious one frequently will not.  Sadly, though, despite the Framers’ understanding of the dangers of government power, juries increasingly lean in the direction of government in political crimes such as drunk driving, revealing that the propaganda has worked.  Jurors should not become pawns in this game of chess invading people’s liberties: they were intended to be queens and knights.  And every time a juror votes against liberty because he/she presumes the government is telling the truth in these political crimes, he or she thereby spits on the blood shed by the Founding generation to preserve our liberties.

Sanctuary Cities - Misunderstandings and Legality

There is a wide-spread and gross misunderstanding of the meaning and operation of “sanctuary city” when it comes to discussions of cities cooperating or not with federal immigration policies.  Among those confused about the matter are sadly included many presidential candidates.

When we talk of sanctuary cities in the context of the current debate, the jurisdictions that fall into that vague label are not commanding their employees to sneak around back alleys in the dark of night and to furtively hide out people from pursuing immigration agents.  The issue, the sole issue, is that those jurisdictions are refusing to use their people and jail facilities to serve federal immigration law purposes.

What the federal government generally wants is for state and local jailers and street cops to check the immigration status of the people they come in contact with and to hold them over and above the time authorized by the event that brought them into state contact, sometimes by 48 hours, so that immigration agents can attend to them.  If the people so contacted are witnesses to crime, they need to know they will not be turned over to immigration agents once they have assisted local law enforcement solve a crime.  If the people so contacted are in jail for their own state crime, they need to be released when their commitment to the state is over and not be held additional periods of time for federal agents to contact them – local jails cannot hold people beyond their lawful release time, and the jail overcrowding we have now sees many local detainees released early anyway – do we use that scarce space to enforce federal law when we don’t have enough even for state law?  Are we to command overworked local police to do searching background checks to decide if the people are here illegally?  What if they guess wrong and the person is illegally held – does our polity want to cough up the civil damages for that?

So, these so-called sanctuary cities are jurisdictions in which local officials have decided that they will not assist federal immigration enforcement; they are local jurisdictions that refuse to implement a federal program, for various reasons. [I doubt constitutional purity is one of those reasons, but it is for me!]

Whether it is wise for those jurisdictions to go that way or not, it is perfectly legal, and actually constitutionally compelled, if anyone heeds the doctrine of federalism, which is as ingrained in our founding structure as is federal supremacy and immigration policy.

Although the Constitution decrees that federal law is supreme, it is only supreme in its appropriate sphere. The appropriate sphere reality means that the federal government may not commandeer state and local governments to implement laws that are of an exclusively federal nature, which immigration is.  That means that the federal government may enforce federal laws regardless of the desires of state and local government [as we have seen with the questionable enforcement of federal drug policy against things that are legal in the states], but the federal government may not command state governments to enforce exclusively federal law.  Indeed, it is questionable whether state governments can constitutionally enforce federal law even if it wants to, but that is another question.

As was held in Printz v. United States [where the subject is whether the states had to heed the federal policies of background checks for gun purchases, the answer being “no”]: “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

None other than Justice Scalia penned those fundamental words.

Unfortunately, the federal government does have strong-arm tactics that it can employ, which would be inconsistent with the Framers’ intents about federalism, but which it has contra-constitutionally employed on many matters over the years, and that is the tax and spend authority that the Constitution set up.  The federal government can over-tax people and then offer to dole out some of its ill-gotten booty back to the states via grants and other fiscal inducements, thereby giving the states a painful choice over policy matters that the federal government could not directly command.  That is, the federal government could offer to not withhold grant moneys for state and local law enforcement activities and materiel if the state and local people would get on board the immigration requests.  That is one of many instances in which government can practice policies that would get you or me thrown into prison, because that practice is common law blackmail!

Many local programs [even DUI checkpoints] are funded through the federal government, as are highway building projects, etc., and we have become so attached to the federal teat that we frequently lose sight of the fundamental doctrine of federalism.

So, the feds could say either cooperate or we will starve you, but fortunately they have not gone down that Constitution-busting road on this matter yet.

But those who claim or pretend to be lovers of the Constitution need to understand that there is nothing illegal nor unconstitutional about the “sanctuary city” practices of the nature discussed here, and there is much contra-constitutional about the federal government commanding the states to do their bidding.

Jury Nullification Really Is Not; It Is More

One of the problems with discussing, thinking about, avoiding, educating about, being concerned about “jury nullification” is that the term itself is misleading.  It implies that there would legitimately be a certain outcome but for the jury aggressively vetoing that matter.  But that is not consistent with the Framers’ notions of, and intents about, the citizen jury.

Government can start down the road of invading people’s liberties by arresting for and then by prosecuting for a criminal accusation, but there cannot be a conviction unless a jury is convinced that there is beyond reasonable doubt quantum of evidence and also convinced that general concepts of justice are satisfied by a conviction.  That is the original jury’s role.  The thing we label “nullification” is really simply part of the jury’s original role, which government wants now to suppress. But the jury is not nullifying anything when it considers factors other than sheer evidence; it has to be convinced both of the sufficiency and of the justice of the matter, or acquittal is mandated.

Over the years, the executive has put pressure on their judicial friends to nay-say the jury’s full role, pretending the executive has a right to conviction if they have given enough evidence, and judges who are generally not well-steeped in constitutional history and principles have given in, commanding attorneys not to let juries know their full powers.

But you see, that proves the point, because the function of the jury was to protect people against not only bad-minded executives, but also against bad-minded judges, because the protection of juries was against all of government.

So the fact that a judge tells a jury that they must look only at the questions of fact, and not of law nor of justice, merely points out the increasing need for a robust jury.  In other words, the fact that judges say juries can’t do their full and intended function of protection is like the fox telling the famer that he should not put up a sturdy fence around the chicken coop. The wrongful and harmful claim illustrates the need for the protection.

We must educate the public that despite what wrong-minded government tells the citizenry, the citizens, through their jury power, are the ultimate deciders, and they should not be dissuaded from using their power simply because one of the agencies they are designed to protect us against says they can’t protect us against it.

When courts, or the “sovereign’s representative” – public prosecutors, speak ill of the doctrine of jury nullification, they thereby speak against the founding principles of the Republic; they thereby speak against the power of the people to govern the Republic; they essentially speak treason.

Jurors need to know that regardless of what the agencies they were designed to protect us against, the executive and the judicial branches [and the legislative branch also!], they have the power, legitimate power, power recognized and celebrated and endorsed by the Founding Fathers, to disregard evidence and instructions and contrary proclamations and to acquit people who are on trial in front of them.  And they have the duty to do so.

Independence Day approaches, and jurors taking matters into their own hands and acquitting people on trial is the ultimate exemplar of the sort of independence that the Framers envisioned.  Jurors doing otherwise is precisely why we have so many factually innocent people who have been convicted and imprisoned, sometimes for decades.  

As Ben Franklin intoned, the nature of our liberty is such that it is better that 100 guilty people be turned loose than that even one innocent person be convicted.

www.kennedyforlaw.com

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 21^st 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.4^th 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.