Taylor’s Speech on “The DUI Exception to the Constitution”
safety in standardization."
- Frederick Crane
following lecture, given to a group of businessmen in Washington
state several years ago, is ADAPTED (with some minor editing) from
the web site of the “Dean” of DUI defense, Lawrence Taylor of Long
Beach, California. It is re-printed here with Larry’s express
permission.] See <www.duicentral.com>.
I hope to convince you
in the next hour, some of you, convince some of you, in the next
hour that the greatest single threat to our freedoms, the freedoms
set forth in our Bill of Rights to
our Constitution. The single greatest threat is not from China.
I don’t think it’s from Afghanistan. I don’t think it’s from the
extremists of the Muslim world. The threat as it has always been
throughout history is internal. It is from within.
I do not think it is from the American Communist party or extremists
on the right. I hope to convince a few of you the greatest single
threat to our freedoms today is a group of American housewives.
They call themselves the Mothers Against Drunk Driving, MADD.
I am fully aware that
some of you belong to MADD. And I am certainly not here to make
fun. Many of you who are in MADD are--have had tragic losses at
the hands of drunk drivers. Others of you here do not belong to
MADD, but you have contributed to MADD and many more of you here,
perhaps most of you here, are in complete sympathy with their goals
and their activities. But I hope to convince you after one hour
that you might want to reassess your view of that particular organization.
And I do not take them
lightly in terms of their intentions. But we know that throughout
history it is the well-intentioned zealots--those who believe strongly
in the rightness of their cause--that are most willing to impose
those ideas upon others. I do not, by the way, for a moment suggest
that we should legalize drunk driving. I'm going to make that clear
at the outset. But it is the true believer who is the greatest threat.
And I should at the outset acknowledge my tremendous debt to Mr.
Eric Hoffer who wrote the book, The True Believer. He was
a longshoreman when I was going to school at Berkeley in the 60’s.
He did not have a high school education, but was teaching Philosophy
at the University of California Berkeley and wrote this tremendous
little jewel of a book that has been terribly influential in my
I would like you to imagine
for a moment that you’ve gone to a friend’s house for dinner. In
the course of a very good dinner you’ve had a couple of glasses
of a good Shiraz and it is now time to drive home. I would like
you to imagine that you are on your way home--and, I will tell you
parenthetically, by the way, that two glasses of wine will not,
in any state, put you under the influence of alcohol or over the
legal limit of .08, or .10 depending on your home state. As you
are driving along the highway, you see ahead of you some flashing
lights and barricades and police cars accordioned across the highway,
with flashing lights directing you into an increasingly small channel.
And, as you go in, you are stopped and two police officers approach
you and stick a flashlight in your face and say, "Breath on
me. Have you been drinking tonight? Please step out of the car."
Some of you say, "Well
that can’t happen in the United States. We have the Fourth Amendment
to the Constitution, which says, 'police officers have to have probable
cause to stop you. They have to have a reason to believe you’ve
done something criminal before they can stop and detain you.'"
And so said the Michigan Supreme Court in the case of Sitz versus
Michigan. The Supreme Court of Michigan said, "The Fourth
Amendment does not permit these types of roadblocks." And reversed
the DUI conviction. They went up to the United States Supreme Court,
unfortunately, and that august body decided 5 to 4 that somewhere
in the Constitution there is something called a DUI Exception. And
in a 5 to 4 vote sent it back to Michigan saying there is no violation
here. What’s interesting is the Michigan Supreme Court; bless them,
for there are fewer and fewer of them, said, "Well, if you
will not protect our citizens in the state of Michigan from this
kind of police conduct, we will. And we again reverse the conviction
and this time we rely upon our own state constitution."
The state of Washington
and three other states have followed suit. In 46 states today it
is legal to stop you for absolutely no reason other than the fact
that you are driving a car. The only purpose is to check you out
for drunk driving.
You have been stopped,
you have been taken out of the car and you have been handcuffed.
You are placed in a police vehicle and you are on your way back
to the police station. About this time you’re probably wondering--I’ve
seen this TV show somewhere--they’re supposed to read me something
aren’t they? Something called Miranda? Aren’t I supposed to have
a right for an attorney? Don’t I have the right to remain silent?
That becomes an issue because, as you’re being driven to jail, the
officer's asking you all kinds of questions. Like, "Where have
you been?" "Where are you coming from?" "How
much have you had to drink?" "How long ago was it?"
"When was the last drink?" "Do you feel the effects?"
"Where are you now?" "What time of day is it?"
Well, again, a state
Supreme Court said, "Hey, this person’s handcuffed and under
arrest, you’ve got to advise him of his constitutional rights under
Miranda." And again, it went to the United States Supreme Court
in the case of Berkemer vs. McCarty in 1984. The Michigan
vs. Sitz case was 1990, by the way. In Berkemer vs. McCarty,
the United States Supreme Court fooled around for about 20 or 30
pages of opinion and finally concluded that there was a DUI
exception to the constitution. And that, "Well, we
really can’t tell you when you’re supposed to give Miranda in a
DUI case. We do know that it is later than in other types of criminal
investigations." So, U.S. Supreme Court has told us we don’t
know when Miranda is supposed to be given in DUI cases, but it is
clearly some time later.
Well, about this time
you arrive at the police station and the officer takes you into
a room and there is this little metal box about the size of an IBM
typewriter. Some of you may remember those. And he says breathe
in here. And you say, "Wait a minute, I have a right to
an attorney. Can I make a phone call?" "No", says
the officer. And, he’s right. However, this denial of access to
an attorney is only applicable in DUI cases. He’s right. You’re
about to give the most incriminating evidence possible to give in
a DUI case and you have no right to seek the advice of an attorney
as to whether to breathe into that machine or to agree to submit
to a urine or a blood test, in the
And I’m only touching
on a few of the problems. In California, for example, and in many
other states, the law says you have a right to choose between breath,
blood and urine. It is your choice. We have discovered in California,
however, through our own Supreme Court that when the officer doesn’t
give you that choice--just makes you breathe into that little black
box--that’s okay. They’re not supposed to do it, but there’s no
remedy. There’s nothing that can be done about it, so says the California
Supreme Court. You can’t suppress the evidence. Police are not stupid,
so now about half of them simply don’t give you that choice, since
nothing’s going to happen if they don’t. So, you find out that you
have no right to consult with an attorney.
Your next thought is,
"I don’t know if I trust that little machine. Maybe I should
refuse to breathe into it. I think I’m okay because, because as
I remember, there’s a Fifth Amendment right in the United States
Constitution that I don’t have to incriminate myself, and, not only
that, but if it goes to trial, the prosecutor cannot even refer
to the fact that I’ve exercised my Fifth Amendment right."
The South Dakota Supreme
Court, in Neville vs. South Dakota agreed a few years ago
and they said, "This gentleman refused to incriminate himself
by breathing into that machine and it was reversible error for the
prosecutor to comment upon that to the jury and tell them that he
refused, because he knew he was guilty." Now you’re probably
ahead of me, guessing the outcome here. It went to the United States
Supreme Court. The United States Supreme Court, in South Dakota
vs. Neville in 1983 said, "There’s a DUI exception
to the Fifth Amendment. There is no right to refuse and
the prosecution can comment freely in trial upon that refusal."
And they sent it back to South Dakota. And South Dakota said, "If
you in Washington, DC will not protect our citizens, we will
rely upon our own state constitution," and they
reversed it again based upon the South Dakota constitution’s provisions
against self-incrimination. Unfortunately, that’s the last story
I have of the State Supreme Court exercising protections of its
So, you decide you’re
going to breathe into that machine. And you do. You breathe into
one end and out comes a piece of paper at the other end that says
your blood alcohol concentration is 0.13.
Now, at this point, in most states, the police are supposed to give
you a choice as to whether you want urine or a blood saved as well,
so that you have something for your defense attorney to examine
with an independent analysis rather than rely upon a crime lab of
that very same law enforcement agency.
This is called the Trombetta
Advisement. They don’t give it usually. They’re supposed to, but
if they don’t, no harm, no foul and so it is rarely done. It’s called
the Trombetta Advisement because a few years ago, in 1984, a defendant
in California said, "Wait a minute, that machine captured my
breath and minutes after analyzing it, just purged it into the room
air. It could have saved the breath. (Very easy to do. Costs about
$1.50 per sample utilizing a special kit to just preserve it.) It
could have saved the breath and then my attorney could have had
it analyzed by a separate laboratory by a more exact and reliable
testing method. You have destroyed evidence that I could have analyzed
and may have been exculpatory."
This went to the United
States Supreme Court and in 1984 in the landmark case of Trombetta
vs. California, the Supreme Court found yet another DUI
exception to the Constitution and said "Well, it would
be nice if they saved the breath, but there’s no obligation to do
so. And, destruction of that evidence, unless you can
prove that it would have been exculpatory, has no impact."
So, today it is all right to destroy the evidence after you get
your own results and make sure the defense doesn’t get access to
Finally, you’re rather
outraged because you know you’re not under the influence. You know
you’re not over .08, which is the California standard and the standard
in about a third of the states today. And in 5 years will be the
standard in all of your states because the federal government is
telling you that’s what it’s going to be. And the Mothers Against
Drunk Driving are ensuring that happens.
You decide to go find
one of these people completely without any social value and ask
them to represent you in trial. You want to tell a jury of 12 of
your peers what happened. You want to give your version. So you
tell your attorney, "I want a jury trial." Your attorney
says, "I am really sorry, but you can’t have one. You see we
don’t have jury trials for DUI cases in this state, because in 1989
the United States Supreme Court in Blanton versus North Las Vegas,
a DUI case, said, "There is no Constitutional right to a jury
trial in a DUI case, so long as it’s not punishable by more than
six months in jail."
So, in several states
today, including Nevada, Louisiana, New Jersey and Hawaii you have
no right to a jury trial. And the Mothers Against
Drunk Driving and a few other organizations are doing everything
they can to make sure there are no jury trial rights in other states
All right, we’ve taken
a look at what happens to you as you go through the process in terms
of any Constitutional rights you thought you had. And if you’d been
charged with burglary, murder, rape, you would have had those rights.
At least for now, until THOSE rights are taken away, utilizing the
same “necessity” argument used for DUI prosecutions.
Now, let’s take a look
at what the crime or DUI really is. What is the offense you just
committed? I will tell you, that when I have clients come in the
door, almost none of them know what the crime is, and probably half
of them don’t know if they’re guilty or not.
In the beginning there
was a law. That law said thou shalt not drive under the influence
of alcohol. Period. It was a good law. We need it. It addressed
the problem. It was fair. Unfortunately, there were some defendants
being acquitted, after they sought trial with a skilled trial attorney.
And so an inventor came along and said, "Well, I’ve got this
super neat little gizmo here. I will call it the Breathomatic. It’s
a box and if you breathe in this end, out the other end comes this
piece of paper and it’ll tell you exactly how much alcohol is in
the person’s blood, which is telling you about impairment of the
Well, that sounded pretty
cool. And so legislators and prosecutors and MADD approached the
American Medical Association and said, "We’ve got this great
machine. Can you tell us at what level of alcohol concentration
a person is impaired in their ability to drive a vehicle?"
And the AMA said, "After extensive research it is 0.15 grams
percent." This was about 30 years ago... 0.15 percent.
Well, that was okay for
a while, but a whole lot of people STILL were not getting convicted.
Part of the problem was there was only a presumption that
you were under the influence. In other words, the jury could accept
if you were over a .15 that you were under the influence, or they
could reject it and say other evidence shows that he wasn’t under
the influence. Second problem is that a lot of people were coming
in at 0.13, 0.14, 0.12. Third problem is, you were 0.15 at the time
of the test in the station, but what were you an hour earlier when
you were driving?
So, those organizations
went back to the AMA a few years later and said, "Are you sure
about that 0.15. Couldn’t it really be a little lower?" And
the AMA said, "You know, you’re right. It’s a 0.10." Now,
the human body, to my knowledge, had not changed in those 20 years,
but certainly the American Medical Association’s research did. And
replied to considerable political pressure. So, now jurors were
told that they could presume guilt if there was a .10%. A
dramatic change in “the number”.
were still skilled criminal defense lawyers out there and there
were still acquittals, and the Mothers Against Drunk Driving, a
very effective, very well financed organization, as some of you
here know, was very successful by working through a federal agency
called National Highway Traffic Safety Administration in putting
pressure on states to FURTHER drop it to .08%. And I indicated earlier,
about a third of the states have done exactly that, the others are
Well, there’s no question,
there are fewer acquittals now and the prosecutors were increasing
their conviction rate. But, there were still some acquittals. And
so MADD and the other federal agencies decided to change the law
further. More accurately, MADD came up with another law. This is
called the per se law. If we can’t convince jurors
that a person is under the influence over .08 we can make it a crime
to merely drive while having a BAC over .08. The crime is being
over .08 per se. We don’t care if they’re intoxicated or
impaired. If the person has a BAC level over .08%, or .10% blood-alcohol
perhaps, in your state; that is a crime. Not only that, let’s
keep the original law. So, now we give the prosecutors two
shots to obtain a conviction whenever a test is taken by a suspect.
If they can’t convince the jury he’s under the influence, well then
maybe they can convince them he was over .08, even though he was
not under the influence and visa versa.
Well, this once again
certainly increased the conviction rate, and the number of acquittals
continued to drop. But there was a problem. Acquittals were
still happening. New, creative and detailed attacks began
challenging the technology involved in breath alcohol analysis.
The gist of the attacks by criminal defense lawyers was based on
the machine, to put it simplistically, assuming that you are an
average person. Okay? It is measuring the breath. It is
supposed to be measuring the alcohol in the vapor of the alveolar
air in the deep lungs that you expel, and is analyzed in the machine.
The machine is telling you how much alcohol is in the blood. Not
in the breath. There is what we call a partition ratio. To
put it simplistically, the machine has a very primitive Z80 computer
inside it. There are different machines, but the computers will
all report, "Well, if you’ve got this “result” from the breath,
there must be 2100 times as much in the blood!”
Using a multiplier inside the little computer, that’s what it prints
But the computer is assuming
that your partition ratio is 2100. Problem? Very few people have
a partition ratio of 2100 to 1. It ranges anywhere from about 1100-to-one
up to 3500-to-one and higher. And there is no way of knowing at
the time of testing what your partition ratio was because medical
studies have shown that the partition ratio changes within an individual
all the time. One person is going to be very different than the
person sitting next to him. Your partition ratio tomorrow is going
to be different than what it is right now at this hour. Well, what
does that mean? It means if you blow, let's say, a 0.11 and
you have a 1300-to-one partition ratio, that 0.11 is really 0.07.
You’re innocent. Your crime, unfortunately, was not
Well, a few defense attorneys
were able to master the technology involved and attorneys usually
go to law school because they failed physics, chemistry and so on
in college. But, a few of these defense attorneys were actually
learning how this machine worked. And they thought, "Whoa!
There’s an assumption here, 2100-to-one," and they cross-examined
the expert from the law enforcement’s crime lab and said, "Isn’t
it a fact?" And the guy would hem and haw and so on, and say,
"Well, yeah." Acquittal. The 2100 to 1 ratio
issue is still a viable defense in a lot of states.
Not in California anymore.
In California, our Supreme Court, which is slightly to the right
of the U.S. Supreme Court, said, "No, not really because see
what you’re doing is you’re measuring the alcohol on the breath.
You’re not measuring the blood directly, you’re measuring on the
breath, and therefore we don’t have to have a partition ratio."
Now, you probably don’t appreciate the complete idiocy of that statement,
because the California Supreme Court did not understand the technology
involved. And it was an eight-to-one decision. The dissenting justice
said, Joyce Kenner had said, "Do you realize that we just created
a new crime called driving with “alcohol on your breath”?
And she was absolutely right. That’s what the Supreme
Court of California did.
Result? If I now ask
a law enforcement crime lab expert on the stand in front of a jury,
"Isn’t it a fact that the partition ratio you used assumes
an average of 2100-to-one?" I will be held in contempt of court
and jailed by the judge. If I try to bring out the truth, I will
be jailed as a criminal defense attorney. I’m not exaggerating.
And I’m telling you that this is true in approximately four other
states. I have lectured in 36 states to lawyers' groups, bar associations,
and so on, so I’m somewhat familiar with the different states and
their different approaches. All of which are becoming much more
standardized as the Federal Government continues to step in.
Well, that made things
a lot easier for prosecutors to convict in California. Again, the
conviction rate continued to go up. It became more and more difficult
to defend people accused of drunk driving. I did not say
"guilty". Accused of drunk driving. Well, but
there’s still lots of defenses left, because, as I will I hope I
will have time to get into, this machine is, to say the least, unreliable.
But one of the problems is called retrograde extrapolation.
And I alluded to it earlier.
And that is, well it’s
all well and good, he was a 0.11 at the time that he breathed into
the machine at the police station. But it’s not against the law
to be over a 0.08 in a police station. It’s against the law to drive
a car over 0 .08. What was it at the time he was driving?
Well, that caused prosecutors
a lot of problems. And so most states, almost all states, passed
a new law with the assistance of the Mothers Against Drunk Driving.
And that law said, "Any test within three hours that results
in a blood alcohol reading, it shall be presumed that it was the
same at the time of driving." Even though we know absolutely,
as a matter of science, fact, that that is not true.
Well, that again raised
the conviction rate, except it was a rebuttable presumption. In
other words, you could introduce evidence that that simply wasn’t
true. And so now, to make a depressingly long story short, some
states are beginning to pass laws saying that the crime is having
over .08 at the time you breath into the machine. And they don’t
care what you were when you were driving the car. Notice how we’ve
gotten further and further and further away from the evil we were
trying to cure. And that is: "Were you impaired by alcohol
when you were driving your car?"
Okay. Let’s take a look
at this machine. The vast majority--in most states there is no urine
test, and if there is a blood test, you’re usually not going to
have access to it for later, independent analysis. In the vast majority
of cases, because it’s cheap, easy and fast, you’re going to be
breathing into one of these machines. Let me just give you a real
quick rundown on breath test device “theory”. Incidentally,
the book I wrote on Drunk Driving is about 1200 pages in length,
of which nearly 400 pages are just on the technology of breath machines,
so this is going to be very cursory. But, I think, for purposes
of illustrating some of the problems, it will help.
Basically just taking,
as I said, the alveolar air, injecting it through a tube into a
sample chamber and capturing it in that chamber. It’s a little 81
cc tube. Nickel-plated in most of the machines. And, by the way,
there are a lot of different manufacturers of these different machines,
different types, but we’ll get into that in a moment. These machines
rust and corrode inside. The sample chamber gets pitted, it absorbs
or retains in these “pockets” alcohol from previous subjects, and
so on. But let’s just say for purposes of theory it captures a sample,
a given volume of lung air, alveolar air. At one end it has a projector
that projects infrared energy, infrared light, a beam through the
chamber. The light passes through your breath that is passing through
that little chamber. Now, at the other end of the chamber is a detector
that “receives” the light from the other side. It then measures
how much of this infrared energy gets ABSORBED and does not reach
the other side of the chamber, where the detector is located.
It “measures” this DIMUNITION of light by comparing the original
intensity of the light to the diminished intensity of the light,
multiples it by 2100, and spits out “a number”.
Now the theory of infrared
spectroscopy, as applied to DUI cases, states that there is a part
of a compound called the methyl group and that any compound
containing the methyl group, will absorb the energy from this light
wave that is traveling at 3.61 microns. The theory further holds
that one of those compounds is ethanol, ethyl alcohol.
Molecules of ethyl alcohol contain the methyl group as part of its
structure. It is resonant with this particular frequency of light
wave. So, the more ethyl alcohol in the sample chamber, the more
energy is going to be absorbed, the less will get through to the
receptor, the higher the blood-alcohol reading will go. Actually,
the CONCEPT is fairly simple. Except, again, it is absorbed not
only by ethyl alcohol, but also by the methyl group in any
similar compound. In other words, it is a stupid machine.
It does not differentiate between ethyl alcohol and any other compound.
It is what we call "non-specific" for ethanol. Any compound
on your breath that contains the methyl group will be detected as
alcohol, and reported as alcohol. If you happen to have 32 different
compounds containing the methyl group on your breath, it not only
will report them all as alcohol, it is cumulative. It will add all
of those, including any ethyl alcohol, and then report it in “a
number” as ethanol.
So, do any of these methyl
groups exist in the human breath? There are a number of scientific
studies--one of which indicates that there are 102 different compounds
found in the human breath that can contain the methyl group. So
what you are getting is not necessarily alcohol. What you are getting
is some unknown cumulative reading of any of these compounds on
your breath. If you had been painting a house yesterday, today you
would be registering alcohol on our breath machine. If you had been
using solvents, or thinners or glue or anything like this, same
result. If you had pumped gasoline into your car and inhaled any
of the fumes, hours, even days later, you could be breathing out
vapors containing compounds with the methyl group in it.
Now the second major
problem I’ve already mentioned or alluded to, and that is the partition
ratio. It is becoming less of a problem as the legal system chooses
to pass laws or make rulings that outlaw, essentially, science.
A third, and this is
just the last example I will give you, is called the mouth alcohol
phenomenon. The machine assumes that the alcohol, or whatever
it is measuring comes from your breath, and that’s why it's multiplying
by 2100. Obviously, if it is getting alcohol directly from your
stomach or your throat or your mouth, it’s going to fool the machine
and the results are going to go extremely high. It would take a
minuscule amount of alcohol in your mouth, throat or stomach to
fool the machine and create a pretty high BAC reading. This is called
the trapped alcohol or mouth alcohol problem. So,
if for example, you burp or belch, and any gases from your stomach,
or you have reflux condition, or a hiatal hernia, and any of those
gases or liquids “come up” your esophagus, and remnants of the saturated
gas will stay there for about 15 to 20 minutes before saliva dissipates
it. It will be breathed into the machine, if you are being tested.
The machine will report an unknown amount, which will be falsely
high. It does not mean you’re under the influence. It does not mean
you’re REALLY an 0.08. It’s simply that you had alcohol in your
mouth, your throat or your stomach. The police officers are supposed
to guard against this by observing you for 20 minutes. They are
supposed to sit down and watch you for 20 minutes before giving
the test. In all the years that I have been defending, or for that
matter prosecuting, DUIs, I don’t think I’ve ever encountered an
officer who actually did that. They are far too busy to fool around
with things like that. They will check the box, and SAY they did,
but it does not happen and I’m not sure they could even tell if
a belch DID happen. The 20-minute OBSERVATION period is a safeguard,
but one that the police ignore.
So, these are just three
examples. There are hundreds of things wrong with these machines,
not just theoretically, but applied to the machines themselves.
How accurate are they? They’re accurate--they're close enough
for government work. In California, for example, the standards
of accuracy---by law---are that you MUST have duplicate analysis
(two sequential tests) and each result must be within 0.02% of the
other. That means you'd have to take two tests. If the first one,
just to use a number to make it mathematically easy, if the first
one is 0.10%, the next one has to be 0.08, 0.09, 0.10, 0.11 or 0.12.
Think about it: a 40% range of error is scientifically accurate
in a case where the State must prove your guilt beyond a reasonable
doubt. In most states, a 40% range of error is
considered to be “acceptable accuracy”. Good enough for GOVERNMENT
The people that make
these machines---and I have never referred to them as instruments---
the people that make these machines keep coming out with new models.
They’ll come out with a model and call it “state-of-the-art”, “foolproof”,
“fail-safe”, and then two years later they come out with a new model
that takes care of all of the problems found to have existed with
the first model. Meanwhile 100,000 people have been tested
on the “old” device (which is quietly “retired” from service), yet
none of those convicted can re-open their guilty pleas, or undo
the damage done to their lives and careers by the MACHINE.
Then a competing breath manufacturing company comes out with a new
and improved model that takes care of the “problems” with their
competitor’s new model. And this is a fairly regular battle of the
manufacturers, year after year.
If you look at the warranties---it
is sort of interesting---none of the breath machine manufacturers
warrant these things to actually test blood alcohol.
If you read the warranties, there is no warranty for “fitness for
a particular purpose”. That's a legal phrase. Basically it means
they don’t want to get sued by somebody if there is a false reading.
So they will not even warrant these things to do what they’re
selling them to do. The standard warranty, for a total breakdown
of the device, is about one year--about what your toaster is warranted
for. Similar warranty periods. The difference between the
two machines? Your toaster is warranted to toast bread.
Okay. Science and
law. Right off the bat we’ve got a problem. Science,
if you can define it, would be, I would say, the systematic pursuit
of truth. The objectives of law are very different.
It is a governmental mechanism for imposing order, structure,
predictability, security, and confidence of the public in its institutions.
The law is not concerned with truth. It is important to understand
the entire DUI field.
To understand it you
must understand the difference. Hundreds of years ago a guy named
Galileo said, “the universe is really not FLAT, the way the Vatican
says it is”. You saw what happened to Galileo. The government,
for saying such things, based on SCIENCE, executed him.
Have we progressed? Not if a lawyer tries to tell the truth to a
jury about the LIMITATIONS of a breath machine, and, in doing so,
is thrown in jail for properly and zealously representing his/her
client. I would say we have not come all that far since Galileo’s
Now lastly, as to what
you’re looking at as you imagine going through these different procedures,
I would just very briefly, as to punishment, rather than
going through all the horrors of DUI punishment today, complexities
of punishment today, other than to say in California you’re better
off as a first offense burglar or for committing felony grand theft
than you are as a first time misdemeanor DUI offender. At least
as a felon, you can request “first offender treatment”, or possibly
“conditional discharge” for some fairly serious crimes, but such
a “record-clearing” solution is UNAVAILABLE for all
In closing, I will comment
on two things. The Mothers Against Drunk Driving have been very
active recently in trying to get "Scarlet Letter" laws
passed. They almost did it two months ago in California. Came close.
The Scarlet Letter law is: if you are convicted of a DUI, you must
have a big bright red license plate saying the big scarlet letter
“DUI” on it. Your wife has to drive it. Your kids have to
drive it. You would not be able to rent a car, whatsoever,
because the tag would be lacking your “badge” of dishonor. You must
carry that brand on you, says MADD. It must remain with you for
as long as you drive a car for whatever period of time. It did not
pass last time. But, as MADD knows, there is NEXT YEAR.
The other comment is
about a case many of you may have heard about in North Carolina.
Now, we have never executed people, we’ve never, until recently,
given the death penalty for a crime unless there was pre-meditation
of the offender. Intention to kill and time to reflect upon that
and then to carry out the plan and cold-bloodedly murder. Some exceptions
have been added: Killing a police officer; multiple murders; murder
by torture; murder for ransom. In North Carolina this year there
was a DUI case involving an accident. Another person died.
It would, in any other case, in another state, likely be a vehicular
manslaughter case. It was not an intentional act.
It was negligent; it may have been reckless. And the prosecutor
sought the death penalty. The death penalty.
Fortunately, they didn’t get it. My understanding is that the defendant
was convicted of MURDER and only received LIFE IN PRISON, but I
So, in the DUI field
you have unfair procedures. You have false evidence. You have wholesale
erosion of rights. But, some may rationalize, “at least the DUI-caused
fatalities are falling correct?” If you believe the statistics
from the Mothers Against Drunk Driving and National Highway Traffic
Safety Administration, that would be correct. If you look at it
more closely, you’ll find they start using terms like "alcohol-involved",
"alcohol-related", and those statistics start changing
to justify what they have been doing for the last few years.
The numbers have been gerrymandered so that if ANY person involved
in ANY way in the “accident” had ANY alcohol in his/her system (even
0.01 per cent), MADD counts that (and our federal government counts
that) as an “alcohol-related” death.
So, what is happening
in the DUI field? Same thing that’s always been happening. The real
danger to your lives, to my children and your children’s lives,
are from recidivists. Statistically overwhelmingly, the risk lies
with recidivists. People that have driven drunk repeatedly.
Which is a relatively, despite what MADD says, a relatively small
percentage of those who are arrested. Problem? How do you reach
those people? Can you affect the incidence of death caused by DUIs
by increasing the punishment? As to those recidivists, and I tell
You are trying to use
the legal system to address what is at least a medical, perhaps
psychological, but in my opinion, absolutely a genetic problem.
Now that sounds like an easy cop-out for me. I wrote a book about
15 years ago called Born to Crime, The Genetic Causes of Criminal
Behavior, so I suppose that I am a little bit biased, but I’m
basing what I say upon defending thousands and prosecuting thousands
of DUIs and I’m absolutely convinced that it is genetic in origin.
And I think the studies, and one of the chapters of that book Born
to Crime was devoted to alcoholism--the studies are overwhelming.
If my own experiences with clients have not been, those studies
certainly are. And so long as you have a system that is geared to
behavioral modification--that is, “we’re going to change his drinking
habits by putting him in jail for six months”, or deterrence—“we’re
going to stop other recidivists from driving drunk because of the
deterrent effect”, then you’re fooling yourselves.
Do I have an answer?
No, I don’t. But I know that system isn’t working, and in the meantime
you are destroying the Constitutional rights that we’ve all previously
enjoyed. Since 1979, when Candy Lightner started MADD, those
all-important rights have taken a blood bath.
Again, the legal
system is not concerned with truth. And it may come as a
shock, but it is not. It is concerned with order, stability.
If the legal system were seeking truth, the government would not
falsely assume that there’s a 2100 to 1 partition ratio. If the
legal system cared about truth, they would not conclusively presume
that your blood-alcohol was the same “number” three hours earlier,
when the government knows it is not. If they sought truth,
they would recognize that these machines are non-specific, among
other problems. The legal system is not concerned with justice,
either. It is concerned with expediency, not justice. If they were
concerned with justice, they would not permit roadblocks. They would
not presume guilt. They would not pass laws refuting scientific
I just said, "They
would not presume guilt." That was another DUI exception
to the constitution that I didn’t tell you about. One other thing
the police officer does after he has you breathe into that machine,
if you’re over .08, is that he immediately grabs your license
and confiscates it. This is another contribution from MADD.
Immediate seizure of the license in about 48 of the states today.
On the spot. Justice administered by the police officer. No judge.
No jury. You are presumed guilty. Your license
is confiscated and you are given a notice of suspension. What happened
to the presumption of innocence?
Well, it’s that DUI exception
again. You are presumed guilty.
make matters even worse, about 5 years ago a California “proposition”
was placed on the ballot. The question: “Should we, the people
of California, eliminate our STATE constitutional rights, and only
retain those constitutional rights REQUIRED to be kept by the United
States Constitution?” Amazingly, after a well-financed television
campaign by ultra-right groups who found the Constitution to be
a shield for criminals, the people of California voted to NOT HAVE
ANY STATE CONSTITUTIONAL RIGHTS! For the first time
in recorded human history a democratic group abandoned hard-earned
rights and legal protections that their forefathers has sweated,
bled and died to obtain.
to America! Welcome to “the land of the free and the home
of the brave.”