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Over the years I've posted ad nauseum on this blog about the increasing disintegration of constitutional rights in DUI cases.  See, for example, The DUI Exception to the Constitution.  This has been particularly true of the right to due process and the right to defend oneself against the sacred breathalyzers.  See Trial by Machine and Trial by Machine — but How Good Are the Machines?.

This abandonment of an accused citizen's rights is not, however, limited to the United States.  Consider the following editorial from yesterday's Toronto Globe….

Accused Drunk Drivers Deserve a Chance to Defend Themselves Against Fallible Breathalyzers

Toronto, CN.  Nov. 4 —  If judges find a certain defence to a drunk-driving charge credible, is it fair that Parliament should take the possibility of that defence away? The Supreme Court of Canada said unanimously this week that the Conservative government’s 2008 removal of a common defence to an impaired-driving charge meets constitutional standards of fairness. It’s a troubling ruling – though at least the court made sure it’s still possible for accused people to have a realistic chance at poking holes in the readings of a breathalyzer machine.

This isn’t to question the seriousness of impaired driving in Canada. It continues to be a major problem implicated in more than a thousand deaths a year. But the very seriousness of the crime, and of the consequences of being found guilty, underscore why accused people need a real chance to defend themselves.

The machines, and the people who work them, are fallible, according to the Canadian Society of Forensic Science, which has worked closely with the Canadian government since the late 1960s on standards for breathalyzers. And the Supreme Court agrees – the possibility “is not merely speculative, but very real.”

The defence that the government abhorred – because it worked – was known as the “two-beer” defence: Accused people would claim to have had just two beers (or three, or one), and would obtain a toxicology report that at their height and weight, based on the amount they said they imbibed, the breathalyzer machine’s reading could not have been accurate.

The Supreme Court said there was a scientific “disconnect”; the breathalyzer machines work when in proper repair and when a trained technician is in charge, studies show; so the defence should not have been as effective as it proved to be. It seems a reasonable point. But then ask – why, if judges find the defence credible enough in individual cases, and judges are deemed by Canadian justice to be the experts in sifting evidence and determining the facts, should the defence be taken away? Isn’t that a disconnect, too?

The 2008 law that removed the “two-beer defence” would have made it almost impossible to defend against the machine’s reading. Accused persons would also have had to show not only a failure of machine or technician but that the failure led to the reading over the legal limit; and finally, they would need the two-beer defence to show that they weren’t over the limit. It verged on the impossible.

Instead, the court snipped out the parts it didn’t like. It will now be enough to raise a reasonable doubt about the machine’s functioning or of the technician who operated it. That will start a new era, according to Toronto lawyer Jonathan Rosenthal, of requests for disclosure of all manner of information about the machine and technician.

And at least we will not have machine justice.

Trial by machine.  The future is here….
 

DUI BLOG

I’ve posted long and hard over the years about the inaccuracy and unreliability of breathalyzers.  See How Breathalyzers Work – and Why They Don’t.  But at least you could always refuse to take the test.  You aren’t required to incriminate yourself, right?  I mean, this is America and we have the Constitution to protect us.

Maybe not.  This looks like yet another in a long list of constitutional rights that are slowly disappearing in DUI cases.  See, for example, The DUI Exception to the Constitution, The Disappearing Right to Jury Trial…in DUI Cases, DUI and the Disappearing Right to Counsel, Are DUI Roadblocks Constitutional? and Forced Blood Draws by Cops: Constitutional?.

House Votes to Criminalize DUI Test Refusals

Topeka, KS.  May 17 —  After a lengthy discussion of constitutional rights, the House has approved a bill that makes it a crime for suspected repeat offenders to refuse a drunk-driving test…

Under Senate Bill 60, drivers with a DUI conviction or prior refusal of a DUI test would automatically be guilty of a misdemeanor if they refuse a test. The penalty would be the same as for a DUI conviction.

The House passed the bill 103-13, but not without some concerns expressed by members that it “tramples” the right to remain silent when accused of a crime.

Rep. Sean Gatewood, D-Topeka, said he’s seen many drunk driving crashes and the harm they cause working as a firefighter and paramedic.

But he said he was not comfortable with making it a crime to refuse to take a breath or blood test.

“These are American citizens and they have the right to remain silent, which this bill sort of tramples on, because if you just stand there silent … then you’re a criminal,” Gatewood said. “You have your 4th and 5th Amendment rights … and I just think there is no greater ridge to stand on than the Constitution of the United States.”

Gatewood proposed to send the measure back to a House-Senate conference committee for further work, but that motion died on a 23-88 vote.

Rep. Pat Colloton, R-Leawood, who carried the bill on the floor, acknowledged that its impact on constitutional rights was an important issue, but on balance she supported it.

She said courts are being clogged with repeat offenders who refuse the DUI test and take their chances with a jury.

Some lawmakers said stopping drunk drivers outweighed the constitutional questions.

“I would gladly walk the line, breathe into the tube and draw my blood if it would get repeat drunk drivers off the road,” said Rep. Bill Otto, R-LeRoy. “This is about people who are killing people.”

“This is not about constitutional rights,” he continued. “What about the constitutional right to life, liberty and the pursuit of happiness? (a phrase from the Declaration of Independence, not the Constitution) When you’re killed by a drunk driver, they’ve deprived you of your life. Death penalty, when you did nothing wrong.”

So….if you refused to incriminate yourself, you would be convicted of a crime and given the same sentence as if you had been convicted of drunk driving.  In other words, you are basically convicted of drunk driving because you wouldn’t incriminate yourself!

Another constitutional right slowly fades away….
 

DUI BLOG

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

While Florida pedestrian accidents and car accidents can occur at any time, there are many things you can do to help reduce your risk of being in an accident – before you even get in the car:

1) Protect yourself with excellent insurance. Good insurance can help protect you if you are in a collision and ensures that you as well as the other driver are covered for medical bills and related expenses in the event of an accident. Buy the best quality of car insurance you can afford to ensure that you don’t have to pay multiple costs out of pocket.

2) Turn off your cell phone or mobile device. Distracted driving has been proven to increase your risk of being in an accident. Just listening to your mobile device ringing can distract you – and can tempt you to pick up the phone or to sneak a peek at that text message. Put away your device and make sure it is off before you drive off, so that you can put all your focus where it belongs: on the road.

3) Make sure you are ready before you get in the car. Before you get in the car, make sure you are ready to drive safely. Make sure that you have not consumed anything which may affect your ability to drive. Prevent a Florida drunk driving accident by avoiding drinking before you drive, but also take a close look at your medication and any over-the-counter medication you are taking. Make sure it is safe to drive with the medications you are taking. Also, avoid driving when you are sleepy or very emotional.

4) Make sure that your car is ready to avoid accident. Keep your car in good repair and make sure that you walk around your car before you get in. Any tire problems or mechanical problems you have can affect your ability to control your vehicle and prevent an accident. Check with the manufacturer about any known problems with your vehicle. This is especially important if you have an older car – check to make sure that previous owners have had any known problems or recalls addressed.

5) Know your route. Knowing where you are going and having a clear idea of your route ensures that you can focus on driving – not on finding house numbers or street names. Use GPS or online mapping before you leave the house. Keep a copy of the map with you when you drive, but be prepared to pull over to read directions or have a passenger direct you as you drive. Trying to figure out your route as you drive is very distracting.

Florida Car Accident Lawyer Blog