Brickbat: Now Breathe Out

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Under department policy and the manufacturer's guidelines, San Francisco police are supposed to test the accuracy of their breathalyzer devices every 10 days. But the public defender's office has found that the department hasn't tested those devices in six years. The district attorney's office has now joined in the investigation, and officials say they may have to void hundreds, possibly thousands, of DUI convictions.

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  1. It is worse than that. Not only do you have to calibrate the machines, you have to have a company come out and calibrate the machine that calibrates the machines. Even police departments who bother to calibrate their machines rarely bother to spend the money to get their calibrating machine serviced.

    I would be surprised if 10% of the breathalyzers in use today have been both recently and properly calibrated by a properly serviced calibration machine.

    1. Government does no wrong, so the rules are not really for them.

    2. They’re accurate enough for Government work.

      1. ….Why weren’t you at my St. Patricks day party?

        1. In the drunk tank – AGAIN

    3. OK = now I’m pretty sure that John is either a Lawyer, a Cop, or a serious alcoholic*

      (*or combination thereof)

      1. I know a lot of both.

        1. This implies that all lawyers and cops are serious alcoholics.

          1. As opposed to frivolous alcoholics, like the panel on Match Game.

            1. a real insult to non-cop/non-lawyer alcoholics to be lumped in withthe likes of THEM…

  2. Although I doubt the cal interval is as short, it would not surprise me to find out that most radar guns are also way past due for cal.

    1. According to Maine law the radar gun is always right.

      1. Then I would make sure to ask to see it during the traffic stop. Of course, a cop would never lie about the readout, right?

        1. Then I would make sure to ask to see it during the traffic stop.

          “Get out of the car please. Now STOP RESISTING!”

        2. Enjoy your batoning

        3. Good luck when he detains you for “resisting arrest.”

      2. According to Virginia law (after changed a half decade or a decade ago) if you ask for a blood test (instead of or to supplement breathalyzer), you’re admitting guilt. This change was made after people started asking for their right to a blood test, naturally.

        1. This is why no one should ask law enforcement what they think when making laws. Making cops’ jobs easier should never be a consideration in making criminal law.

        2. Why would that possibly be admitting guilt? You’re asking for a test to determine guilt!

          1. This one just screams unconstitutionality.

          2. More clearly, under Virginia’s Implied Consent law, you are required to submit to a breathalizer test, or a blood test if a breathalizer test cannot be done or if the officer suspects drug use. Since 1993 the driver does not have discretion to choose between a breath or blood test. Refusing the breathalizer test is breaking the Implied Consent law.

            I don’t know if you can submit to the breathalizer test and then demand a blood test.

            1. Sorry, that should be “refusing either test…”

              1. Public safety, bithces!

        3. Well, then they should just drop all pretense and declare that anyone with a license is guilty of DUI and can be arrested for it at any time.

          1. I’m most certain everyone has been guilty of DUI at a given point in their life. I’m just waiting for the cops to come and arrest me for my past offenses at this point.

      3. The Maine accent in a state of rage is quite something, though.

        http://www.youtube.com/watch?v=fyHMbHHtArE

  3. This is precisely the reason on the only jury I have ever served, I voted to acquit, even though I thought the defense attorney and his expert witness was a jackass.

    1. Absent hard evidence of the person being intoxicated, like video of them stumbling around or them causing an accident, I would never vote to convict on a DUI case. I don’t care what the breathalyzer says. If you are driving legally and not acting drunk, you are not intoxicated as far as I am concerned.

      1. Dittoes! I finally got your attitude when a friend got a bogus DUI. All it did was cost him a lot of money fighting it, didn’t make anybody safer.

        1. All it did was cost him a lot of money

          That’s the point.

          If you can afford to fight it then you will likely get off, as my friend did who paid three grand to a lawyer who happened to be friends with the prosecutor.
          He blew .17 which is aggravated around here, and got into an accident, but he paid so it got dropped.
          Otherwise he would have had to pay fines, classes, counseling, higher insurance, etc.

          No matter what someone gets paid.

          1. Odd how often the people who run those classes and counseling services are related to judges and legislatures who require them.

            1. Nepotism is the rule, not the exception.

            2. Those classes are such a fucking racket. It’s just another fine/semi-imprisonment that gets funneled to whoever has good connections with the state DOC or whatever.

          2. No, he could afford it. I suppose the crony connection was missing, which is not an “afford it” issue.

            1. He knew what questions to ask when he went attorney shopping.
              “Are you friends with the DA?”
              Once one gave an affirmative he asked “How much to get the charges dismissed?”

          3. No matter what someone gets paid.

            It’d be nice if being a lawyer weren’t a profession.

            If only we could demand trial by jury.

      2. I dunno, I think anyone who has every been drunk a few times can think of a time when they were and yet no one around them was aware of it…

        To me the distinction is between whether they were intoxicated, which in itself I care less about, and whether they were driving recklessly.

        1. whether they were driving recklessly

          That requires subjectivity.

          It’s so much easier to set arbitrary policy.

          Then no judgement is required.

          1. Well, to be fair, I’m not sure I want subjectivity as a big component of police work.

            1. If you are worried about testilying and cops abusing their discretion, then the only solution is to cut the criminal code way, way back.

              Because abusing authority is hardwired into humanity. You can’t stop it, so you have to reduce authority to reduce abuses of authority.

              1. One of the best things you have ever posted here, and for that matter, what anybody has ever posted.

              2. Well, to be fair, most police interceptors are now equipped with video cameras, which would let a judge or jury decide whether the person was actually driving recklessly.

                1. True, but, most don’t start recording unless the sirens are on full blast(many cruisers have three stages of lights/sirens.) Hence the frequent missing dash cam footage; becomes your word vs. the cop.

                  1. Oh, if only “Innocent until proven guilty” were more than a meme.

                2. If they weren’t driving recklessly, the video camera would magically malfunction.

                  1. If they weren’t driving recklessly, the video camera would magically malfunction.

                    “The suspect’s reckless driving damaged my vehicle’s dash cam.”

        2. That is what I mean, absent hard evidence. If the person was driving recklessly or there is evidence of them acting impaired, then sure I would convict. But I would never convict based on the results of a magic box alone.

          1. But I would never convict based on the results of a magic box alone.

            I dunno. I’m with you on the breathalyzer, even though the breathalyzer’s at the station aren’t the devices being implicated here. But if you change the facts to a blood test with >0.15 BAC and yet no video or non-LEO witnesses to reckless driving, I’d still vote to convict. Not that the above is very likely.

            Agree with the poster who wrote that no cop is likely to lose their job over this. I wouldn’t be so sure about the techs though, and if I were someone who cared (the A.G.’s office), I’d be awfully interested in whose signatures were on documents certifying that the devices were calibrated and in good working order. Falsifying maintenance records like those is a felony, no? Never mind if the tech was actually called on the stand to testify to the accuracy of the device.

            1. (Stupid character limit)

              I’m also not sure that very many convictions are going to be tossed over this. From my understanding of the article, these devices were just to help the officer obtain P.C. for the arrest. Nothing says the officer wouldn’t have had P.C. absent the device. Is it even perjury, if neither the arresting/testifying officer, nor the D.A.’s office knew that the techs were cooking the maintenance books for the hand-held devices?

            2. I’d be awfully interested in whose signatures were on documents certifying that the devices were calibrated and in good working order

              I’m sure such statements are on every single police report in which those machines were used, with a policeman’s signature at the bottom.

              1. Well, if the officers who were using the devices that shift, were also the ones lying about calibrating those devices, then isn’t this as open and shut a case for falsifying a government record as it gets? Maybe perjury too, if the officer lied on the stand about calibration? Sure looks like CA Penal Code 118.1, 134, and probably others too, will apply.

                I eagerly await the slew of indictments that will no doubt result from this.

                1. I eagerly await the slew of indictments that will no doubt result from this.

                  Don’t hold your breath.

            3. From my understanding of the article, these devices were just to help the officer obtain P.C. for the arrest.

              If so, then the bad machines meant there wasn’t PC for an arrest, making the arrest illegal, and I think the rest of the dominos fall at that point.

              The fact that the officer could have had PC for an arrest even if he hadn’t used the machine probably isn’t much help, unless the officer documented independent grounds for PC, which will be spotty, at best.

              1. The fact that the officer could have had PC for an arrest even if he hadn’t used the machine probably isn’t much help, unless the officer documented independent grounds for PC, which will be spotty, at best.

                Isn’t it usual DUI/DWI LEO practice to pad the report with the usual observational boilerplate, e.g., “failure to maintain lane discipline, when interviewing the suspect, he was slurring his words, failing to maintain balance, smell of alcohol was on his breath,” etc…? Plus, if you have video of failed field sobriety tests, officer testimony of the suspect failing a horizontal gaze nystagmus test, I can easily see the officer having proving P.C. for the arrest.

                OTOH, if all the officer did was wave the BAC thingy in the driver’s face at a roadblock, and drag him out of the car when it chirped 0.09, things get tougher…

                1. Maybe.

                  Depends on how lazy the cops are, whether they documented independent grounds, etc. Those dashcam videos can cut both ways, too.

                  And, if the officer’s signature is on a form asserting that the breathalyzer was good, etc., then the defense has grounds for attacking his credibility on everything else he signed to.

                  1. Those dashcam videos can cut both ways, too.

                    Which is why the camera was always off or malfunctioning when the video contradicts the officer’s story.

                    1. Then resort to your “vids or it didn’t happen.” defense.

                    2. See my post above. Most cops can control when the dashcam starts saving the footage by not turning on full sirens/lights.

              2. “”If so, then the bad machines meant there wasn’t PC for an arrest, making the arrest illegal, and I think the rest of the dominos fall at that point.””

                The question in my mind is if any vehicles were seized and how they plan to compensate if there were?

                1. if any vehicles were seized

                  Yes.

                  how they plan to compensate

                  No.

    2. This is precisely the reason on the only jury I have ever served, I voted to acquit . . .

      Was the guy acquitted? Was there a law-and-order faction in the jury room that was out for blood? Details!

      1. Was there a law-and-order faction in the jury room that was out for blood?

        Yeah…the women on the jury!

        After initial deliberations of the jury on which I served, the men were split about 70:30 for acquittal….the women coalesced into a block for conviction right out of the gate! Based on it seemed, little more than the need to wrap things up quickly because they all had so so much left to do that day!

        1. Was there a law-and-order faction in the jury room that was out for blood?

          Yeah…the women on the jury!

          This. So much this. At least that’s what I’ve been told by friends who’ve worked both sides of the criminal bar.
          Make them ‘mommies’ and the effect skyrockets. You had to be doing it, or you wouldn’t have been arrested, and if you were doing it, you could’ve: drunkenly run down/sold drugs to/taken naked pictures of my kid.

          I’m not sure about capital cases at sentencing, but otherwise, a jury of mommies is a prosecution dream. I’ve so far avoided having to serve on a jury, so I haven’t confirmed those points for myself. Gah, and re-reading this, I really don’t want to get called for a capital jury.

          1. Escpecially if you are one of two black people in a jury pool of 125 and the defendant is black. Your ass is not gonna get out of serving on that jury.

        2. I despair. Women like this give the few of us who use our brains a bad name.

        3. Yeah…the women on the jury!

          LOL Probably card-carrying MADD members!

  4. It sounds like they need to arrest the public defender’s office.

    1. Obstruction of justice, interfering with police business, tampering with evidence, and of course disorderly conduct.
      What else?

      1. Resisting arrest.
        And slandering the police department.

      2. conspiracy to all of the above. conspiracy to conspire.

  5. San Fran? This was in SF, the Utopian seat of leftoid thought?

  6. And then they will issue refunds of all fines and court-ordered “alcohol abuse treatment”.

    1. Ha! That’s a good one!

      Will you be here all week?

      1. That sounded sarcastic.

        Oh…..right….

  7. …..uber Allles!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  8. Abolish the wages system

    1. Shrike,

      Hey idiot loosen the bag around your neck! You take the autoerotic asphyxiation thing way too far!

    2. I don’t think you’ll like the alternative.

    3. First off, when you abolish the wages system, your new name is Toby.

      1. NO! MY NAME IS SHRIKE!

        1. *Whi-tash!*

          1. TOBY! I MEANT TOBY! I MISPOKE!

    4. Where’s the love?

    5. Thats plainly not shrike, one of our lil’ pussy spoofers is at it again.

      It’s neat that they target left wing posters so much, does this say something about how right wingers are?

      1. I don’t think it says anything about right wingers or any group generally, but I do agree that it is stupid and annoying. I’m very glad to have some dissenting opinions on here that aren’t complete trolls.

        1. You forget that if one right winger says something outlandish (Limbaugh for example), then every single right winger, without exception, thinks that way. Any who say they don’t are lying.

          1. shrike deserves no kind treatment, MNG.

      2. I didn’t mean it when I said pussy spoofer. I am a recovering Liberal and still have trouble taking a joke and recognizing humor. I’m in a program to correct this.

      3. It says that left wing posters are spoofs of themselves and thus easy targets. Personally I find it difficult to tell the left wing posters from the spoofs of the left wing posters.

        1. Only because we’ve seen the same retarded appeal to emotion 5 million times. It gets … predictable.

  9. I don’t care what the breathalyzer says. If you are driving legally and not acting drunk, you are not intoxicated as far as I am concerned.

    WTF INSANITIEZ!!!!!!!!

    Next you’ll tell us laws should deal with *actual harm* instead of scary monsters under the bed.

    1. how dare you disparage my proposed Prohibition Of Monsters Hiding Under Beds And In Closets Act.

  10. I’ll do…BURRRPPP…the testing!

  11. don’t worry, not a single ‘cop’ will get canned over this

  12. Thank god for public defender’s offices. I think that is one area of government that actually deserves more funding.

    1. However, they’re a bit like the GAO or Inspectors General. They don’t really get listened to, especially when correct.

      1. Regardless, they deserve more support, not less.

        1. In Louisiana public defenders serve at the pleasure of the judge. Think about that a minute….

        2. Well, reach into your pocket and……..

    2. Yes,

      Ensuring people’s constitutional rights to a fair trail, a legitimate government function.

      1. Actually, conservativs howled, and still do howl, about Gideon. It was the federal government imposing judicial activism on the states, blah, blah, blah.

        1. I guess I won’t be voting for Henry Cabot Lodge anytime soon.

          1. Zombie Lodge 2012!

    3. Publicly funded defenders should be an option for anyone regardless of one’s ability to pay. Payment for the service can be brought up after a conviction. This still leaves the option of hiring a private attorney who will not take a case at the public defense rates.

      This, and the criminal system should be accountable for all costs of fuck ups, such as this DUI thing.

      1. Single-payer legal care.

        After all, no lawyer does anything worth more than minimum wage.

        (I’ll let people figure out how much of the above two sentences is serious and how much is sarcasm.)

  13. Looks like a new guy got a little uppity.

    He didn’t realize that his job is to get plea bargains for the prosecutor.

    This will be the last time he works in the public sector.

  14. I remember way back a cop told my friend to blow into the machine, and after looking at it the cop said it was an “incorrect reading” and told him to blow into it again.
    He made my friend repeat this process several times until he got the reading he wanted, then arrested my friend.

    My guess is that the cop needed the alcohol to accumulate in the machine before he could get the bogus reading needed to make the arrest.

    1. My guess is your friend was DRUNK OFF HIS ASS!

      😉

    2. I remember way back a cop told my friend to blow into the machine, and after looking at it the cop said it was an “incorrect reading” and told him to blow into it again.

      After blowing once, I think you would have a fair chance of beating the rap if you refused additional testing. The usual mantra is that “refusing” a breathalyzer gets you a license suspension, etc.

      The argument would be whether you “refused” a breathalyzer when you blew once, or whether “refused” means refused any request to blow.

      1. After blowing once, I think you would have a fair chance of beating the rap if you refused additional testing.

        Then the cop only puts into the report that you refused, and neglects to mention that you blew the one time.

        1. Unless you offer to blow his other device.

    3. On my roommate’s 21st birthday, I had a beer to celebrate midnight and then went to bed. 3 hours later I get a call to come get him, so I walked a mile to the house he was at, and drove his brother’s car down a street with lightposts on both sides and every 15 feet. When I turned on my lights in this unfamiliar car, I apparently only got the running lights on, so I got pulled over after about a block on suspicion of drunk driving.

      I explained this situation to the cop, said I was sorry about the lights and hadn’t noticed because that street is so bright, and then had to go through about 20 minutes of field sobriety tests before they would let me blow. When they finally let me blow I blew zeros. The annoyance on the cop’s face was priceless. Too bad she still gave me a warning and made my super drunk friend wait unattended in the backseat of a car while struggling not to vomit.

      1. When they finally let me blow I blew zeros.

        Apparently not a guarantee in San Francisco!

        1. “He’s clearly found some way to game the technology. We better bring him in for a blood test.”

          1. Last time I got pulled over after having exactly 12 ounces of beer, I insisted on the breathalyzer, which raised an eyebrow… and then another, when the reading came up virtually zero.

            I bet that cop is STILL pissed.

    4. He made my friend repeat this process several times until he got the reading he wanted, then arrested my friend.

      Yup. Happened to me. I blew twice, waited half an hour, and had to blow again.

      Nevermind the fact that I would have arrived at my destination long before my body had started processing the alcohol.

  15. So who got them to move brickbats here?

    1. the Reason Batting Coach.

  16. The district attorney’s office has now joined in the investigation, and officials say they may have to void hundreds, possibly thousands, of DUI convictions.

    People convicted of a witchhunt pseudo-crime – most of whom likely didn’t actually hurt anyone else – might have their convictions overturned?

    THE HORROR!!!

    1. It’s pretty amazing that this is happening in the United Soviet State of California.

  17. Yeah OK man that makes a lot of sense dude.

    http://www.real-world-anon.tk

  18. Slightly off-topic, but how did we get back to the default statist position that the defendant must prove a negative when charged with a crime?

    1. When the right to travel became a privilege granted or revoked at the pleasure of the state.

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