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Driving while impaired charges filed against a North Carolina assistant district attorney were recently dropped after his defense argued that the prosecutor had insufficient evidence to support the allegations. The DWI charges followed an investigation of a bicycle accident at a golf course at a hotel. Police found the man injured from the bicycle accident and later grew suspicious that the man was under the influence.

The man suspected of riding a bicycle while impaired refused to submit to a breath test. Officers apparently believed that the man was impaired and a criminal case was brought against the man, apparently based upon the officer’s suspicion of impairment.

Greenville DWI defense lawyers are aware that North Carolina law allows prosecutors to seek DWI charges on two separate theories. Most North Carolina drivers know that the legal limit to drive is set at 0.08 percent or more Blood alcohol concentration. However, prosecutors can also rely upon an arresting officer’s testimony concerning the officer’s observations at the time of the investigation.

Prosecutors pursued DWI charges against the man who had been riding a bike at a private golf course. The state did not have a breath test result to pursue presumed impairment based upon a test result.

The defense argued that the state could not prove that the man rode the bicycle in a public area, but only at the golf course. The man had been attending a conference at a hotel associated with the golf course.

Additionally, the DWI defense argued that police observed that the man had a broken nose and facial lacerations. The defense argued that the prosecutor could not prove that any disorientation that the cop may have observed on the night of the accident was insufficient to prove impairment from alcohol. The defense argued that any disorientation the man may have displayed could reasonably be attributed to the injuries the man sustained in the bicycle accident.

The DWI charges were dismissed recently in Brunswick County.

Drivers who refuse to submit to an alcohol test under North Carolina’s implied consent laws can face an automatic civil revocation of their driver’s license. The man reportedly brought a challenge to the civil license revocation. News reports indicate that it was determined in an October 2011 hearing that insufficient evidence existed to support the license revocation.

Source: Hickory Record, “Charges against assistant district attorney Bellas dismissed,” Sarah Newell Williamson, Jan. 25, 2012

Greenville DUI Attorney Blog | North Carolina Underage Drinking Lawyer | Pitt County First DUI Law Firm

It may not surprise you to find out that alcoholics arrested for DUI will generally have higher blood-alcohol readings. It may surprise you, however, to learn that individuals having the disease of alcoholism will generally have higher blood-alcohol readings because they are alcoholics…..

That’s right. It’s because the physiology of alcoholics is different in some important respects. One of those is that their bodies produce more acetaldehyde — far more. Acetaldehyde? That’s a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. Unfortunately, alcohol in the lungs has been found to metabolize there as well as in the liver — and to produce acetaldehyde there.

The amount of acetaldehyde produced in the lungs (to then be breathed into the breathalyzer) varies from person to person. “Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking”, 100 Journal of Laboratory Clinical Medicine 908. But in a study focusing on alcoholics, researchers discovered that the amount of acetaldehyde in the breath and blood of alcoholics was 5 to 55 times higher than that in nonalcoholics. “Elevated Blood Acetaldehyde in Alcoholics and Accelerated Ethanol Elimination”, 13 (Supp 1) Pharmacology, Biochemistry and Behavior 119.

End result: since breathalyzers can’t tell the difference between alcohol and acetaldehyde (see earlier post, “Why Breathalyzers Don’t Measure Alcohol”), alcoholics will usually have falsely higher blood-alcohol readings.
 

DUI BLOG

Anyone who has read my blog for any length of time knows how I feel about the efficacy and constitutionality of DUI roadblocks (aka "sobriety checkpoints").  See, for example, Do DUI Roadblocks Work?, Do DUI Roadblocks Work? (Part II), DUI Logic: Roadblocks Effective Because They’re Ineffective, and Are DUI Roadblocks Constitutional?.  

Recently, I’ve read some news articles and editorials that lead me to believe there is a growing backlash against these police-state procedures.  The following is from the Editorial Board of  the Colorado Springs Gazette:

Opinion: Cops Detain 1,407 Innocent Drivers

Colorado Springs, CO.  Sept. 6 – Colorado Springs police detained 1,420 drivers last Saturday in yet another ineffective effort to catch drunken drivers. As a result of detaining thousands of drivers and countless passengers, police cited eight — a whopping .56 percent — on suspicion they had driven under the influence. Meanwhile, cops working the checkpoints were not on the roads providing legitimate public safety.

This part is weird: Five others were cited for open containers. Imagine driving through a swarm of police, who are stopping vehicles and looking into them, with an open beer.

Drunk drivers kill. Those who drink, even a little, have no business getting behind the wheel of a motorized vehicle for the rest of the day. Just don’t do it for any reason.

Society needs to eradicate drunken driving, but sobriety checkpoints are not the answer. They violate the Fourth Amendment, which forbids unlawful searches and seizures. They are permissible under the Supreme Court’s 1990 ruling in Michigan Department of State Police v. Sitz, a case in which the majority decided to allow an erosion of liberty to facilitate a compelling interest in reducing fatalities. Checkpoints would be easier to accept if they actually improved public safety.

“The net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative,” wrote Justices Paul Stevens, William Brennan and Thurgood Marshall in their Michigan v. Sitz dissent.

Most public safety experts acknowledge that traditional policing, in which officers look for drunken drivers while patrolling, is more effective. Law enforcement brass like checkpoints because they create overtime pay. An investigation by the University California found that checkpoints generate million in annual overtime pay in California alone. Checkpoints, which are funded with transportation grants, are public relations stunts…

Our police are supposed to protect and serve the public, not detain individuals to generate publicity and overtime pay. Please take a pass on future checkpoint grants in Colorado Springs and use traditional methods to catch drunk drivers.

The fact is that most roadblocks are increasingly a means of illegally using DUI roadblocks as an excuse for stopping vehicles to find minor violations such as equipment violations, expired car registrations and drivers licenses not in possession.  See my posts, DUI Roadblock: 1131 Stops, 114 Tickets, 0 DUI Arrests, Another "Successful" DUI Roadblock: 3000 Drivers Stopped, 0 DUIs, DUI Roadblocks for Fun and Profit and The True Purpose of DUI Roadblocks. 

As long as local governments continue to rake in desperately-needed revenues from these fraudulent police practices, "DUI" roadblocks will continue.
 

DUI BLOG

The NAACP is pledging to lead what it says will be a strategic focused attack on the civil rights problems facing African-American men, not the least of which is the high percentage of Blacks that wind up incarcerated in the United States.

Researchers presenting at the organization’s annual convention in Los Angeles this week suggested that one of the reasons for the high rate is that U.S. lawmakers have criminalized a long list of non-violent behaviors involving drugs. In North Carolina these can include cases alleging prescription fraud, drug possession, or intent to sell. Even convictions on such charges as underage drinking and underage DUI during one’s student days can cast an unwanted shadow over a person’s future for years.

At the convention for the National Association for the Advancement of Colored People, presenters told the audience that drug arrests in the U.S. have more than tripled in the last 25 years. According to officials of the U.S. Student Association and the Criminal Justice Program, the United States leads the world in incarcerations, accounting for 25 percent of all people jailed around the world. And they say that in 2005 alone, nearly 43 percent of all drug arrests were for offenses involving marijuana.

In one major speech to delegates NAACP leader Ben Jealous said, “We can’t ignore that 45 percent of Black males are on a path right now to end up chronically unemployed, incarcerated or dead. Nor can we ignore that we have more Black men in prisons than in our universities.”

He pledged that the organization will work on a nationwide basis to build a coalition to reverse such trends.

Source: Los Angeles Wave, “NAACP pledging renewed focus against threats to civil rights,” Olu Alemoru, Andre Herndon and Leiloni De Gruy 27 Jul 2011

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Most Americans believe that there is a constitutional right against being forced to provide evidence against yourself.  And certainly, most Americans could not imagine that a citizen arrested for a criminal offense could actually be charged with a separate criminal offense of not giving possibly incriminating evidence — in other words, if you don’t provide evidence against yourself, you will be convicted of refusing to do so and be thrown in jail.  Not in the U.S., right?

Wrong.  But then most Americans aren’t familiar with "the DUI Exception to the Constitution".

Most people don’t realize it, but it is a criminal offense in a growing number of states for a citizen arrested for drunk driving to refuse to give a breath or blood sample; in most other states, a refusal increases the penalty for the DUI itself.  After the DUI arrest, the police will tell the suspect to submit to a blood or breath test; if he refuses, he will be charged with drunk driving — and with refusing to submit to testing.  And he can be convicted and sentenced for both.  In some states, the penalty for refusing is the same as for the DUI offense itself.

Wait a minute….Is it a criminal offense to refuse to provide semen in a rape case?  Nope.  Can you be thrown in jail for not providing a hair sample for DNA analysis in a murder case?  Uh-uh.  Then why only in drunk driving cases?  Ask MADD — and the politicians who cater to them.

The New Jersey Supreme Court addressed this issue a couple of weeks ago:

Judge: Failure to Provide Proper DUI Breath Test Akin to Refusal 

Gloucester Co., NJ.  May 27, 2011 – The failure of a motorist suspected of drunk driving failing to provide proper breath samples — of sufficient volume and length — constitutes a refusal that enables police to file an additional charge, the state Supreme Court ruled Thursday…

Woolwich Sgt. Joseph Morgan pulled over a motorist on Nov. 29, 2007 for allegedly swerving between the east and westbound lanes of a road within the township’s borders. The motorist cited a physical handicap that would prevent him from performing field sobriety tests.

At the Woolwich station, he consented to provide breath tests that would eventually be administered by a Logan Township officer. The motorist provided samples of 1.2 liters over 4.9 seconds and 1.2 liters over 3.3 seconds, Stern noted in his opinion. The officer needed a minimum 1.5 liter sample.

 

So unlike with any other criminal offense, a DUI suspect can be charged with drunk driving….and with refusing to give the officer possibly incriminating evidence.

It gets worse.

The various breath machines all require the suspect to breath through a narrow breath tube hard enough to lift an inner piston, permitting the sample to enter the sample chamber. The reason is that blowing hard forces the suspect to produce the air from the deepest part of his lungs (alveolar air) — air with the highest percentage of alcohol; the harder the blow, the higher the blood alcohol level. When there is insufficient pressure from the suspect to activate the sample-capturing mechanism, the machine will signal that the test is invalid. At that point, the officer assumes that the suspect is purposely not breathing hard enough in order to avoid incrimination, so he discontinues the test and reports it as a refusal.

But how does the officer know that the reason for the failure to produce a breath sample is intentional? He doesn’t, of course; being a police officer, he merely assumes it. But the amount of pressure required to lift the valve can be misadjusted, and many of them begin sticking after constant use. And the tube can be too narrow; the manufacturers of one breath machine, the Intoxilyzer 5000, had to enlargen the breath tube in later models because of large numbers of complaints.

Many individuals, particularly the elderly and cigarette smokers, simply do not have the lung power. And then there are the millions suffering from emphysema or asthma.

Researchers in one scientific study of asthmatics found that only 2 of 51 subjects were able to breathe hard enough to activate a breathalyzer. P.J. Gomme et al., “Study into the Ability of Patients with Impaired Lung Function to Use Breath Alcohol Testing Devices”, 31 Medical Science and Law 221 (1991). In other words, 49 of them would have been prosecuted and punished for “refusing” a breath test.

The law, in its wisdom and majesty, continues to punish citizens for not breathing hard enough to activate these machines — with little or no evidence as to the reasons why. And as is common in DUI cases, the reasons are presumed (see “Whatever Happened to the Presumption of Innocence?”) — and, of course, who is going to believe the defendant’s denial?

Welcome to the insanity of MADD’s "war on drunk driving".

(Thanks to Dr. Ronald Henson.)
 

DUI BLOG

“I began to realize what other minority people had discovered: That the only answer—the only hope—was in organizing. More of us had to become citizens. We had to register to vote. And people like me had to develop the skills it would take to organize, to educate, to help empower the Chicano people.”—César Chávez

Based on the quote above, how did César Chávez propose to fight against the discrimination against Latinos in American society?
A) By filing lawsuits
B) By starting letter writing campaigns
C) By holding voter registration drives
D) By protesting against discrimination
2.
How did La Raza Unida and the United Farm Workers differ in their goals?
A) The United Farm Workers did not seek greater economic opportunities for Latino Americans, while La Raza Unida supported better job opportunities for Latinos.
B) La Raza Unida worked to mobilize Latino voters, while the United Farm Workers advocated for union recognition and better worker wages and benefits.
C) La Raza Unida did not seek greater economic opportunities while the United Farm Workers advocated for vocational training programs for Latino Americans.
D) The United Farm Workers fought for greater educational opportunities for Latino Americans while La Raza Unida organized boycotts to push for civil rights.
3.
Which of the following organizations was NOT organized to promote civil rights for Latino groups?
A) Americans of Mexican Heritage
B) LULAC
C) United Farm Workers
D) American GI Forum
4.
In 1966, César Chávez and Dolores Huerta did which of the following to fight for Latino civil rights?
A) They merged their organizations to form the United Farm Workers.
B) They formed the political party La Raza Unida.
C) They organized a march on Washington to advocate for Latino civil rights.
D) They worked together for the passage of the Bilingual Education Act.
5.
LULAC fought discrimination against Latinos mainly through
A) lobbying efforts.
B) demonstrations and other protests.
C) the court system.
D) newspapers and other mass media.
6.
To push for better wages and benefits for farm workers, César Chávez organized a successful
A) march on Washington.
B) sit-down strike.
C) advertising and publicity campaign.
D) national boycott on grapes.
7.
Latinos argued successfully for the addition of what in public education?
A) Bilingualism
B) Repatriation
C) Feminism
D) Legalism
8.
What did the political party La Raza Unida do to advocate for Latino civil rights?
A) It supported programs to bring more Latino workers to the United States.
B) It called for an amendment to the U.S. Constitution guaranteeing the civil rights of Latino Americans.
C) It supported legislation ending segregation in public places for Latino Americans in the American Southwest.
D) It worked to get voters to elect people who would call for job-training programs and more access to financial resources.
9.
Who was the GI Forum founded to protect?
A) African American veterans
B) Women veterans
C) Mexican-American veterans
D) Veterans of Pacific Battles
10.
What did LULAC support while fighting discrimination against Latino Americans?
A) Voting rights for Latino American citizens
B) Assimilation into American society
C) A fair wage for Latino farm workers
D) A separate but equal school system for Latino American students

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Get Involved With MADD to Help Us Win Battle Against Drunk Driving

The one thing that riles me are the Michigan drivers who against all reason still drink too much alcohol and get behind the wheel of their car and risk the lives of innocent people. Michigan has very tough laws against drunk drivers and police and prosecutors stand ready to throw the book at violators. We have invested millions of dollars in public education campaigns to warn against the dangers of drinking and driving.

In spite of all this alcohol-related accidents are so prevalent that four out of ten persons in America will be involved in a traffic accident caused by an alcohol-impaired driver at some point in their lives.

This is so dangerous because a driver with the minimum legal blood alcohol concentration of 0.10 or greater is seven times more likely to be involved in a fatal crash than a driver who has not consumed alcohol. And the impaired driver with a BAC of 0.25 is 25 times more likely to be involved in a deadly crash. Simply put, the more you drink the more likely you will kill someone.

Party-goers fool themselves that they have not consumed enough beer, wine or liquor to be impaired. But a 160-pound person drinking two beers in one hour, while not legally impaired, is 1 ½ times more likely to have an accident than someone who is sober. So once you are at the six pack level of consumption you are a killer on the loose.

I am a loyal supporter of Mothers Against Drunk Driving (MADD). Each year I sponsor the annual LifeSaver Awards Luncheon sponsored by MADD of Southeast Michigan that pays special tribute to police officers who have a demonstrated record of removing drunk drivers from the roadways.

Every year some 14,000 people are killed by drunk drivers with an illegal alcohol level of 0.08 BAC or above. This represents more than 1,000 families every month that must live with the tragic consequences of drunk driving.

I fully offered my support to the MADD of SE Michigan Chapter when it launched its Campaign to Eliminate Drunk Driving. An important element of that campaign was the unprecedented support for intensive high-visibility law enforcement, such as its “Over the Limit – Under Arrest” campaign. The aim of this effort was to deter future drunk drivers from getting behind the wheel while impaired.

MADD is a grass roots organization with more than 400 entities nationwide. MADD’s mission is to stop drunk driving, support the victims of this violent crime and prevent underage drinking. MADD is a 501(c)(3) charity with about 600 offices and two million members and supporters nationwide. Founded in 1980, MADD has helped save more than 400,000 lives and has trained more than 1,200 victim advocates across the country.

I would encourage anyone to become involved in MADD and join this national campaign to eliminate drunk driving in America. If not, I certainly urge you to always insist that drinkers don’t drive which might mean you will have to volunteer to be a designated driver. When you drive for your drunken friend you remove one more killer from behind the wheel.

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Party demands for a constitutional limited government, balanced Federal Government budget, simplified tax system, audits of Federal agencies as well as reduced taxes and earmarks, will his ratings sink even faster than the current pace to the inevitable 12%?

http://www.nytimes.com/2010/09/20/us/politics/20dems.html

WASHINGTON — President Obama’s political advisers, looking for ways to help Democrats and alter the course of the midterm elections in the final weeks, are considering a national advertising campaign that would cast the Republican Party as all but taken over by Tea Party extremists, people involved in the discussion said.

But Democrats are divided. The party’s House and Senate campaign committees are resistant, not wanting to do anything that smacks of nationalizing the midterm elections when high unemployment and the drop in Mr. Obama’s popularity have made the climate so hostile to Democrats. Endangered Congressional candidates want any available money to go to their localized campaigns.

The "parties" are over.

The People may or may not win.

But the status quo has seen its days.

…

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