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.

It’s important to be clear, though: the court’s holding is that it is not a violation of the statute to merely hang an object from the rear-view mirror, or from any place on a windshield. What is illegal is to be distracted by that object, and it doesn’t matter whether you were actually distracted, but that you could be distracted. In the instant case, there was no evidence as to any of the latter and so the dismissal was the right decision.

In doing so, the court rejected the dangerous rationale put forth by the State and the dissent, that the mere possibility that an object could distract itself serves as reasonable and articulable suspicion to pull someone over for a motor vehicle infraction. In essence the dissent, penned by now-retired Justice Vertefeuille (who also penned the shockingly bold State v. Snelgrove which abandoned all pretense that propensity evidence is allowed in sex assault cases), essentially seeks to do the same here, by jurisprudentially permitting pretextual stops (despite footnote 10 which claims to the contrary). Take a look at this language:

As a result, I would conclude that it was reasonable for Mattioli to suspect that the chain could swing into the defendant’s view, thereby causing an  obstruction to the defendant’s view, or distracting the defendant’s attention with its movement. Accordingly, I would conclude that Mattioli had a reasonable and articulable suspicion that the defendant possibly was violating § 14-99f (c) at the time when the trooper stopped the defendant’s vehicle  and that Mattioli could justifiably execute a Terry stop to investigate whether the object did, in fact, interfere with the defendant’s unobstructed view or distract his attention.

Saying that the possibility that an object could distract is saying that an object could distract. Which is saying that it is illegal to have an object hanging from the rear-view mirror or the windshield, which would be exactly contrary to the statute in question.

Anything could give rise to the suspicion that an object might be obstructing or distracting a driver. A GPS device, a handicapped sticker, a parking lot pass, an EZ pass device, an emissions sticker. Do any of these reasonably obstruct a person’s ability to drive? Possibly. But to give carte blanche to the police to pull over any car that has such an object is to condone pretextual stops. And no matter how many times the dissent protests or tries to make it look like it wouldn’t be a pretextual stop, it really would be.

If the dissent had its way, everyone would be stopped. But then again, if you are white haven’t done anything wrong, you don’t have to worry about being hassled by cops, right?

It may be cynical of me to say this, but I believe a major factor in the majority deciding the case the way they did was the relatability of the facts in question: from what I’ve heard of oral argument in this case, several justices joked about the fact that they’ve got objects hanging from their mirrors. It was this familiarity with the realities of driving and normal behavior among a class they could identify with (drivers) that perhaps helped put things in perspective for them. Compare that with the decisions that impact “high crime neighborhoods” and the disjunction between the removed ivory-tower existence of jurists and the realities of every day life are clear. Perhaps this is why we should have justices interpreting our laws who not only are brilliant, but also attuned to the realities of day-to-day life of those who may not be as privileged and fortunate as them.

But I digress. Go forth and hang that awful air-freshener from your rear view mirror. Just don’t look like you’re distracted. Oh, and leave the pot at home.

Some more pics, for the heck of it:

EZ Pass image courtesy.

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:

The defendant stated that he would not do anything until he called an attorney and had an attorney present. [Police officer] Gamache offered the defendant an opportunity  to contact his attorney and permitted the defendant to speak with his father by telephone while his father located an attorney’s telephone  number. The defendant repeatedly stated that he would not do anything without an attorney present. Because the defendant was ultimately unable to  contact his attorney by calling his office at 1:48 a.m., Sergeant Scott Sleeman of the University of Connecticut police department and Gamache witnessed the  defendant’s refusal to blow into the Breathalyzer machine. This was recorded on a form A-44, which Sleeman signed as required by law.

The  defendant later stated that he would take the test, but Gamache did not administer it, stating that it was too late. The defendant also wanted his willingness to blow into the Breathalyzer machine documented before he was released at 2:44 a.m. The defendant’s request to take the Breathalyzer was within two  hours of when the defendant operated his vehicle, and the test would have been valid if Gamache had then given the defendant the test.

The court indicated to Seekins’ lawyer that it would instruct the jury that if it found that he refused the breathalyzer, they could draw whatever inference they wanted. His lawyer asked that the court then instruct them that they could also draw whatever inference they wanted from his willingness to take the breathalyzer. You already know which instruction was given and which wasn’t.

The defendant argues that the court’s failure to deliver the requested instruction deprived him of the opportunity to have the jury draw the inference that he knew he was innocent and was seeking to prove it by submitting to the test. This argument focuses on the issue of a defendant’s consciousness of  innocence in a jury charge regarding consciousness of guilt. Our Supreme Court has stated that a defendant must assert a recognized legal defense to be  entitled, as a matter of law, to a theory of defense instruction.

Accordingly, we conclude that the defendant was not entitled to the theory of defense instruction that he sought because he did not assert a recognized  legal defense at trial.

One side of the coin is tenuous conjecture a permissible inference, while the other (innocence) is not a recognized legal defense.

Bonus legal fiction: Of course, the court didn’t stop there. Not satisfied with so obviously tilting the balance in the State’s favor (yet another phrase!), the Court fell back on that venerable judicial invention, harmless error, which is just fancy talk for “yes, yes, we know you have rights and whatnot, but by Jove! you’re guilty as sin so we’ll be damned to hell before we let you go on a ‘technicality’ /sneer”:

In the present case, the court instructed the jury concerning inferences and circumstantial evidence as to a person’s state of mind. In doing so, as in Pinnock, the court told the jury it must consider all of the evidence. As in Pinnock, the instruction in the present case did not instruct the jury that it could not consider the defendant’s request to submit to the  test. Finally, the court’s instruction in this case did not inform the jury that it could draw a negative inference from a refusal to take a Breathalyzer test.

…

We conclude with fair assurance that the failure to give the requested jury instruction did not substantially affect the verdict.

Well, how could it, when you’ve so conveniently lined up all the conviction ducks in a row (you may roll your eyes here). Look. I get it. Bad people get arrested. Convictions after arrest are a foregone conclusion. But is there need for such chicanery? Can’t we at least pretend to have a fair trial?

Click here for another legal fiction: the standard of proof

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.

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:

The resulting definition that long has been in use has its origins in State v. Swift, 125 Conn. 399, 403, 6 A.2d 359 (1939), an appeal in which this court approved the following jury instruction explaining what it meant to operate a vehicle: ‘‘A person operates a motor vehicle within the meaning of [the] statute, when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.’’

Adoption of that definition established, and subsequent cases confirmed, that the term ‘‘ ‘operating’ encompasses a broader range of conduct than does [the term] ‘driving.’ ’’ State v. Haight, supra, 279 Conn. 551. After a number of decisions made clear that sitting at the wheel of a nonmoving vehicle with the engine running constituted operation; see, e.g., State v. Wiggs, 60 Conn. App. 551, 554–55 (2000); State v. Marquis, 24 Conn. App. 467, 468–69 (1991); State v. Ducatt, 22 Conn. App. 88, 93, cert. denied, 217 Conn. 804 (1990); the question arose whether the definition could be satisfied when a defendant had been seated in a vehicle that neither was in motion nor had its motor running. See State v. Haight, supra, 552. In Haight, this court concluded that it could. Specifically, we held that the evidence was sufficient to sustain a prosecution under § 14-227a (a) when the defendant was found sleeping in the driver’s seat of his legally parked vehicle, with the key in the ignition9 and the headlights illuminated, but without the motor running. Id., 547. We explained: ‘‘The act of inserting the key into the ignition and the act of turning the key within the ignition are preliminary to starting the vehicle’s motor. Each act, in sequence with other steps, will set in motion the motive power of the vehicle. . . . Each act therefore constitutes operation of the vehicle under the definition set forth in Swift.’’ Id., 553.

So, if it’s illegal to sit in a car, with the key in the ignition, without the motor running, Cyr stood no chance. The Court has really outdone itself this time and its illogical reasoning in this case is evident. The Court is jumping through untenable hoops to reach this absurd conclusion. Imagine if this line of cases were pro-defendant. The horror.

What, exactly, would not constitute “any act which alone or in sequence will set it motion the motive power of the vehicle”? Opening the door? No, I don’t think so. Walking to the car? Perhaps.

What this does, in reality, is remove any incentive for people to not drive. Why would you sit in your car when you can be convicted of DUI just the same as if you drove home? I mean, if you can’t even turn on the battery to get some heat, what’s the point?

So what is one to do, besides abstain from drinking? Turn on the heat and sit in the passenger seat with the keys in the trunk? Perhaps, but I wouldn’t bet my law license on it. Leave you keys with you, but you can’t turn the car on. Preferably sit in the back seat and always keep a blanket around or take your chances with the weather.

I think “activist” is a fair term here.

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:

“It will be replacing the Intoxilizer 5000 that is currently used by police departments in the state,” [State Police spokesman] Vance said. “The new machines are better technology. The current machines are seven years old and the cost to maintain them far outweighs buying new ones.”

Vance said the new equipment was selected by a special committee made up of law-enforcement officials and scientific experts. They are now used by police departments in New York and New Jersey.

Right, New Jersey. New Jersey uses the BAC TM2, but only after much controversy. EvidenceProf has the skinny:

that controversy went as follows:

-the Supreme Court of New Jersey had questions about the reliability of that test;

-appointed retired appellate judge Michael Patrick King as special master to investigate the technology and report his findings on it;

-Judge King initially reported that the technology was unreliable in a 268 page report;

-Judge King later reversed himself in a 108 page report, which indicated that despite “minor defects” with the technology, it is more reliable than the Breathalyzer; and

-the Supreme Court of New Jersey found that the Alcotest was sufficiently reliable to be used in drunk driving prosecutions, but only if officers follow certain procedures such as observing suspects for twenty minutes before administering the test.

So CT has moved from one useless machine to another. Bravo. And what of all the thousands of people convicted of DUI on the strength of the BAC TM1?

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 (same court, different judge) in a decision written by former Supreme Court Chief Justice Ellen Ash Peters [Boys and girls, read that decision. That is how a decision is written. Take notes.]

In Cyrus, the defendant was arrested after the police received an anonymous tip that he was driving drunk. The cop didn’t observe anything improper about the operation of the vehicle and the motion to suppress was granted on the ground that the police didn’t have reasonable and articulable suspicion to detain the driver. In a motion to reconsider, the State alleged that the “chain or crucifix” hanging from the rear-view mirror was a second justifiable basis for stopping the car.

The state, apparently confused by the sheer tenuousness of its own argument, couldn’t make up its mind:

In its principal brief, the state took the position that the statute does not require any proof that the view of the operator actually be obstructed or that his attention actually be distracted. It relied on cases in other jurisdictions that have held that even relatively small objects hanging from a rearview mirror justify the minimal intrusion engendered by a motor vehicle stop. In its reply brief, however, the state concedes that our statute does not proscribe ‘‘all items hanging from a rearview mirror’’ but instead requires a showing that the item or object be hung in such a manner as to ‘‘interfere’’ with the unobstructed view of the highway or to ‘‘distract the operator.’’ In its reply brief, the state effectively agrees with the defendant that, on its face, § 14-99f (c) does not make the hanging of an object from a rearview mirror a per se infraction.

This leaves very little for the Appellate Court to do. Given that the State concedes that the legislature did not intend to make an infraction the mere hanging of an object from the rearview mirror, but rather the actual distraction caused by such an object, the Appellate Court has no trouble upholding the verdict.

The Court, however, has laid the groundwork for future appeals in this area:

We leave for another day, on another record, the question of how much of a distraction or impairment of an operator’s vision the state must establish to prove a violation of § 14-99f (c).

Specifically, we need not and do not decide in this case whether a violation of § 14-99f (c) can be  established merely by evidence that an object attached to a car’s rearview mirror was moving back and forth.

Indeed that will be the $1,000,000 question in future cases. What does the State specifically have to prove and, more importantly, how much evidence is sufficient? I would bet that the State would argue that the testimony of an officer that an object was moving back and forth and thus obstructed the view is sufficient. The defense, on the other hand, might be more inclined to move in a more scientific direction. How would you counter this?

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. Unless they’re tested out – directly or indirectly. Which is why I write again. This week brought the coincidental juxtaposition of two stories dealing – directly and indirectly – with the broken windows theory.

The first direct test of this theory comes from some enterprising researchers in the Netherlands. The theory

does not necessarily mean that people will copy bad behaviour exactly, reaching for a spray can when they see graffiti. Rather, says Dr Keizer, it can foster the “violation” of other norms of behaviour.

So the researchers set up an elaborate set of experiments, whereby they could observe if people were more likely to litter if there was graffiti on the walls or litter already on the ground. What they found was that when the alley contained graffiti, 69% of the riders littered compared with 33% when the walls were clean.

That’s not all. To test the central tenet of “broken windows” – that small crime begets big crime – the researchers set up an experiment to see if people would steal in an air of disorder:

The most dramatic result, though, was the one that showed a doubling in the number of people who were prepared to steal in a condition of disorder. In this case an envelope with a €5 ($6) note inside (and the note clearly visible through the address window) was left sticking out of a post box. In a condition of order, 13% of those passing took the envelope (instead of leaving it or pushing it into the box). But if the post box was covered in graffiti, 27% did. Even if the post box had no graffiti on it, but the area around it was littered with paper, orange peel, cigarette butts and empty cans, 25% still took the envelope.

To see the broken windows theory in action, we have to travel almost 6,000 miles to Hartford, CT, where the Community Court has been helping the community since 1998 [an interesting report written in 1999 by the Center for Court innovation which helped found the ComCourt]. This report details the origins of the community court and emphasizes its focus:

Given that the Hartford Community Court serves the entire City, it is designed to maintain close contact with representatives of each of the City’s 17 neighborhoods. Each neighborhood has a problem-solving committee that determines priorities for their communities, including crime and non-crime issues to be dealt with by the police, the Community Court, and other appropriate City departments (e.g., public works).

Which of course brings us back to the topic at hand:

Redefining Behavioral Norms & Expectations The Court is also attempting to influence behavioral norms about low-level nuisance offenses. Court planners were ambitious in lobbying for legislation that expanded the menu of sanctions available in municipal ordinance cases, sending the message that certain forms of disorderly behavior will not be tolerated.

10 years on, the Court seems to have been a success. The Courant has run a few pieces on the Court (calling it Judge Norko’s court – Judge Norko was the first judge and recently returned there) and on the impact of the court implementing the broken window theory.

Community court has made a difference to the city and undoubtedly to the defendants who pass through its doors on Washington Street. It does not yield drama worthy of “Law and Order.” It deals with misdemeanors that might otherwise be dismissed by the courts handling more serious crimes.

Judge Norko’s court metes out justice to loiterers, prostitutes, litterers, drunks, disturbers of the peace and other scofflaws who spoil the quality of neighborhood life.

The court was crowded recently with offenders waiting for their one- or two-day community service sentences. Once they complete the service hours, their records are wiped clean. For that reason, many people declined to give their names when talking about their experiences at the court. Others said they had been wrongfully arrested and planned to fight the charges — an option all defendants have at the court.

But for repeat offenders, the system aims to help them through whatever problems led them to offend in the first place. A drug addict might be led to addiction services; prostitutes can enroll in a specialized counseling program; petty thieves can apply for food stamps at the courthouse.

Kudos to the Court and kudos to Judge Norko. Perhaps Kelling was right. The theory might just work after all. It may be time for other cities and states to follow their lead and start dealing with the little problems that lead to big problems.

The Community Court is the one aspect of the criminal justice system that I am quite happy with. This addresses, on a small scale, the issues that I think are most important to improving law and order in a city: drug addiction and alcoholism. Those across the street in the regular criminal court are not that much different from the folks in community court; they just didn’t have the community court to help them back then.

The relevant question, obviously, is whether implementing a community court has done much for Hartford’s general crime. The answer depends on several factors, but the statistics are what they are: Since 1998, there has been a drop in violent crime (although it had been dropping pretty steadily since an all-time high in 1990). It’s possible that this drop in crime from 1990 onwards can be attributed to tougher sentencing or the elimination of indeterminate sentencing or an economic boom, but to the residents of Hartford, the community court has made an undeniable impact.

For more on the community court, you can read its newsletters here or see pictures from the 5th anniversary celebration here. For more general information, see here.

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):

This motion was one of a series of motions we filed in regards to the potential evidence in the case. The medical research is clear, the Intoxilyzer will overstate the breath alcohol level in certain persons (African Americans and women). I did not conduct the research, I only learned of it last year in another case.

When you combine the biases of the machine for the racial factor, the lung capacity, the conversion from a breath sample to a blood reading, and take into account a person’s natural partition ratio, you can see a possible breath test reading of a person at 0.08 that may actually be as low as .03.

That is a significant overstatement in the results. As you get further away from the standard, the overstatement grows larger in number. The machine treats every person the same, and that may cause it to discriminate against certain segments of the population. In this case, the purported results as mentioned in the article do not match the physical evidence. This was why we started looking for other explanations.

I haven’t read the studies and I don’t intend to, so I’ll take him at his word for now. I’ll follow this case with some interest, though.

From someone who knows nothing about DUI law, but a little about the internet, allow me to give you this piece of advice:

Stay away from the comments on these news sites.

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.

photo credit: aslinth

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.