Here's the situation. I was pulled over for a DUI. When the officer pulled me over and gave me a breathalyzer test at his car I blew .08 and that is what was.
Arizona DUI Legal News & Help – http://www.dui-attorney-news.com/arizona/
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question about california dui law? | Arizona DUI Legal News & Help
WINHALL – As part of the process to educate young people about the ramifications of alcohol abuse, Winhall Police Officer Gregory Gould has developed a new …
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Winhall program teaches students about drunk driving
So you got stopped last night and arrested for drunk driving. And right after the Breathalyzer showed a blood-alcohol reading of .09%, the officer confiscated your driver’s license and gave you an official notice of immediate suspension.
“What happened?”, you ask. Can they do that? I thought I was presumed to be innocent, and the state had to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about “due process”: Can they suspend my license for DUI before giving me a chance to defend myself?
Good questions.
The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) DUI who (1) has a .08% breath reading, or (2) takes a blood or urine test, or (3) refuses to take any test. This means immediately — on the spot: the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you.
Viewed another way, the officer in a DUI case is cop, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it!
So, again: How can they do that in America?
Well, at first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called “APS” laws (the phrase stands for “administrative per se”, referring to the “per se” crime of .08%, as opposed to the crime of driving under the influence of alcohol, which is for the courts). They justified this by saying that a license was a “privilege”, not a “right” — and since the license holder had no rights, the state could do what it wanted.
Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And “due process” simply means fairness — a fair procedure by which he can contest the confiscation of his property.
The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts and the suspension merged with the criminal proceedings.)
MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced states into adopting APS suspensions — or else no funds. ?Do these APS hearings in DUI cases provide due process? In other words, how fair are they?
Let’s take California’s APS hearings. They are conducted by a “hearing officer”. Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate.
So who is the prosecutor? He’s, well…the same guy.
That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can introduce his evidence against you and then make objections to your evidence — and sustain his own objections! And eventually decide whether you win or he does!
What is the DMV’s evidence?? In California, it’s a brief printed form signed by the arresting officer — i.e., the entire case is hearsay.? So doesn’t the Constitution give the accused a right of confrontation — the right to cross-examine his accuser?? Well, if you want to cross-examine him, you have to subpoena him yourself — often a difficult procedure.? Oh, yes…and you have to pay his salary for his time (usually overtime).
Not too surprisingly, the DMV wins about 96% of these DUI hearings.
That’s called “due process” in a drunk driving case.
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Due Process and DUI License Suspensions
In the “Who will guard the guardians?” department…
Activists want penalties for cops who protect colleagues who drive drunk
Tuckahoe, NJ.? Jan. 20 — Reacting to a Journal News report in which 10 local police officers admitted anonymously that cops often give other cops a break when they are found driving drunk, (Tuckahoe Police Chief) Costanzo and others said no slack should be granted in DWI cases.
Carol Sears, president of the Westchester chapter of Mothers Against Drunk Driving, called the report “very disturbing.”
“These are the people who are supposed to be protecting all of us,” she said. “We put our trust in them to keep drunk drivers off the road, and it turns out that when they’re the drunk drivers, they’re being protected by other police officers.”…
The issue comes in the wake of the arrests of White Plains Officer Joe Zepeda, Westchester Officer Joseph Kraus, Dobbs Ferry Officer Michael Huffman and county Correction Officer Patricia Yancy-Johnson on misdemeanor DWI charges following accidents within a three-week period. All four, who were off duty, refused to submit to chemical tests to determine blood-alcohol levels.
Sears said any officer who covers up for another officer should be brought up on charges.
“I’d like to see some agency or entity investigate this whole ‘blue wall of silence’ thing,” she said.
Welcome to the real world, Miss Sears.? To add to your enlightenment, see a few of my earlier posts, such as Who Will Guard the Guardians?, The DUI Double Standard, The DUI Double Standard II and Who Guards the Guardians?.
(Thanks to Lance Mixon.)
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Guarding the Guardians
Suppose a police officer asks or orders an individual to drive a vehicle — and then arrests him for DUI when he complies? This situation comes up more often than you might think. Take, for example, the following case that eventually made its way to the New Jersey Supreme Court….
The defendant asked his brothers at a wedding reception to drive him home because he was too intoxicated to drive. In the parking lot, however, the brothers got into a fight, attracting the attention of local police. One of the officers struck a brother with his nightstick. The defendant asked the officer to quit hitting his brother. The officer replied by ordering him to leave the parking lot. When the defendant did not immediately comply, the officer repeated the order and then forcefully escorted him to his truck. The defendant obediently got into the vehicle, started the engine — and backed into a police car. He was arrested for drunk driving.
At trial, the judge ruled that the defendant had failed to prove entrapment or duress as a defense, and he was convicted. On appeal, however, the conviction was reversed on grounds of quasi-entrapment — that is, the defendant should have been acquitted if he could show that but for the officer’s order to leave in the vehicle he would not have driven. The prosecution appealed this reversal to the state’s supreme court.
Incredibly, the Supreme Court reversed the lower court and reinstated the conviction. Its reasoning? “Obviously,” the court said, “if the law were to permit [drunk drivers] to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear”.
The court continued its twisted logic: “No one ordered the defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through the use or threats of violence. The police officers merely ordered defendant to get in his truck and leave the scene of the fight….” (Emphasis added) ?State v. Fogarty, 607 A.2d 624.
This “no win” scenario is fairly typical of what I have referred to in earlier posts as “the DUI exception to the Constitution“.
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DUI Entrapment
A JMPD officer has been arrested for drunk driving following a high-speed car chase in Rosettenville. Members of the police's Internal Affairs Unit spotted the officer slumped behind the wheel at an intersection on Saturday. …
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Eyewitness News: JMPD officer arrested for drunk driving
You've just been arrested for DUI. And, like in the movies, the officer reads you the “Miranda” rights: “You have the right to remain silent”, he tells you, “You have the right to an attorney”. And then the very next thing he asks if if …
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“You have the right to remain silent”, yeah sure… | DUILawDefense Blog
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Pennsylvania DUI Attorney invited to lecture to over 200 DUI …
This person was arrested by two people. They took his keys out of his car and ran down the road with them and one held her down until the officer came and.
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Will a citizens arrest hold up in court for a dui arrest.? | My …
Under California DUI law, a motorist can be charged with DUI with a BAC under the legal limit of .08% if the officer feels the vehicle is being operated unsafely. Kerry posted $5000 bond and was released around 5:30 am. …
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Senator John Kerry’s Daughter Charged with California DUI | DUI …