Alcohol

D.C. Unjustly Imprisons Hundreds

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You're screwed

As a little supplement to Katherine Mangu-Ward's sorrow-charts yesterday about U.S. incarceration, here's a little example of what happens when law enforcement machinery is calibrated against you:

Nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.

D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police. The jailed defendants generally served at least five days, he said.

And here is how the stacked deck can affect your freedom:

D.C. resident Hector Molina-Aviles, 45, drew a five-day jail sentence after his blood-alcohol level in a 2008 arrest registered .21—a level that triggers mandatory incarceration in the District. He had been celebrating his wife's birthday in Mount Pleasant. He was pulled over on 16th Street for speeding, and an officer later said he smelled alcohol, Molina-Aviles said. […]

Molina-Aviles said he initially refused to take the test but relented because he needed his license to drive to work as an actor and writer. He said he "never believed the high number they gave me" but pleaded guilty in January "because fighting this for years took over my life." He remains on probation, has to seek permission to travel to out-of-state jobs and has been told that if he wants to become a citizen after more than 30 years as a legal resident, he has to wait to apply.

Reason on drunk-driving tests here.

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  1. Chopping wood under the influence.

  2. Let them suspend your license and then just drive with a suspended license.

    The penalty for doing that and getting caught – if you even do get caught – is less than the penalty of getting railroaded with a faulty breathalyzer test.

    1. Or get a hardship license. The cost is still less than a dwi.

    2. According to recent MSM talk, the only place you need to show your license to a cop, for anything, is Arizona. So claim you are illegal everywhere else and don’t show anything!

  3. I suspect DC is not alone. I would never take a breathalyzer test. There is no way I would ever trust the cops to give an accurate reading.

    And of course nothing will happen to the bastards who fixed the machine. They should be going to federal prison for a long time. Instead, they will be given a strongly worded letter to be careful next time.

    If we are not a third world banana republic, we are pretty damned close.

    1. Sorry, Leviathan has already thought of that. In most states (maybe all) refusing the test carries more serious penalties than taking and failing it.

      Assume you are arrested and taken to the station. If you call an attorney, which you should do, you will be advised to show your ID, be polite and take the test.

      1. they cannot send you to jail for refusing the test. They can only take your license.

        1. Yes, but there is this thing called “contempt of Cop”. Be polite.

        2. Whatever you decide to do, once you are released you should go to the ER and get your own blood test ASAP. The blood test may prove your guilt but the test is yours, not the State’s. If the DC people had gotten independent tests they would have had a big gun to take to court.

          1. The police hold you for at least 4 hours so any blood test after that is completely meaningless.

          2. “once you are released…”

            It might be a while before that happens. If you refuse the test typically you’re arrested on suspicion & held for ~ 24 hours. A good move is to memorize a bail bondsman’s & criminal lawyer’s phone numbers. The cops confiscate mobile phones and the most important pages are usually missing (mysteriously!) from the jailhouse phone book.

            Nevertheless, refusing the test can still be the right move. This is b/c you will usually fail the test (regardless of how much you drank — see article) and stupid jurors fixate on the perp’s supposed BAC to the exclusion of any statement or evidence to the contrary. If you haven’t had anything to drink, they will not offer to let you take the test. They will arrest you based on their personal judgement that your behavior “the suspect was nervous, sweating, seemed scared, fidgeted, dialtated pupils, used profanity, questioned the legitimacy of the search” is consistent with that of those who’ve consumed illegal substances.

            I’ve heard innumerable juror marveling that a defendant’s BAC was “nearly TWICE the legal limit” and that “it’s a miracle that s/he wasn’t involved in a accident” and “it’s amazing she could even walk, much less drive.” Etc. Of course, the person had consumed a whopping 3 pints of beer in 95 minutes and then blew a .126 on a machine set to exaggerate results by 25%. Most people can drive ok (read: no worse than normal) at that level. Almost everyone.

            Anyway, be very polite to the cops — unless you want to be a martyr

      2. Not in my state.

        Every attorney I know shouts DON’T TAKE THE TEST from the rooftops.

        There’s one guy who runs TV ads about how he specializes in Vermont DUI’s and he comes “this close” to telling people not to take the test in his TV ad, which is kind of funny to me for some reason.

        1. OK, but people at home just remember that a TV ad is no substitute for invoking your Miranda rights and calling an attorney at the time of arrest.

        2. As I understand it, in Washington state the only thing a judge has to consider is your BAC test. If you take it and you were shown above .08, you’re done and have no defense, or at least nothing the judge has to care about.

          1. That’s pretty much how it is in every state. There is DUI “per se”–if the breath test is .08 or over, you are automatically guilty. The only defense is that the test result is inaccurate which means you need an expert witness to attack the machine’s accuracy.

        3. The laws vary so much from one state to another that it is impossible to give a blanket recommendation. Here in GA I generally advise people (Im an attorney) to take the Intoxilyzer test unless they are under 21, already have a previous DUI, have a commercial license, or there is a wreck with injuries. GA law also requires the cops to take an arrestee ASAP to a hospital for a blood test at the arrestee’s expense.

      3. Sorry, Leviathan has already thought of that. In most states (maybe all) refusing the test carries more serious penalties than taking and failing it.

        This is not true at all.

        You might get a mandatory suspension, but you might not get the DUI and all the associated crap.

        In Illinois its a 6 month mandatory suspension for refusing to blow (and at one point they wanted to up it to a year to punish because people were still choosing not to blow to avoid the DUI to deter that decision).

        And every DUI attorney will tell you the same thing.. DONT BLOW if you want to fight it.

        1. I think it depends on the state’s laws and the situation. Here in GA a jury is allowed to consider a refusal as evidence of intoxication (so much for the 5th amendment). A defendant needs to be able to articulate to a jury why he/she refused the test.

          1. In Harris County (Houston) they had a “no refusal weekend” for Memorial Day. They’re very upfront about this being a trial run for a much larger undertaking. If you refuse to blow, they forcibly take a blood sample from you. This is my favorite line of the write-up:
            “When suspects refused to provide a sample, they were brought into another room that had been sanitized to hospital standards and quarantined so that access by others was limited. Although there is no requirement that the room be sanitized, as there is with a mandatory blood draw sample, we decided it would be better to follow this approach.”

            How very thoughtful of them.
            http://www.tdcaa.com/node/1141

    2. Que that piece of shit “all my cop friends blow into the brethalizer test when they get pulled over so you should too” cocksucking pig. What’s his name again? You know, the one who won’t answer the question — Have you ever seen your fellow officers break the law and if szo, did you arrest them?

      Fucking. Useless. Cunt.

      1. “He got weed! He got weed!”

  4. How odd- not long ago, one of our itinerant cop apologists was reassuring us that those breathalyzers are ONE HUNDRED PER CENT ACCURATE.

    I believe he also said, “If you’re not doing anything wrong, you have nothing to worry about.”

    FUCK YOU, PIG.

    1. BABY KILLER!

    2. It is really terrifying. A lot of people in DC work in jobs that have security clearance. You get nailed for a DUI and you lose your clearance and you are fucked. (What the hell getting a DUI has to do with your ability to keep state secrets is beyond me) And now it turns out they are framing people. great

    3. Sorry, should have read through before I posted. I think that was the motto of the Stasi and the KGB as well.

  5. This is why DUI, in and of itself should not be a crime, especially with a hefty fine.

    Make DUI an aggravating factor, like using a weapon in a crime…when you cause an accident, and the de facto grounds to sue the living bejesus out of someone.

    But the speeder is pulled over (most likely after being seen leave where they were celebrating.) and then given the DUI. BS. Afterall, you can’t get an additional citation with your speeding ticket just because you were on the phone, or simply driving like an asshole.

    1. Exactly. You should be responsible for your actions. The mere act of driving drunk that results in no accident or injury should not be the concern of the state.

      1. I’m not sure I agree with this. Reasonable legal restrictions on inherently dangerous activities do make some sense. It shouldn’t be legal to fire your firearm generally in the direction of people, even though you don’t come close to hitting anyone.

        On the other hand, the level of punishment should, of course, be commensurate with the crime.

        1. But you have to take into account the difficulty of enforcing the law. Arresting someone for shooting a gun is easy and clear cut. Trying to find people who have not caused any accidents but are driving drunk can only be done through draconian and privacy invading methods. And inevitably leads to this kind of thing.

          1. PL, I get that, too. And I understand that by using the roads I’m in a contract with the state so there are going to be rules. That being said, where I think it differs is that there are already ‘restrictions on inherently dangerous activities,’ such as speeding, changing lanes without signalling, and on and on. Fine. Give me a ticket for that.

            I pull up to a road block, hand the officer my license and registration. He smells booze, I go to jail. The municipality gets a quick grand, MADD gets their cut with my mandatory Impact Panel attendance, then there’s the state run alcohol awareness, etc. No difference between this and seatbelt laws…revenue generators and that’s it.

        2. Reasonable legal restrictions on inherently dangerous activities do make some sense.

          In some cases. Particularly when we’re talking about truly reckless behavior.

          But I’m going to tiptoe out on a limb and say something that has become almost as socially unacceptable to say in the US as the “n” word:

          Most drunk drivers really aren’t very dangerous.

          Not so dangerous that their conduct is per se reckless, in any event.

          People vastly underestimate exactly how much drunk driving is actually occurring every night. Relative to how many “drunk miles” are being driven, the accident rate really isn’t that extreme. If it was like “playing Russian roulette”, which I’ve heard it compared to, there should be tens of thousands of drunk driving accidents A DAY.

          If we were throwing the book at people who drive with a .20, I’d be behind it 100%. But as with most things, neopuritanical statist dickwads just can’t be reasonable, and have to alienate me and lose my support by being hysterical: “You’re more dangerous than an atom bomb at .06!” Yeah, right. Sure you are.

          1. Exactly. It is just a substitute for prohibition. Think of all of the people we make criminals with this. How many people have lost their jobs and suffered years of God knows what misery when they never even hurt anyone. It is just barbaric.

          2. Most “legally drunk” drivers are not really drunk anyway.

            1. “Buzzed driving is drunk driving”

              Yeah, what exactly does that mean?

              1. It means MADD doesn’t care how much alcohol has a noticeable effect. They just ‘care.’

                1. You’re drunk right now, aren’t you?

                  1. According to some, yes. And I fell asleep before second intermission of the ice hockey match last night!

              2. It means if I smoked a joint, I must be drunk.

          3. I suppose the issue is really when a driver’s behavior justifies a stop. Clearly, reckless driving of any sort does. Also, seeing someone who is falling-over drunk get behind the wheel probably works, too. But random stops and tests that convict without any other indicia of recklessness are another thing altogether. The tests could be set at a level high enough to allow for a presumption of drunkenness, which would make the testing less draconian.

            1. tests could be set at a level high enough

              Or the fines set at a level low enough for it not to be worth their time, both figuratively and literally. 25 dollar a pop fines don’t pay for a ton of overtime.

          4. The problem is, as you point out, the level of drunkenness. Im favor of some sort of point system.

            .08 and first offense == 1 pt.
            .12 and first offense == 5 pts.
            .16 and first offense == 9 pts.
            etc

            add a multiplier of some type for multiple offenses and make low pt values mere traffic tickets, rising to misdemeanor rising to felony.

            Just spitballing a system here:
            $300 fine per point starting at 1st point.
            90 days suspended license per pt starting at point 5.
            30 days in jail per pt starting at pt 9.
            1 year in prison per pt starting at point 13.

            Multiplier can just be conviction #.

            Blow a .08, first conviction, $300 fine, no criminal record, its just a ticket.
            Blow a .09, 2nd conviction, 2pts x2 multiplier = 4, $1200 fine plus 90 days suspended license, still not criminal.
            Blow a .12, 3rd conviction, 5 pts x3 = 15, $4500 fine, 3 years in prison.

            Okay, maybe that isnt perfect, but idea is higher bac and repeat offenders should have worse penalties, starting with mere traffic offenses at the .08-.11 level. Someone would have to work out better multipliers/pt levels.

          5. exactly. How dangerous compared to use of a cell phone while driving? Or how dangerous compared to all the f*cking idiots driving out there…drinking probably sedates a few of them and makes them better drivers.

          6. I couldn’t agree more. This .08 and .05 BS is ridiculous. It really is backdoor prohibition. The huge majority of serious injuries and fatalities occur with blood alcohol levels of .15-.20 and above.

            1. Not only that, but (AFAIK) it’s a relatively small number of repeat offenders who cause the majority of the drunk-driving accidents and injuries. Those people aren’t driving with a .09 BAC, but are seriously fall-down drunk when they do it.

  6. Also
    If you take the test you can challenge the results in court. If you refuse the test, you can argue that you didn’t really refuse. Good luck with that.

    1. If you take the test you can challenge the results in court. If you refuse the test, you can argue that you didn’t really refuse. Good luck with that.

      What?? if you refuse you can argue you didnt really refuse? What?

      If you refuse the test, there is then no evidence that you were drunk.

      It’s a lot easier to beat a DUI if there is no concrete evidence that you were drunk (like a breathalyzer or blood test)

      Most good/effective DUI attorneys will cost you probably the same (or slightly more) than the fines would come out to, but you would still avoid the record, the bullshit classes/couneling etc.

      1. You don’t even need a test to be convicted. All the cop has to do is testify you smelled of alcohol, had bloodshot eyes, slurred speech, stumbling, etc.

  7. D.C. Attorney General Peter Nickles said the machines were improperly purposefully [miss]adjusted by city police.

    There. That sounds more accurate.

  8. At last, a non-racist picture on a Reason article!

  9. If you’re not doing anything wrong, you don’t have anything to worry about!!! The mantra of statists world wide.

  10. He was pulled over for speeding (a crime) then he pleaded guilty for something which he knew he was innocent of. His “acting” career seems to have rotted his brain. Not that faulty breathalizers aren’t a very bad thing. Discuss.

    1. They had a breathalyzer test on him. He was fucked in court. And they no doubt threatened him with a much bigger punishment if he lost at trial. He wasn’t stupid. He made a tough choice. Blame the fuckhead cops not him.

      1. But he was speeding. That’s why he was pulled over. Is that OK?

      2. The tests are being challenged successfully by lawyers requesting the code from the manufacturer. The makers do not want the code to become public knowledge.

    2. Some places it is easier to cop a plea. In the early ’00s in Texas you could plead no contest, pay about $1000 and get adjudication withheld if you kept your nose clean for your year of probation. Since 3rd DUI convictions are now felonies, it might make sense to have a shot at getting it off your record completely if you don’t have a good shot at beating the charge outright.

      1. not anymore

  11. At last, a non-racist picture on a Reason article!

    Hello! There’s a woodpile in the background. It’s 003.jpg from a skinhead prison-rape series. The Nazi cop is setting up a fat bitch to send to his boys on the inside.

    1. What the hell are you talking about? A picture of two white men, and you’re saying it’s nonracist? That picture doesn’t reflect American diversity at all!

      1. He didn’t say it was non-racist, I did!

        1. Very well. What the hell are you talking about?

          1. It didn’t show Asians in a bad light, of course 🙂

    2. I thought the nice cop was offering the driver a sip from his juice box.

  12. This is why DUI, in and of itself should not be a crime, especially with a hefty fine.

    I agree. DWI is sort of like Minority Report: you’re convicted of committing a crime before you’ve actually committed a crime. Same goes for texting while driving.

    Now, if you’re drunk or texting or dunking your McNugget in BBQ sauce, what’s the difference when you run a stop sign and hit a Soccer Mom van full of kids? Is it more tragic that the kids were killed by a drunk driver than by a hungry driver? I don’t think so.

    Unless there are laws that make sauce dunking or turning around in your seat to yell at your kids or changing the CD illegal – they’re all distractions – then it’s all just nanny state BS.

    1. Unless there are laws that make sauce dunking or turning around in your seat to yell at your kids or changing the CD illegal

      Say, that is grand idea!

    2. dunking your McNugget in BBQ sauce

      Is that what you kids are calling it these days?

      1. Not any more …

        1. Boys are weird. Is this the sack-tapping thread revival?

    3. As long as they include dogs in drivers’ laps, I’m fine with the change. I always suggest this when the cellphone/texting “there oughta be a law” crowd get fired up. You’d think I was talking about eating their dogs from the horrified response I get.

    4. I’m going to start an organization called MAHD – Mothers Against Hungry Drivers. Actually, I guess I’ll get someone else to start it, since I’m not a mother, or even a female.

      1. And here I just assumed that Slut was a girl’s name.

        1. my fantasy life is slightly diminished…

          1. Slut Bunwalla was one of the potential names for Arnold George Dorsey who eventually became Engelbert Humperdinck.

            This, according to Eddie Izzard.

            1. I am glad that there is at least one person here who understands the reason for my handle.

              1. I understood and am amused every time you post! Dress to Kill indeed.

  13. People vastly underestimate exactly how much drunk driving is actually occurring every night. Relative to how many “drunk miles” are being driven, the accident rate really isn’t that extreme. If it was like “playing Russian roulette”, which I’ve heard it compared to, there should be tens of thousands of drunk driving accidents A DAY.

    Exactly. But the neo-prohibitionists and their media accomplices bombard us with stories of the tiny group of people who repeatedly get arrested for driving at extreme blood alcohol levels, crashing their cars and killing The Other Guy, and use those stories as “proof” we need ever-lower BAC limits, and ever-more aggressive and “pre-emptive” enforcement programs.

    As far as I am concerned, drunk driving which results in death should be prosecuted as murder.

    1. As far as I am concerned, drunk driving which results in death should be prosecuted as murder.

      And be punished with the death penalty.

  14. Good blog by a DUI attorney in California. He frequently posts on abuses like this.

    DUI Blog

    1. OMG. That blog is just a giant line of kicks in the balls. I think I feel ill after reading it. I need to move somewhere else.

      1. You too with that stupid game the unruly boys are playing? [shakes head in disbelief]

  15. As far as I am concerned, drunk driving which results in death should be prosecuted as murder

    Eh, not sure you have the intent. I think it should be no different than the McNugget Dunking of which Sugarfree is so fond. Should be prosecuted commensurate with the actual effect of the alcohol. Blitzed drunk .35 plowing into a bus of Nuns and .08 rearending some teenagers playing grabass and slamming on the brakes should not be the same.

    Were you at fault? Sure, but to what degree? I just don’t like the socially demonized trump-o-matic of the “Drunk Driving.”

  16. I think it should be no different than the McNugget Dunking of which Sugarfree is so fond.

    I see your point, but McNugget-dunking is a temporary distraction, lasting a second or two; severe intoxication is an ongoing impairment.

    (There is unquestionably a point at which one should *absolutely not* drive; that point varies, depending on a variety of factors. However, our protectors have decreed that a person smart enough to lock him/herself in the car and take a nap before making the trip home is just as guilty as the person driving on the sidewalk at 100mph. Makes sense, don’t it?)

    1. McNugget dunking is only as temporary as the number of McNuggets you possess. Did you know they come in 20-packs now?

      1. In Kentucky, you can get 50-packs.

        1. Down here in Mississippi we get ’em in 100-packs.
          Now somebody help me outta my chair.

          1. In Seattle we can download as many as we want over the internet…

        2. Nice.

          Of course, I’m sure if you went to a McDonald’s and wanted 400 McNuggets, they wouldn’t say no. I wonder what kind of discount you could convince them to give you…

    2. “I see your point, but McNugget-dunking is a temporary distraction, lasting a second or two”

      a second or two??? Speak for yourself.

  17. My in-house counsel advises me to never take a breathalyzer. They are far too inaccurate and can be gamed by the officer on site. She advises refusing the breathalyzer and insisting on a blood test.

    Of course, I usually let her drive so I don’t expect it’ll come up for me.

    1. She advises refusing the breathalyzer and insisting on a blood test.

      Excellent advice. Make sure they keep a sample for retesting later, too.

      As a societal bonus, it will tie up the arresting officer for awhile, too.

      1. If I weren’t the sun, I’d be afraid of a vindictive blood-tester putting a bubble in my vein.

    2. ” I usually let her drive so I don’t expect it’ll come up for me.”

      You never drive?

  18. D.C. Attorney General Peter Nickles said the machines were improperly adjusted by city police.

    Whenever I want sophisticated test equipment calibrated I always go to police headquarters.

  19. In Kentucky, you can get 50-packs.

    I won’t believe it until I see it on Jezebel.

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