Constitutionality of "Per Se" Under the Influence Laws?

[LibertyOrDeath]

What is the name of your state? CA

I was cited for DUI back in May after a CHP officer clocked me going 75 on a 65 mph stretch of freeway at 1:00am on a Saturday morning. The officer smelled alcohol in the car, requested I take "FSTs" (which I foolishly agreed to, not knowing most officers only use them to gather further evidence for an arrest they're already planning on making), and administered a P.A.S., showing results of .11 and .12 (which I'm sure also colored the so-called "sobriety test" results.)

An Intoxilyzer test at the station came back with identical results of .11/.12

Since then, I have successfully challenged the "Per Se" suspension at the DMV on the grounds of a violation of Title 17 of the California Code of Regulations. The officer had failed to observe me for 15 minutes prior to administering the Intoxilyzer test, during which time I had burped.

The criminal matter is still before the Superior Court, though I fully expect an aquittal if this goes to trial.

I was charged with violations of both 23152(a) and 23152(b) on the complaint. The 23152(a) charge is totally unfounded, since my driving was impeccable and showed absolutely no signs of intoxication. True, I was over the speed limit, but that by itself does not prove either intoxication or unsafe driving. I also can demonstrate that officer's observations on the "FSTs" were utterly biased and will utterly destroy his credibility on the stand if it comes to that. Why?? Ditto symptoms -- VERBATIM IDENTICAL -- appear for the same field sobriety tests on 7 past DUI reports he's written. As for the 23152(b) charge, if the prosecution's evidence is not suppressed prior to trial because of the Title 17 violation, I fully expect the jury to see the sheer idiocy of judging intoxication on a test card readout.

I am seriously considering a lawsuit against the state on the grounds that the "per se" statute of 23152(b) is unconstitutional since it is patently discriminatory against individuals who, like myself, have a high tolerance to alcohol. The statue should be required to prove actual impairment, without any "presumptions" based on BAC. Would any attorneys on this site be interested in assisting my case on a pro bono basis?

As you can tell, I'm very mad about this unjust law and am prepared to fight this all the way to the US Supreme Court if necessary.

Finally, I should add that I do not condone drunk driving, defined as driving while IMPAIRED by alcohol (as made illegal by the 23152(a) statute.) However, saying a .08 BAC "proves" impairment is discriminatory, particularly in a case where there's otherwise absolutely NO credible evidence of impairment.

Thanks in advance for any help you can provide in getting this MADD law repealed.

[ptlmejo]

Thank you for the alcoholic's point of view regarding the Operating while Intoxicated laws.

Read up on your case law and I'm sure you'll find that the points you are bringing up have been challenged and shot down over and over again.

[CdwJava]

Originally Posted by LibertyOrDeath

and administered a P.A.S., showing results of .11 and .12 (which I'm sure also colored the so-called "sobriety test" results.)

Actually, if you had listened to the officer provide the admonition, you would have found that the PAS IS one of the FSTs. So, it "colored" the result the same as it would have had you stumbled while trying to walk the 9-step-and-turn test.

An Intoxilyzer test at the station came back with identical results of .11/.12

Good call by the officer then ... apparently he was right.

Since then, I have successfully challenged the "Per Se" suspension at the DMV on the grounds of a violation of Title 17 of the California Code of Regulations. The officer had failed to observe me for 15 minutes prior to administering the Intoxilyzer test, during which time I had burped.

Goodie for you. Though I suspect that there was another reason for the "successful challenge" and that it wasn't because you claimed to have burped. Maybe because he admitted that he had not observed you constantly in that time frame ... or, he did not show for the hearing.

The criminal matter is still before the Superior Court, though I fully expect an aquittal if this goes to trial.

Expect all you want. Hopefully you have a nice high-priced DUI expert attorney at your side. Without one, you don't stand a chance of acquittal.

I was charged with violations of both 23152(a) and 23152(b) on the complaint. The 23152(a) charge is totally unfounded, since my driving was impeccable and showed absolutely no signs of intoxication.

Most drunks say that. However, if you read CVC 23152(a) and related case law, nowhere does it say that bad driving has to be observed - only that you are under the influence of alcohol. So this argument is moot.

True, I was over the speed limit, but that by itself does not prove either intoxication or unsafe driving.

You are right. But "unsafe driving" is not an element of DUI per CVC 23152(a).

I also can demonstrate that officer's observations on the "FSTs" were utterly biased and will utterly destroy his credibility on the stand if it comes to that. Why?? Ditto symptoms -- VERBATIM IDENTICAL -- appear for the same field sobriety tests on 7 past DUI reports he's written.

Interesting ... but since we are trained to write in a formulaic fashion ... and the CHP do MANY DUIs, unless you every error by the suspect is identical in each report, I doubt this will hold a lot of weight. Unless you ALL estimated 30 seconds at 40 seconds, took 10 steps instead of 9, etc., then I don't see where this is going to matter a whole lot.

Most drunks have similar characteristics, so its not surprising that the reports will at least be similar. However, I would agree that it is bad if they all have the suspects making the same identical mistakes in each FST.

As for the 23152(b) charge, if the prosecution's evidence is not suppressed prior to trial because of the Title 17 violation, I fully expect the jury to see the sheer idiocy of judging intoxication on a test card readout.

If your attorney wants to, they will have to produce the certification and test results for the machine. Which, chances are, they are already on file with the court anyway. And if you want to challenge the veractiy of the machine, get ready fdor an expensive court case ... and a very good chance of a loss because these things - at least in CA - are meticulously maintaned and tested. Ours is done every week.

I am seriously considering a lawsuit against the state on the grounds that the "per se" statute of 23152(b) is unconstitutional since it is patently discriminatory against individuals who, like myself, have a high tolerance to alcohol.

Ha! Okay ... I DO hope you have a lot of cash sitting around to go tilting at windmills!

Do you really think you have a right to go about on the roadway impaired? What on EARTH makes you think that because you are not a staggering, gibbering idiot at a particular moment that you are NOT impaired?!

When a person reaches a mere .02 BAC the alcohol begins having a noticable effect on a person! .08 is just the level at which science has tended to agree that the effects are most pronounced. You may not THINK your reaction times are slowed, but they are ... your 'tolerance' has NOTHING to do with how alcohol effects your perceptions and ability to react and process data.

The statue should be required to prove actual impairment, without any "presumptions" based on BAC.

Have fun winning that one! In case you have missed it, it has been tried before and lost. But, if you have the money, I am sure some attorney would be willing to take on the case for you.

Finally, I should add that I do not condone drunk driving, defined as driving while IMPAIRED by alcohol (as made illegal by the 23152(a) statute.) However, saying a .08 BAC "proves" impairment is discriminatory, particularly in a case where there's otherwise absolutely NO credible evidence of impairment.

There is a great deal of scientific evidence to prove impairment BELOW .08. That is simply the level at which there is no real evidence to say that someone is NOT impaired.

And ...

23152. (a) It is unlawful for any person who is under the influence
of any alcoholic beverage or drug, or under the combined influence
of any alcoholic beverage and drug, to drive a vehicle.
(b) It is unlawful for any person who has 0.08 percent or more, by
weight, of alcohol in his or her blood to drive a vehicle.

The section requires that it be demonstrated you were driving under the "influence". The FSTs are what are used to help determine that impairment - as well as the chemical test. It is entirely possible to be DUI at less than .08. It also entirely possible to perform adequately on the FSTs and still be over .08 and get a conviction ... I've never seen it, but in theory it is possible.

So, join the handful of others who want to repeal DUI laws ... I am sure you all have money to burn.

Good luck.

Carl

[RIDL_Prez]

"So, join the handful of others who want to repeal DUI laws ... I am sure you all have money to burn."

Hmmmm....well, I got news for you, there are more than just a handful of others fighting to repeal the DUI laws. In fact, just this week, several RIDL members attended a political rally for the SoS in Michigan. Out of the 30 or so people I talked to personally, only one of them disagreed with me. And once he realized that we're not about keeping dangerous drunks on the road, he started to come around.

There are a LOT of people who think the DUI laws have gone too far. And by the way, calling a person an alcoholic just because they think the laws are unjust is just plain rude.

Rather than repeat it all here, come over to our discussion forum to see why many of the things you said are based on assumptions, emotional hyperbole and junk-science. Didn't you used to post this baloney on the MADD webboard?

LibertyOrDeath, fighting this in the courts is a waste of time. The way to do it is to join an organization that's working closely with legislators to change these laws. We've already had some success in Michigan and expect more to come. We're getting new members every day. So come join us.

Jeanne Pruett
President and CEO
R.I.D.L.
Responsibility In DUI Laws, Inc.
[url]http://www.ridl.us[/url]
[email]jeanne_pruett@ridl.us[/email]

[CdwJava]

Originally Posted by RIDL_Prez

Hmmmm....well, I got news for you, there are more than just a handful of others fighting to repeal the DUI laws. In fact, just this week, several RIDL members attended a political rally for the SoS in Michigan. Out of the 30 or so people I talked to personally, only one of them disagreed with me. And once he realized that we're not about keeping dangerous drunks on the road, he started to come around.

Sorry, still haven't seen the throngs storming the legislatures of the nation's state capitals to repeal DUI laws. I doubt I'll hear that as a campaign slogan in the near future.

There are a LOT of people who think the DUI laws have gone too far.

Our version of what is "a lot" of people may well differ.

And by the way, calling a person an alcoholic just because they think the laws are unjust is just plain rude.

I did not call anyone an alcoholic. Where did you get that? Unless you refer to PTL's comment.

I DID comment that most "drunks" (as evidenced by his BAC) think they did just fine on the FSTs - and many do.

Rather than repeat it all here, come over to our discussion forum to see why many of the things you said are based on assumptions, emotional hyperbole and junk-science.

Seen the arguments, read the reports, and conducted the field studies. No thanks. I'll get my headaches elsewhere.

Didn't you used to post this baloney on the MADD webboard?

Hmm ... I didn't even know they HAD a web board ... I knew they had a website - been buy it two or three times in my life (incidentally, the same number of times I've been by yours).

In the meantime, while you fight to make the roads safer for DUI drivers, I'll be fighting to keep the roads safer for the rest of us.

And ... you really felt the need to revive a month-old thread?!?

- Carl

[RIDL_Prez]

"Sorry, still haven't seen the throngs storming the legislatures of the nation's state capitals to repeal DUI laws. I doubt I'll hear that as a campaign slogan in the near future."

Well, hey, after two years MADD had a whopping 300 members. We have over 1000 and it's only been a year and a half. These things don't happen over night and you know it. Don't forget they laughed at Candy Lightner too.

"Hmm ... I didn't even know they HAD a web board ... I knew they had a website - been buy it two or three times in my life (incidentally, the same number of times I've been by yours)."

You sound just like someone else that used to post there. They no longer allow people to discuss this topic in general on their forum. Their forum is now for "victims" only.

" did not call anyone an alcoholic. Where did you get that? Unless you refer to PTL's comment."

Yes, I apologize. But you did refer to him a "a drunk". I don't agree that just because a machine says you have a BAC of .11/.12 that it automatically makes you "a drunk". So my comment remains.

"Seen the arguments, read the reports, and conducted the field studies. No thanks. I'll get my headaches elsewhere."

That's a typical back pedalling response from someone who knows they are wrong.

"In the meantime, while you fight to make the roads safer for DUI drivers, I'll be fighting to keep the roads safer for the rest of us."

Of course you would say something like that. Your bias is evident. It doesn't take but a quick review of our website to see what we're all about. Promoting drunk driving isn't it and you know it.

"you really felt the need to revive a month-old thread?!?"

It was sent to me by one of our members. I didn't really look at the date. But who cares, the information is still relevant.

[CdwJava]

Originally Posted by RIDL_Prez

Well, hey, after two years MADD had a whopping 300 members. We have over 1000 and it's only been a year and a half. These things don't happen over night and you know it. Don't forget they laughed at Candy Lightner too.

Sorry ... still not envisioning that campaign slogan from a politican proclaiming that he plans to go easier on DUI.

You sound just like someone else that used to post there. They no longer allow people to discuss this topic in general on their forum. Their forum is now for "victims" only.

Not me. I have used the same nickname since I came to the web, so it would be pretty easy to figure out. I have never bothered to hide my moniker or my name, so if there was someone on the Madd web board, it sure as heck wasn't me.

Yes, I apologize. But you did refer to him a "a drunk". I don't agree that just because a machine says you have a BAC of .11/.12 that it automatically makes you "a drunk". So my comment remains.

Legally he was "drunk" per CA law. I did not say he was "a drunk", either.

"Seen the arguments, read the reports, and conducted the field studies. No thanks. I'll get my headaches elsewhere."

That's a typical back pedalling response from someone who knows they are wrong.

Or someone that has gotten tired of re-hashing the same ground over and over again. Like I said, I have gone over the data before, and participated in comparative studies and enforcement.

You believe the studies you want, I'll believe the ones I want. It's the American way!

"In the meantime, while you fight to make the roads safer for DUI drivers, I'll be fighting to keep the roads safer for the rest of us."

Of course you would say something like that. Your bias is evident.

Yep. I am opposed to impaired driving. So sue me.

It doesn't take but a quick review of our website to see what we're all about. Promoting drunk driving isn't it and you know it.

I didn't say that you promoted drunk drivers. I SAID that you are fighting to make the roads safer for DUI drivers. Since you seek to repeal 'per se' laws, the .08 BAC laws, and other related matters, I would say that is an apt characterization.


- Carl

[RIDL_Prez]

"Sorry ... still not envisioning that campaign slogan from a politican proclaiming that he plans to go easier on DUI."

Oh, how about a campaign slogan from one saying he/she wants to protect our civil liberties? Or do you deny that people charged with DUI have had their rights stripped from them by "DUI exceptions" in the constitution that somehow magically appeared according to Judge Rehnquist who was mislead by false data from MADD and NHTSA?

"Legally he was "drunk" per CA law."

Oh? Does the law say that you are drunk, or does the law say you are impaired? And we are talking about "per se" laws. Per se laws should be (and hopefully will be) illegal. The term "per se" means you are guilty without any other evidence being necessary. I really don't care what CA law says. The law is unconstitutional and as such is null and void.

"You believe the studies you want, I'll believe the ones I want. "

Actually, we have likely read the same studies. But I have read them with a critical eye and have found their methodologies to be suspect. So I don't buy their results. Obviously, their results suit your needs so you don't care that they were garnered via dubious techniques.

"I SAID that you are fighting to make the roads safer for DUI drivers. Since you seek to repeal 'per se' laws, the .08 BAC laws, and other related matters, I would say that is an apt characterization."

Well, if you read our website, it's quite clear that we are not fighting to make the roads safer for DUI drivers. We simply don't agree that someone with .08 BAC is necessarily impaired just because a machine says so. We just want to see PROOF of impairment. If you truly believe that everyone is impaired at .08 then you wouldn't have any issue with having to prove it with more evidence than just what some highly fallible, easily tampered with machine says. Sorry, but the word of a police officer just isn't enough. We have too many examples of over-zealous cops lying in order to get a conviction. And it's the currently DUI hysteria that has made it possible for these cops to get away with it.

Regardless of the type of crime, if I'm ever on a jury, I will NEVER believe anything a police officer says unless he can back it up with some kind of proof. Video tape for instance.