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Just when you thought things couldn't get any more ridiculous, a Texas court of appeals has ruled that evidence a driver took a breath mint provides sufficient additional evidence to support an arrest for drunk driving — even though the officer admitted he had insufficient evidence before that.

Court Finds Breath Mints Are Evidence of  DUI

Lewisville, TX.  April 18 — Use of breath mints can be considered evidence a driver is intoxicated, according to a divided Texas Court of Appeals ruling delivered earlier this month. The three-judge panel made the decision in the case of limousine service driver Robert Richardson who was stopped in Lewisville, Texas on August 25, 2010 while transporting customers from the airport.

Texas Department of Public Safety Trooper Fulford was about to issue a speeding ticket to a motorcycle on Interstate 35E when he noticed Richardson's Chevy Tahoe change lanes without signaling, almost hitting the motorcycle. Trooper Fulford was concerned primarily about the bad driving, but in the back of his mind he thought it could also be a case of driving under the influence (DUI). Once stopped, there was a mild odor of alcohol in the Tahoe, the passengers denied drinking, and Richardson was nervous. Trooper Fulford told Richardson he would write him a warning for his failure to signal before changing lanes. When he returned from his squad car with a warning notice in hand, Trooper Fulford said he noted an "overwhelming" odor of breath mints.

"Did you just take a breath mint?" Trooper Fulford asked.

When Richardson said yes, he was ordered out of the Tahoe. From there, he was arrested and convicted of DUI. Richardson appealed, arguing the traffic stop was complete after the trooper handed him back his driver's license with a warning, and that anything that happened beyond that point amounted to an illegal detention. The Texas judges acknowledged the principle that once a traffic stop concludes, it should not be used as a fishing expedition for unrelated criminal activity. The court had to decide whether the use of breath mints constituted a specific articulable fact suggesting another crime had been committed beyond the bad lane change.

The appellate judges agreed with the trial court that all of the clues Trooper Fulford picked up on prior to smelling the breath mints combined to provide the suspicion needed to make the search reasonable and consistent with the Fourth Amendment.

"These facts, which Trooper Fulford identified during his testimony at the suppression hearing, were sufficient to provide him with reasonable suspicion that Richardson had been driving while intoxicated," Justice Anne Gardner ruled for the court. "We overrule Richardson's sole point. Having overruled Richardson's sole point, we affirm the trial court's judgment."

Thanks to Joe and TheNewspaper.com.
 

DUI BLOG

I’ve written in the past about the growing practice of forcibly taking blood from a drunk driving suspect, sometimes done by a cop in the field.  See, for example, Taking Blood by Force, Forced Blood Draws by Cops: Constitutional?, Forced Blood Draws by Cops Spreading, Blood Draws in the Back Seat by the Dashboard Light and Forced Blood Draws: Citizen Backlash?.   

Here’s a new tactic: threaten the suspect with strapping him down and painfully jabbing a needle into him (however many times it takes to get a blood sample)…unless he agrees to "voluntarily" take a breath test.

Texas Blood Test Aims at Drunk Drivers

Wall Street Journal, Dec. 11 —  Texans arrested for drunken driving should be prepared to give blood this holiday season.

Cities and counties across the state are increasingly demanding that drunken-driving suspects who refuse to take breathalyzer tests submit to blood tests that measure the amount of alcohol in their systems.

The blood-test policy—dubbed "no refusal" by law-enforcement officials, because it prevents drivers from refusing to provide evidence of intoxication—has grown from a novel procedure used in a few Texas jurisdictions to an initiative used by police statewide, particularly during weekends and holidays when drunken driving is most common. The no-refusal initiative has also caught on in other states, including Florida, Illinois, Louisiana and Missouri…

Texas courts have uniformly upheld the constitutionality of mandatory blood testing, attorneys said. But criminal-defense lawyers say such mandatory tests trample suspects’ rights to be free from unreasonable searches and seizures. "It’s an erosion of civil liberties," said Austin defense lawyer Samuel Bassett. "If we can poke people involuntarily for evidence, where do we draw the line?"…

Police are empowered to strap a suspect to a chair, if necessary, to obtain a blood sample. That allows blood to be drawn quickly—a key benefit to prosecutors because blood-alcohol concentrations dissipate over time…

In El Paso, police find that the policy actually encourages people to submit to breath tests. "We give people the option of blowing into a tube or getting poked with a needle," said Lt. Rod Liston. "People increasingly are going with the less painful option."…

Hmmm…Threatening to "poke" a suspect with a needle actually "encourages" him to submit to a breath test?  What a surprise!  But I guess this wouldn’t be "torture" using the Attorney General’s definition requiring organ failure.

So:  "Submit to a breath test…or we’ll strap you into a chair and jam needles into you."   Welcome to the War on Terrorism…I mean, Drunk Driving.
 

DUI BLOG

The latest news fresh from the front lines of MADD’s "War on Drunk Driving": 

DUI Cases in Jeopardy After Richmond County Deputy Admits Falsifying Readings


Richmond County, GA. Nov. 19 – The forced resignation of a deputy assigned to the DUI task force could affect the prosecution of hundreds of cases, according to those in the legal community.

Erik Norman faced mandatory resignation from the Richmond County Sheriff’s Office on Oct. 19 after a prosecutor reported that Norman told her he had falsified readings from a hand-held alcohol-testing device.

Norman told the department’s internal affairs division that he had done it only “once or twice” but couldn’t recall exactly which cases were involved.

Norman’s credibility is gone now, no matter how many times he falsified readings, said Augusta attorney Robert “Bo” Hunter, who prosecuted drunken driving cases as the Richmond County State Court solicitor from 1988 to 1996…

Even worse, Hunter said, is that there probably were people charged with driving under the influence who shouldn’t have been.

Norman, hired as a jailer in July 2002, was transferred to the DUI task force in March 2009. An accurate count of his DUI convictions cannot be made through court records, but during his time on the task force, he arrested an estimated 250 to 400 people.

State Court Solicitor Charles Evans said his office has 62 pending DUI cases in which Norman was the arresting officer. Each will have to be judged on its merits to determine whether to continue prosecuting them as DUIs. If necessary, the office will bring in Norman as a trial witness, Evans said.

The Georgia Peace Officer Standards and Training Coun­cil is investigating to determine whether Norman can keep his certification, said Ryan Powell, its director of operations. Unless he is arrested on felony charges or his certification is suspended, Norman is free to work as an officer, Powell said.

Falsifying evidence is a felony – making false statements – but prosecuting Norman for it would be difficult, District Attorney Ashley Wright said. A prosecutor would have to prove in which case Norman falsified the results, and there is no way to uncover those cases without Norman’s admission. He claimed he didn’t know which cases were falsified…

Do you really think this Georgia deputy is the only cop out there falsifying breathalyzer readings to justify his DUI arrest?
 

DUI BLOG

Hmmm….Maybe the citizens of this country are beginning to wake up to the fact that those infallible breath machines aren’t so infallible.  And prosecutors don’t like it.

Controversy in BAT Van Investigation

Houston, TX.  Oct. 21 – There are new questions about just what a grand jury is investigating after prosecutors were thrown out of the grand jury room.

In an incredibly rare move this week, the foreperson of a Harris County Grand Jury asked a bailiff to remove prosecutors so jurors could hear from a witness on their own about potentially faulty DWI tests.

13 Undercover first raised questions about the accuracy of the Houston Police Department’s so-called BAT [Breath Alcohol Test] vans, but now it’s the investigation into how those problems were handled that’s causing controversy.

For months, some of the people closest to HPD’s breath testing vans have told you and us that the vans are unreliable — meaning the roadside tests they do on alleged drunk drivers may not be accurate.

Now the controversy has spilled over into a grand jury investigation, and it’s become so heated that a prosecutor working for Harris Co. District Attorney Pat Lykos was thrown out of the grand jury room earlier this week under the threat of arrest.

Amanda Culbertson worked for HPD for four and a half years as one of the supervisors overseeing mobile breathalyzer machines known as the BAT vans. She quit when she says HPD’s poor maintenance was leading to unreliable test results.

But her real trouble started when she spoke out about it. After Culbertson told a judge about her concerns, the DA questioned her credibility and pushed the county to cancel a contract with her new employer, in essence firing her.

Culbertson told her lawyer Chip Lewis that the DA is targeting her.

"She has not only thought it herself, but been told by people very close to the fire that the District Attorney’s Office is after you," said Lewis.

This week a Harris County Grand Jury wanted to hear from Culbertson as well as Brent Mayr, a former prosecutor who previously alleged the DA is bullying Culbertson to force her silence.

"Clearly retaliation for these individuals expressing opinions that the DA’s office didn’t like," Mayr said on October 4.

When Mayr walked in to testify before the grand jury on Tuesday, the foreperson told prosecutors to get out. They wanted to hear from Mayr and Culbertson without a DA in the room.

"They obviously believe that the DA’s Office played a role in this case and that they can’t be independent," said KTRK Legal Analyst Joel Androphy.

While it is rare — and legal — the DA’s Office threw a fit. Court records show top assistants to the elected DA refused to leave the room until a bailiff threatened to arrest them. The DA tried to force a judge to let them back in, but it was denied. An appeals court said the same thing.

"The grand jury is a function of independent people from the community. It’s not supposed to be the vote of the DA’s office," said . "This is rare and it would happen one out of a hundred times that a grand jury would have the courage enough to basically say to the DA’s Office get out of here or you’re going to get arrested."

We tried to ask the DA about it Friday, but they refused repeated interview requests. We’d love to ask what they knew about the BAT van problems, when, and what they did about it. It may be the same thing the grand jury is looking at on its own; and it may be the reason the DA was so angry about being thrown out of a supposed independent investigation.

"It’s clear to me that the grand jury has questions about how this was handled from a law enforcement standpoint. Now, I don’t know if that’s specifically confined to how HPD treated her or if they have some beef with what the District Attorney’s Office did as well," said Lewis.

Androphy told us in cases like this it would be best for the DA to ask for an independent prosecutor, but the DA’s Office said they haven’t. It would’ve been one of the questions we asked if anyone at the DA’s Office would’ve been willing to join us for an interview, but no one was.

13 Undercover and Wayne Dolcefino exposed the potential maintenance problems with the BAT vans back in March. We found documents detailing electrical problems that kept some of the very expensive mobile breath vans from ever being used. We showed you emails showing some cops were worried it might affect criminal cases. HPD didn’t tell the DA’s Office.

Funny, when I was a Los Angeles Deputy D.A., we understood our duties as they are set forth in the Canons of Ethics:  the prosecutor’s job is not to win, but to seek truth and justice.  I guess times change….

(Thanks to Art Weiner.)

 

DUI BLOG

A former state legislator took his DWI case to trial earlier this week. On June 29 the former legislator had an encounter with police outside a restaurant in Burlington. The legislator told the officer he did not want to talk because he had been drinking beer.

Roughly a half-hour later, Burlington police conducted a traffic stop as the man was driving home. After an investigation, the man was charged with DWI on allegations of breath test refusal.

During pretrial hearings the accused attempted to have the charge dismissed arguing that officers did not have sufficient evidence to conduct the traffic stop and lacked probable cause to charge the man with DWI. The judge denied the challenges and the matter proceeded to trial.

Law enforcement claimed that the accused used his tongue to block the airflow into the Intoxilyzer unit during several attempts to perform the breath test. The accused reportedly had told the Times-News after the arrest that he had bronchitis on the night of the arrest.

After several attempts to perform the test, the arresting officer testified that he believed the accused was willfully refusing to provide an adequate test sample. A videotape shown in court shows the man asking the officer to allow him to take the breath test one more time. He reportedly could be heard saying he had not been told how hard he had to blow.

Bartenders at both establishments in Burlington testified at trial that the man had ordered only one beer in each of their restaurants that night. One bartender said the man did not finish the one ordered at the establishment where the bartender worked.

The accused was found guilty of the North Carolina DWI charge. The judge sentenced the former legislator as a Level 5 DWI. The judge imposed a suspended 60-day sentence. The man was fined 0 plus court costs, he must complete 24 hours community service within 30 days and make an appointment for a substance abuse assessment. He is on probation for 18 months.

Source: Greensboro News & Record, “Allred convicted of drunken driving,” 18 Nov 2010

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

In my last post I presented a videotape from breathalyzer expert Stephen F. Daniels showing the falsification of monthly breath machine reports in the Hillsborough County (Florida) Sheriff’s Office.  

The following is another videotape from Mr. Daniels, depicting officers falsely signing a document verifying compliance with breath test regulations before the test of an arrested suspect.  The regulation involves the requirement that the suspect must be kept under constant observation for a period of at least 20 minutes before the test is administered.  This is to ensure that the suspect has not burped, belched or regurgitated — which can tremendously increase a breath test reading; it takes up to 20 minutes for the "mouth alcohol" to be dissipated.

The videotape on YouTube:  Falsify Notary and Violate the 20-Minute Observation Period – Officer Cooper and Deputy Glover.   

As the video clearly shows, none of the officers signing the document (which was blank) under penalty of perjury observed the suspect for more than a few seconds, if at all.  This was later confirmed by a Florida court, which stated in its ruling in favor of the accused: "The lack of candid disclosure concerns this court.  The affirmation of Officer Cooper (DD9) of constant observation of the Petitioner from 5:58 am until 6:17 am is clearly not true…Officer Cooper failed to maintain observation of Petitioner and falsely states that he observed her when he did not."  

It should be understood that what happened on this videotape is not an isolated instance.  Cutting corners and falsifying documents in drunk driving cases is common in police agencies across the country.
 

DUI BLOG

How would you like to be stopped by the police anytime, anywhere, and tested on a breathalyzer — for no reason except that the cop felt like it? 

MADD Would Like to See Random Breath Tests for Drivers

Toronto, Canada.  Nov. 2 – 
If Mothers Against Drunk Driving CEO Andrew Murie has his way, drivers across Canada could be forced to take a breathalyzer test anywhere, anytime — whether police suspect drunk driving or not.

And Murie may get it…

Murie has some big backers in the random breath testing debate.

Federal Justice Minister Rob Nicholson has endorsed such a change in the law, echoing a June 2009 recommendation from the Standing Committee on Justice and Human Rights that Ottawa amend the criminal code to allow police across Canada to conduct random breath tests.

RBT would replace Canada’s current, 40-year-old way of doing things, where police can demand a breath test only if they have reason to suspect a driver is too drunk to drive.

Ottawa said it would talk to the provinces first, then consider the changes…

But RBT is a slippery slope for a “free and democratic country” such as Canada, said Nathalie Des Rosiers of the Canadian Civil Liberties Association.

Increasing police power to that point, she said, would send the truth north strong and free toward becoming a police state.

“It’s about giving the power to the police to arrest someone anywhere, anytime and subject them to a criminal investigation where they have to comply, even though there is no reasonable grounds that they’ve done anything wrong,” said Des Rosier.  

This is a logical progression in the long series of drunk driving laws and court decisions which have steadily eroded our Constitutional rights — here and, apparently, in Canada. Look for MADD USA to make random stops and breath tests their next legislative goal.

DUI BLOG