dui
Objects in mirror are as pretextual as they appear
Aug 9th
turn left and go directly to jail
Over 4 years ago, a police officer received an anonymous tip that Gregory Cyrus was driving home drunk. The officer followed Mr. Cyrus, but didn’t observe him driving erratically, which is a feat in of itself given the bullshit usually spewed to justify a stop. Armed with a solid anonymous tip, Mr. Police Officer was at a loss. How was he to stop and arrest this man when he wouldn’t oblige and cross a single yellow line? And then it hit him. He saw Mr. Cyrus driving with what looked like a crucifix hanging from his rear view mirror. “Aha!”, he thought to himself, “I’ve got you now, you-person-who-must-be-drunk-because-someone-told-me-so-and-not-because-I-observed-anything!”
Relying on C.G.S. 14-99(f), the trooper pulled Mr. Cyrus over and arrested him for drunken driving. “Wait, just one Constitutional second!”, said Mr. Cyrus (through his lawyers). “You didn’t have reasonable and articuble artilicuable articulable suspicion to stop me, pursuant to the remnants of Terry v. Ohio!”
A learned trial judge agreed and a former supreme court chief justice reaffirmed that decision. But in the fair not-so-Constitution-al-State (okay, I’ll stop with the hyphenation), a win for the rights of each individual is rarely safe, as there looms the spectre of an almost automatic reversal from the law and order state Supreme Court.
Not today. Not this time. In a split 4-3 decision (more on that in a bit), the highest court of the State upheld the trial and appellate courts, based essentially on one simple proposition: that a stop cannot be based on a hypothetical:
The trial court recognized that there must be more than a hypothetical possibility that the driver’s vision would be obstructed or that he would be distracted to constitute a violation of § 14-99f (c). [Trooper] Mattioli had to have reasonably believed that the statute was being violated or was about to be violated, and he must have been able to articulate this reasonable belief to the court. It would have been improper to conclude that Mattioli reasonably suspected that the chain and cross hanging from the defendant’s rearview mirror was in violation of § 14-99f (c) without regard to whether there was a factual basis for Mattioli to conclude that the defendant’s field of vision appeared to be obstructed or that the defendant appeared to be distracted by the hanging object.
Legal fictions: a one-way street
Aug 2nd
The deck is stacked, the house always wins, etc., etc., etc. Phrases routinely used to indicate that the playing field is not level and is biased for one side against the other. I’ll give you another: consciousness of guilt. A legal fiction of the worst kind, to be sure. Consciousness of guilt is a neat little tactic employed by prosecutors and condoned by courts that seeks to cast every action taken by a defendant post-offense in a light most indicative of guilt.
Did the defendant realize that the justice system is a mess and he was going to get convicted no matter how innocent he was, so he took off? Consciousness of guilt. Did he lie to officers because he mistrusts them? Consciousness of guilt? Did he decline to make a decision about whether to submit to breathalyzer until his spoke to his lawyer? Consciousness of guilt.
As you’re well aware by now, there is no presumption of innocence, just a presumption of guilt. And how does the court system solidify that presumption? By pairing it with the “guilty conscience”.
Juries routinely get instructed on “consciousness of guilt”. They are told to *wink wink* draw whatever inferences they may from the defendant’s post-offense or post-arrest conduct. But what if the tables are turned? What if there is some post-offense or post-arrest conduct that shows a defendant is not acting like a guilty person (whatever that may mean)? Of course not. Don’t be silly, this is the justice system we’re talking about. There is no such thing as “consciousness of innocence”, because innocent people don’t get arrested.
So if a defendant wants the jury to draw a favorable inference from the fact that he offered to take a polygraph, but the police refused to administer it, he’s out of luck. Or if the defendants wants to tell the jury to consider the fact that he voluntarily turned himself in (which, per the English language, is the opposite of fleeing), he can’t. If he wants the jury to draw whatever inferences they may from the fact that he asked to be submitted to a breathalyzer, he can’t, because dammit these are the rules we made and that’s that.
So Mr. Seekins’ jury gets to draw an inference from the fact that he said he wouldn’t decide whether to take a breathalyzer until he spoke to his attorney (note that he didn’t actually refuse the breathalyzer), but they can’t draw any inference from the fact that he then subsequently asked the police to administer that breathalyzer and they refused:
Drunk driving is different
Oct 20th
Ordinarily, on a criminal law blog, the words “is different” would usually be preceded by the word “death” and an accompanying rant about the futility of the death penalty and the special standards to be applied in deciding whether a State should be in the killing business (I do not disappoint: see next post). However, today we learn that our esteemed Chief Justice uses another “d” word to finish that sentence: drunk driving.
In an odd little dissent from the denial of cert in Virginia v. Harris, Chief Justice Roberts essentially argues that anytime police receive an anonymous tip that someone is driving drunk and they find that person, they should be able to pull them over and conduct an investigatory stop.
The story in Harris essentially was that some woman called the cops refusing to give her name, but said that Harris was driving drunk in a green Altima and wearing a striped shirt. The police found a green Altima in the general vicinity of where she said it would be, and the license plate was “close enough” to the partial description she provided. Importantly, however, Harris did not commit any traffic violations (damn those pesky drunk drivers not providing any bases for a pretextual stop!), so when he pulled over to the side of the road, the cop followed suit and initiated a traffic stop. It is not clear why he pulled over (probably because he was drunk and saw a cop following him) or what the cop initiated a stop for (probably because he was a cop and he could). Anyway, Harris reeked and was arrested.
Not so fast, said the Virginia Supreme Court, relying on Florida v. J.L. SCOTUS, in its wisdom, determined less than a decade ago that anonymous tips, by themselves are worth diddly-squat:
An anonymous tip has a relatively low degree of reliability, requiring more information to sufficiently corroborate the information contained in the tip. See J.L., 529 U.S. at 270. “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’ ” J.L., 529 U.S. at 270 (quoting Alabama v. White, 496 U.S. at 329) (citation omitted).
The indicia of reliability of an anonymous tip may be bolstered when the tipster provides predictive information, which the police can use to test the tipster’s basis of knowledge and credibility. However, for such predictive information to bolster the tipster’s basis of knowledge or credibility, the information must relate to the alleged criminal activity. Providing information observable or available to anyone is not predictive information and can only “help the police correctly identify the person whom the tipster [meant] to accuse.” J.L., 529 U.S. at 272. An anonymous call that provides no predictive information leaves the police without a means to test the tipster’s knowledge or credibility. J.L., 529 U.S. at 271.
And it makes perfect sense. if this were not the case, I could call the police and say I saw Scott walking down the street, carrying an AR-15 and a suitcase full of meth and he told me he was going to go rob some prosecutors. That’d be enough for them to arrest him. Now, I know he’s not actually doing any of those things, but he’d be harassed a bit. Chief Justice Roberts’ response to this, though, is that “drunk driving is different”. Okay, he didn’t actually use that pithy phrase, but that’s essentially what he thinks:
The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases. In a case like J. L., the police can often observe the subject of a tip and step in before actual harm occurs; with drunk driving, such a wait-and-see approach may prove fatal. Drunk driving is always dangerous, as it is occurring. This Court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances.
Riiight. So a cop who is following a driver based on an anonymous tip couldn’t pull him over if the driver was say…driving erratically? No, of course not. That would make too much sense. There’s definitely more harm there than, say, a drug deal gone bad. You know how those cops love to point out to juries that drug dealers are violent types known to carry guns.
I don’t know why he chose to dissent in this case, but one can suspect that perhaps his whole intention isn’t really to distinguish between drunk driving and other offenses, but rather to do away with that pesky J.L. case altogether.
Either way, good thing he was all alone in his dissent. Well, besides that MADD amicus brief, which I won’t link to because this is a respectable, family oriented blog.
Look ma! No hands intent
Mar 24th
Imagine you’re sitting at a dinner table with some friends. You pick up a fork to eat some salad. Suddenly, cops come bursting into your house and arrest you for the murder of your friend who’s sitting across the table. You’re convicted and then the Supreme Court upholds your conviction because you took the first step in a series of actions that could lead to murder.
Welcome to the world of Michael Cyr [pdf]. Except he wasn’t eating dinner with a fork, but rather sitting in his car, drunk, with the key firmly in his pocket. He started the engine with a remote starter and then sat in the driver’s seat, with the key in his pocket. He wasn’t going anywhere, but that didn’t matter to the CT Supreme Court.
So what, you say, he was sitting in the car, with the engine on. It’s reasonable to assume that he meant to drive it drunk. But that’s just the problem. The Supreme Court held that the State does not have to prove intent in cases like this. So he could have been sitting to stay warm, or to sleep in his car. In fact, he could have been trying to avoid driving drunk. But none of that matters. He turned on the engine and sat in the driver’s seat. Therefore, he is guilty of driving under the influence.
The law of DUI in CT is just as ass backwards as this decision. Read from Cyr itself:
So the breathalyzer is racist!
Feb 18th
caption not necessary
Way back in November 2008, when the world was a rosier place, I asked if the breathalyzer was racist. The post was based on a comment by noted DUI lawyer Jay Ruane, who challenged the use of the Intoxilyzer 5000 by the State of CT. The claim was supported by the research of a Dr. Hlastala, who has found that because the lung capacity of black men is 3% less than that of a white man, the results were inaccurate when testing African-Americans.
Perhaps motivated by this claim or the increasing cost of maintaining the I-5000, CT is now moving to another device to measure BAC: the equally crappily named Alcotest 7110 MK III-C. (Who comes up with these names? Seriously? Why can’t they be named BAC test machine 1 and 2?) At a cost of almost $1 million, the BAC TM1 will be replaced by the BAC TM2, at which point we will start investigating the reliability of that instrument (more on that after the jump). But first, a quote from the State Police:
Appellate Court freshens the air
Dec 4th
Distraction?
Rear view mirror ornaments seem to be a big problem in Windham County, CT. Three months ago I wrote about a Superior Court decision from last December, in which the court found that C.G.S. 14-99f(c) permitted cops to pull drivers over because, well, the cop thought that the air freshener was obstructing the driver’s view. I thought it was a pretty bad decision at the time, and wrong on the law, and today I see that the Appellate Court sees this as an area of potential litigation.
In State v. Cyrus (a different case from the one I blogged about), the Appellate Court upheld the granting of a motion to suppress
Repairing Windows: Disorder to Order
Nov 28th
Two and a half years ago, I wrote (rather pithily and ignorantly) about some who were questioning the Broken Windows theory. The Broken Windows theory, which most of you I’m sure are aware of, was posited by George Kelling and James Q. Wilson in a 1982 article in The Atlantic Monthly [pdf version here]. The title was taken from this simple explanation for the theory:
Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside.
Or consider a sidewalk. Some litter accumulates. Soon, more litter accumulates. Eventually, people even start leaving bags of trash from take-out restaurants there or breaking into cars.”
Theories are, of course, the products of fertile imaginations.
Is the breathalyzer racist?
Nov 20th
So claims one Connecticut lawyer, James O. Ruane, son of the famous DUI attorney James J. Ruane. In this most recent DUI case, the younger Ruane filed a motion to suppress the results of the breathalyzer, arguing inter alia:
the lung capacity of a black man is 3 percent smaller than a white man and, therefore, black men’s test results vary from the sobriety standard set by the device.
He said Dr. Michael Hlastala, a lung physiologist at the University of Washington, examined research of other lung physiologists and, based on his studies, has determined the Intoxilyzer 5000 does not effectively test the blood-alcohol content of black men.
“He looked at all the research and came up with the bigger picture and found the common thread,” he said.
Ruane said he intends to have Hlastala testify on Brown’s behalf.
Never one to shy away from a soundbite, he then said this:
“They are KKK in a box,” said lawyer James O. Ruane of Shelton. “We really have some racist machines here.”
The Ruane’s have a fantastic reputation for being zealous advocates for their clients and are the go-to resources for DUI law in CT, so I figured there must be something more to this than just a lawyer clutching at straws. Sure enough, in the comments to the news article, Attorney Ruane the younger explains (after the jump):
Judge gone wild
Jul 14th
Judges do things that are disliked by either party all the time. You take it in stride and you deal with it. There are some actions, however, that leave you so dumbfounded that you don’t know what to say, let alone what to do.
Sometimes they come from so far out in left field, that the only response is .. Only in Texas..?
Take Judge Carolyn Marks Johnson, for example. She was presiding over the DUI trial of Casey Price and things seemed to be going well. Evidence was presented by both sides and the jury was given its charge.
Suddenly, though, after the jury retired to deliberate, something came over the Judge. Perhaps it was ennui, perhaps the sanity switch finally settled into the off position.
While the jury was out, according to Price and her attorney, Paul LaValle, the judge started talking about what the sentence would be when the jury came back with a guilty verdict.
Offensive certainly and undercutting the appearance of impartiality, but not unheard of. Then the crazy-meter really kicked in:
Then the judge decided she wanted Price to immediately take a drug screen urine test and ordered the bailiff to contact the Pretrial Services facility in the courthouse to arrange it.
The judge also said if Price tested positive, the results would be given to the jury, says LaValle.
To say that this was highly improper and had no basis whatsoever is an understatement. It’s bad enough that this judge decided sua sponte that she had the authority to order randon drug testing of a defendant – note that this was a DUI trial – but the bit about giving the results to the jury is preposterous.
Over the vigorous objection of defense counsel and the scared silence of a rookie prosecutor, the Judge ordered the testing.
Then something happened that must have given the defense a glimmer of hope that the Judge would come to her senses: the jury returned its verdict – not guilty.
Of course, when a Judge is far our in left field, nothing will stop him/her. Having already committed to this outrageous course of action, the Judge carried through with it.
Price was required to take the drug test, which came back negative. A further slap in the face – and indicative of the vindictive nature of this judge – was the fact that when the results finally came back a few hours later, the Judge was gone.
So what was the point of the drug test if the Judge wasn’t going to stick around to find out the results?
It seems that the Judge had made up her mind that the defendant was guilty of DUI and if the defendant was guilty of DUI, then surely the defendant must be guilty of taking other illicit substances. Such abuse of judicial power is astonishing and since judicial oversight organizations rarely do more than slap the wrist of offending judges and banish them to undesirable locations, the only thing that might get her actions noticed is a lawsuit:
[Defense counsel] has, however, filed complaints with the Texas attorney general and with the U.S. attorney accusing Johnson of the crime of official oppression, arguing that once the not-guilty verdict arrived she had no jurisdiction or right to enforce custody of Price.
He also filed a lawsuit in state district court Thursday seeking $1 million in actual and another $1 million in punitive damages — from Harris County, the sheriff, the district attorney and Flores, and Judge Johnson.
This was the perfect storm for Price: an overzealous judge and a mute prosecutor. (The prosecutor’s inaction here should not be overlooked. As they like to remind us, they are charged with the administration of justice. There is nothing worse than a prosecutor standing by while a judge eviscerates the judicial system and fundamental notions of justice and freedom. I certainly hope this rookie got a stern talking to.)
Lucky for her, this jury found her not guilty, otherwise who knows what sort of sentence she would have gotten from this judge.
There’s pretext and then there’s pretext
Jun 22nd
Among the many discussions clogging the bandwith of the local listserve this week was one about the validity of a traffic stop based on the police officer’s observation of an air-freshener hanging from the rear-view mirror of a vehicle. (Yes, I recognize that what’s in the accompanying picture is anything but an air-freshener.)
There’s pretext and then there’s this.
The legislature in its infinite wisdom deemed it worthy to make it a traffic offense to have anything hanging from the rear-view mirror of a motor vehicle. Codified in C.G.S. 14-99f(c):
No article, device, sticker or ornament shall be attached or affixed to or hung on or in any motor vehicle in such a manner or location as to interfere with the operator’s unobstructed view of the highway or to distract the attention of the operator.
The underlying intentions in passing this statute remain shrouded in mystery, yet there should be none about its use by law enforcement as a tool in pulling motorists over.
First of all, the statute doesn’t mention whether the obstruction of the view of the operator is a subjective or objective standard. So, boys and girls, what does that mean? That means if anyone (read: police officers) thinks it is obstructing the view, then it is.
Second, having anything hanging from your rear view mirror is giving cops automatic license to pull you over. Take Mr. Gamache for instance. He had:
“a large cluster of air freshener ornaments hanging from the rearview mirror,” “three and a half to four inches tall and maybe an inch and a half or two inches wide” obstructing “the peripheral vision, especially”
The cop doesn’t pull him over, but follows him for about half a mile, until he pulls into the parking lot of a bar. There, he approaches and “immediately noticed a very strong odor of alcohol and observed that the defendant’s
eyes were glassy and bloodshot.”
Mr. Gamache is placed under arrest for DUI.
This is not just a CT phenomenon. From footnote 2 of the opinion:
The reported cases reflect the wide variety of such objects. United States v. Barragan, 379 F.3d 524 (8th Cir. 2004) (air freshener); United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) (golf ball-sized spherical crystals); United States v. King, 244 F.3d 736 (9th Cir. 2001) (parking placard); Moore v. Winer, 190 F.Sup.2d 804 (D.Md. 2002) (medic alert card); Duffey v. State, 741 So.2d 1192 (Fla. 4th DCA 1999) (dog tags); In re Jose Z., 116 Cal.App.4th 953, 10 Cal.Rptr.3d 842 (2004) (Mardi Gras-type beads); People v. Paxton, 255 Cal.App.2d 62, 62 Cal.Rptr. 770 (1967), overruled on other grounds by People v. Tribble, 4 Cal. 3d 826, 484 P.2d 589, 94 Cal.Rptr. 613 (1974) (St. Christopher medal); Thompson v. State, 399 A.2d 194 (Del. 1979) (graduation tassel); People v. Alvarez, 243 Ill.App.3d 933, 613 N.E.2d 290, 184 Ill. Dec. 263 (1993) (cross
hanging on a chain); People v. Mendoza, 234 Ill.App.3d 826, 599 N.E.2d 1375, 175 Ill. Dec. 361 (1992) (fuzzy dice); Commonwealth v. Murray, 27 Mass.App.Ct. 872, 545 N.E.2d 858 (1989) (garter belt); De La Beckwith v. State, 707 So .2d 547 (Miss. 1997) (Masonic emblem); State v. Harris, 839 S.W.2d 54 (Tenn. 1992) (handcuffs).
Most states, however, require that the item hanging from the rearview mirror cannot materially obstruct the view. CT, on the other hand, requires that the view be unobstructed. There is no materially obstruct requirement. Indeed, in Mr. Gamache’s case,
Officer Solak testified that the air freshener did not obstruct the driver’s view to the front or rear of the vehicle, he could reasonably conclude that the operator’s peripheral vision in the right-hand direction was obstructed. These circumstances provided Officer Solak with, at the very least, reasonable suspicion sufficient to briefly detain the defendant and investigate the suspected violation.
The court then goes on to recognize that these infractions could lead to a vast majority of the motor vehicles on the road being pulled over, just the same as cars going 66 miles per hour.
So, in essence, it acknowledges that this is a pretext, but says that’s okay, because technically it is a violation of a statute.
The advice, then, is to not have anything hanging from your rearview mirror, even if it is a parking permit or a handicapped permit. Because that may potentially somehow perhaps in the eye of maybe one overzealous cop be viewed as obstructing.
I’m all for people driving safely and obviously not while under the influence of drugs and/or alcohol. This, however, gives police the power to pull over just about anybody they choose even when there is no visible indicator of erratic driving.
This is a hunch in sheep’s clothing.
Judge for a Day III
Jun 7th
Here’s another installment of “Judge for a day”. The setup, for new readers, is simple. I give you a factual scenario, you tell me what sentence you’d impose as a judge.
The facts are as follows: Defendant is involved in a DUI accident. It is probably his fault. The other car is damaged and the occupants of that car suffer serious injuries, but none that are life threatening or that will result in permanent loss of limbs or functions. The defendant is a young adult with no prior record and good family structure and employment history.
What’s your sentence?
No open container law again
May 7th
For the fifth year in a row, the State legislature did not pass an open container law. Per CT News Junkie, the Black and Hispanic caucuses argued that the bill would just end up discriminating against minorities and give cops another excuse.
So, come to CT, where you can drink and drive (just not drunk and driving).
Breathalyzers under fire
Nov 27th
Almost overlooked in the criminal justice brouhaha was this story about the possibility of hundreds of DUI convictions over the past few years being overturned because of the faulty breathalyzer.
The certified Breathalyzer test used by police in Connecticut is not accurate, some attorneys claimed Tuesday in hopes of urging the state to change policies.
A Superior Court judge ordered the DMV to conduct a hearing as opposing attorneys are trying to prove that all Breathalyzer tests taken by the Intoxilyzer 5000 are inaccurate.
“Their argument is there is no scientific basis to detect alcohol on a person’s breath to alcohol in a person’s blood, and it does not measure alcohol with weight, and we disagree with both claims,” [chief legal counsel for the DMV] said.
Jay Ruane represents three people who lost their licenses after failing the Intoxilyzer 5000 test.
“The Breathalyzer does not comply with state regulations,” Ruane said. “This would force the state and state police and prosecutor’s office to take a blood sample or a urine sample.”
Ruane is one half of CT’s premier DUI attorneys. If anyone can mount a successful challenge to the Intoxilyzer 5000, it is him.
Stay tuned; this could have major implications.
We don’t need no correlation … for punishments
Aug 13th
This Courant story that I highlighted in the Jumpstart earlier today has stuck with me all day. It is a perfect example of what Windypundit and Simple Justice and I were talking about: “Free punishments”.
Consider the example in the article:
West Hartford resident Ethan Frankel thought his underage son was at a friend’s house when the 17-year-old attended a party in April where alcohol was present. His son had already left the party and was in his car with two other friends when the police arrived, said Frankel.
“He stayed there and talked to them and cooperated with the police. A lot of the kids ran away from the party, jumped out windows,” said Frankel. He said his son did not possess or drink alcohol that night, but still received a citation. “A West Hartford policeman told us to just sign the ticket and send in the money and that will be it.”
After his son paid the fine, Frankel said, a notice from the DMV arrived stating the teen’s license would be suspended. The Frankels have since hired a lawyer to look into the matter.
“It just didn’t seem fair. It’s like a trick, we felt tricked because we didn’t know that this would happen,” said Frankel, who fears his auto insurance fees will increase. “I know what they are trying to do and obviously they are looking out for people’s safety, but it needed to be thought out more.”
Lots more after the jump. Keep reading.
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