North Dakota Bill Outlawing DUI Checkpoint Passes House

Just take a look at last week’s post. According to
statistics obtained by Insurify, an auto insurance comparison website, North
Dakota was ranked as the worst state when it came to drunk drivers. 5.73% of
people who responded to a questionnaire from Insurify indicated that they had a
history of DUI. 24.7% of people reported drinking excessively. What’s more,
nearly half of all fatal traffic collisions in the state involved alcohol.

Now, to some, this can be interpreted to suggest that North
Dakota might need additional DUI enforcement and preventative measures such as
DUI checkpoints. However, to others, like the North Dakota House of
Representatives, the numbers are an indication that DUI checkpoints, as
currently deployed, are not working in that state and maybe, just maybe, state
funds should be allocated elsewhere.

North Dakota House Bill 1442, which would prohibit the use
of DUI checkpoints in the state, was passed by a whopping majority of 79-14.
It’s now headed to the state Senate for consideration.

While the Highway Patrol is not taking a stance on the
issue, Fargo Police Chief David Todd and Cass County Sheriff Jesse Jahner
oppose the legislation arguing that DUI checkpoints are tools necessary for law
enforcement to stop and prevent drunk driving.

The bill’s primary sponsor, Rep. Rick Becker, however,
claims that the argument that DUI checkpoints are an effective tool in
combating DUI’s is “cliched” and have been “proven inadequate.”
There’s something to be said about Beckner’s argument.

Between January 2017 and December 2018, the Highway Patrol
conducted 16 DUI checkpoints in North Dakota, which only resulted in 17 DUI
arrests. Only 17. This is a drop in the bucket compared to the 1,135 DUI
arrests made in 2017 and the 1,158 DUI arrests made in 2018 by the Highway
Patrol.

The ACLU of North Dakota issued the following statement
regarding House Bill 1445:

“The ACLU of North Dakota supports House Bill 1442. Our
constitutional right under the Fourth Amendment to live free of ‘unreasonable
searches and seizures’ is one of our most cherished – and most threatened.
While traditional Fourth Amendment violations continue, new areas of concern
crop us every day. We need to ensure that the Fourth Amendment, written over
200 years ago to protect our ‘persons, houses, papers, and effects’ from
intrusive searches, evolves to protect today’s equivalents.”

The ACLU is alluding to the fact that the courts have in the
past allowed law enforcement a freebie in stopping motorists (which under the
law is a “detention”) without the normally-required probable cause and/or
warrant when it comes to DUI checkpoints. The courts have continued to justify
this exception to the constitution by claiming that the admitted invasion of
privacy of the driver by law enforcement is outweighed by law enforcement’s
interest is preventing drunk driving.

Matt Agorist, columnist for freedomoutpost.com, writing on
this very topic said it best: “To those who would say, ‘if you are not
doing anything wrong, you should have nothing to hide,” and support these
checkpoints, you are the problem. Families do not draw the curtains in their
homes at night because they are doing something wrong. One does not lock the
bathroom door in public because they are doing something wrong. It is about
maintaining, asserting, and protecting your rights – without being forced to
lose your privacy.”

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States with the Most Drunk Drivers

Insurify,
an auto insurance quotes comparison website, used questionnaire information
gathered from their over 1.6 million car insurance shoppers, excessive drinking
and traffic fatality information from the Centers for Disease Control (CDC),
and population information from the United States Census Bureau to determine a
national rate of DUI history as well as a breakdown by state. Alaska was
omitted from the analysis due to insufficient data.

Insurify’s
team of data analysts analyzed approximately seven years of driver history and
came to some interesting conclusions. The nationwide average of their
applicants who reported a prior DUI was 2.15 percent. Northern states seemed to
cement their spots as DUI territory and some of the least populated states
seemed to have some of the highest number of DUIs. The team also found a
moderate correlation between the rates of DUI, excessive drinking, and
alcohol-related traffic deaths. Resulting in a reasonably predictable
assumption that in the states with higher DUI count, the rates of drinking and
alcohol-related driving deaths will also be higher.

According
to the CDC, 18 percent of Americans drink excessively on a regular basis across
the country. Of the top 10 states that Insurify came up with, six of the states
contained cities that fell within 10 percent of the country for excessive
drinking and up to 26.5 percent of adult residents reporting over-drinking.

The
data analyzed by Insurify resulted in following the rankings and numbers:

10.
Colorado

            – Drivers reporting a history of
DUI: 3.13%

            – Traffic fatalities involving
alcohol: 34.7%

            – Adults reporting excessive
drinking: 19.1%

9.
Iowa

            – Drivers reporting a history of
DUI: 3.23%

            – Traffic fatalities involving
alcohol: 25.4%

            – Adults reporting excessive
drinking: 21.0%

8.
Nebraska

            – Drivers reporting a history of
DUI: 3.34%

            – Traffic fatalities involving
alcohol: 35.6%

            – Adults reporting excessive
drinking: 20.4%

7.
Minnesota

            – Drivers reporting a history of
DUI: 3.47%

            – Traffic fatalities involving
alcohol: 30.9%

            – Adults reporting excessive
drinking: 21.1%

6.
Idaho

            – Drivers reporting a history of
DUI: 3.49%

            – Traffic fatalities involving
alcohol: 32.4%

            – Adults reporting excessive
drinking: 15.4%

5.
Montana

            – Drivers reporting a history of
DUI: 3.61%

            – Traffic fatalities involving
alcohol: 46.3%

            – Adults reporting excessive
drinking: 21.8%

4. Wisconsin

            – Drivers reporting a history of
DUI: 4.07%

            – Traffic fatalities involving
alcohol: 36.9%

            – Adults reporting excessive
drinking: 24.5%

3.
South Dakota

            – Drivers reporting a history of
DUI: 4.12%

            – Traffic fatalities involving
alcohol: 35.2%

            – Adults reporting excessive
drinking: 17.7%

2.
Wyoming

            – Drivers reporting a history of
DUI: 5.56%

            – Traffic fatalities involving
alcohol: 35.3%

            – Adults reporting excessive
drinking: 17.5%

1.
North Dakota

            – Drivers reporting a history of
DUI: 5.73%

            – Traffic fatalities involving
alcohol: 46.7%

            – Adults reporting excessive
drinking: 24.7%

In
looking at the numbers from the top 10 percentage of drivers reporting a
history of DUI, to say there is a correlation between the number of drivers with
a history of DUI and number of traffic fatalities, and reports of excessive
drinking seems to be an understatement. But it does bring up some interesting
questions. How was excessive drinking defined in the questionnaire? Did
multiple offenses by the same driver also constitute as excessive drinking?
Given the data patterns found, it would be interesting to further analyze how
each state has differed in handling their DUI numbers and if differences in
legislation has contributed to any of these numbers or if it strictly
correlates to things such as population and access to public transportation.

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Should Waze be Allowed to Post DUI Checkpoint Locations?

I’m sure most of you have heard of Waze, possibly even use
it yourself. On the off chance that you haven’t heard of it, Waze is a
smartphone app developed by Google that provides real-time traffic information
for drivers. Users simply plug in their destination address or location and
Waze provides the quickest possible route using GPS and real-time user input
while en route. While driving, not only are users directed to the fast route,
but they are also made aware of upcoming traffic, obstacles in the road, street
closures, and yes, police presence, including the location of DUI checkpoints.

The New York Police Department is not happy about it and is
seeking to stop it.

The NYPD has sent a letter to Google demanding that it stops
allowing users to post the location of DUI checkpoints claiming that the app is
“encouraging reckless driving.”

“Individuals who post the locations of DWI checkpoints
may be engaging in criminal conduct since such actions could be intentional
attempts to prevent and/or impair the administration of the DWI laws and other
relevant criminal and traffic laws. The posting of such information for public
consumption is irresponsible since it only serves to aid impaired and
intoxicated drivers to evade checkpoints and encourage reckless driving,”
NYPD acting Deputy Commissioner Ann Prunty said in the letter to Google dated
February 2.

Although Waze does not have a feature that specifically
alerts drivers about upcoming DUI checkpoints, it does notify drivers of
upcoming police presence.

“We believe highlighting police presence promotes road
safety because drivers tend to drive more carefully and obey traffic laws when
they are aware of nearby police. We’ve also seen police encourage such
reporting as it serves as both a warning to drivers, as well as a way to
highlight police work that keeps roadways safe,” a Waze spokesperson said
in a statement to CNN last week. “There is no separate functionality for
reporting police speed traps and DUI/DWI checkpoints — the Waze police icon
represents general police presence.”

However, in Waze’s feature that displays upcoming police
presence, users can report the presence of a DUI checkpoint as a comment about
what they have observed including whether the police presence is a DUI
checkpoint.

Law enforcement complaints on the posting of DUI checkpoint
locations is nothing new. In July of 2016, the National Sheriff’s Association
released a statement which said, “Evidence on social media shows that people
who drink and drive use Waze’s police locator feature to avoid law enforcement.
…The facts are clear. It is just a matter of time before we start seeing the
dangers that lurk within the Waze app’s police locator feature.”

The California Supreme Court in the 1987 case of Ingersoll
v. Palmer held that, for DUI checkpoints to be constitutional, they must meet the
following criteria:

1. The decision to conduct checkpoint must be at
   the supervisory level.
2. There must be limits on the discretion of field
   officers.
3. Checkpoints must be maintained safely for both
   the officers and the motorists.
4. Checkpoints must be set up at reasonable
   locations such that the effectiveness of the checkpoint is optimized.
5. The time at which a checkpoint is set up should
   also optimize the effectiveness of the checkpoint.
6. The checkpoint must show indicia of official
   nature of the roadblock.
7. Motorists must only be stopped for a reasonable
   amount of time which is only long enough to briefly question the motorist and
   look for signs of intoxication.
8. Lastly, the Court in the Ingersoll decision was
   strongly in favor of the belief that there should be advance publicity of the
   checkpoint. To meet this requirement law enforcement usually make the
   checkpoints highly visible with signs and lights.

Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment.Having said all of that, nothing prevents a driver, nor should it, from letting others know when and where a DUI checkpoint is. Waze has not provided a feature that specifically points out DUI checkpoints. Rather, users can advise of DUI checkpoint locations in comments. How is this any different than speaking about police activity with friends and family in person, or in a text, or in an email? How is it any different that speaking about police activity on Facebook, Twitter, or Instagram? It isn’t any different, and to allow law enforcement to prevent such speech would be a violation of the 1^st Amendment. Doing so would also open the door to allow law enforcement to dictate what we can or can’t say on our social media sites. That is not acceptable.

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New Jersey Forensic Lab Scandal Likely to Affect Thousands of DUI Cases

People’s
opinions and memories are subjective, which is why in the court of law, science
and factual evidence is often the nail in the coffin, so to speak. If DNA
evidence from a suspect matches the one said to have been found at the scene of
the crime, even when the suspect “does not remember” being there, doubt gives
way in favor of the DNA evidence. However, what if there was reason to believe
that the lab mislabeled the samples, or that the machine that ran the tests
were never cleaned or not properly calibrated? Now, what was once factual
evidence is now less than reliable, perhaps even completely inaccurate.

Lab
technicians are human. Therefore, no matter how careful one may be, it is
undisputed that there is always the chance of human error. Unfortunately,
however, there is difference between innocent human error and a concerted effort
to undermine forensic testing in criminal cases, including DUI cases.  

If
you have read our articles in the past, it should come as no surprise that
another forensic lab, this time in New Jersey, has made a conscious effort to
allow inaccurate evidence to pass through the lab doors and entered in court to
convict drivers in drunk driving cases within that state.

Many
of the breathalyzers used across the country are manufactured by Alcotest. This
machine, although fairly accurate when used correctly, needs to be calibrated
to ensure its accuracy. Sergeant Marc Dennis of the New Jersey State Police’s
Drug and Alcohol Testing Unit was responsible for conducting tests twice a year
on machines for five different counties to determine if recalibration was needed
and to administer the recalibration where necessary. It was found that Dennis
did not perform the required calibrations and, to make matters worse, he also
falsely certified the accuracy of the machines in the paperwork filed with the
state. Thousands of people in the state of New Jersey were convicted based on
the results of these uncalibrated machines. Dennis was criminally charged with
misconduct and tampering with public records in September of 2018 and the New
Jersey State Administrative Office of the Courts was notified by the attorney
general’s office that over 20,000 breath samples were in question.

The
New Jersey Supreme Court ordered an extensive hearing regarding the failure to
follow proper calibration procedures by Sergeant Dennis. The state Division of
Criminal Justice brought the charge, but the division’s director stated that
the omission of the calibration step does not undermine the credibility of any
of the State Police test results. However, the New Jersey Supreme Court
determined in their opinion issued in December 2018 that the some 20,000 breath
tests done by the uncalibrated machines could not be trusted.

All
of those cases will need to be reviewed, and there is a high probability that many
of those cases will be dismissed.

Whether
Dennis’s actions (or lack thereof) came from laziness or as a means to advance
his career, such misconduct is sadly not uncommon. There have been other
reported cases of forensic misconduct in the New Jersey State Police, as well
as other states such as Massachusetts, Oregon and Texas. Although in Dennis’s
case, his actions were noticed by a supervisor who is said to have “immediately
reported to internal affairs,” the truth is his actions went unnoticed for
years.

Back
in 2009, the U.S. National Research Council gave a report regarding forensic
practices across the country. What they found was a lack of accreditation for
crime labs and lack of certification for forensic scientists. Instead of having
the ability to rely on evidence being produced by forensic labs, whose precise
job it is to produce accurate scientific evidence, we’re left wondering if
further investigation needs to be done to determine if the lab is doing what it
should be doing to ensure the reliability of the evidence it is processing.

Movement
towards forensic reform slowly gained momentum after this report and in 2016,
the U.S. President’s Council of Advisors on Science and Technology relayed
similar concerns in a report and requested an independent oversight commission
for labs across the country. Unfortunately for the reform movement, then-U.S.
Attorney General Jeff Sessions, shut down the National Commission on Forensic
Science in 2017, effectively also shutting down the idea for a national
independent oversight committee.

Although
we may have stalled, or possibly even have taken a few steps back, with regard
to ensuring the reliability of forensic labs throughout the country, hopefully
states will take these scandals as a wake-up call to adopt better measures of
ensuring reliability of their forensic testing. In the meantime, the legal
system runs the risk of wrongfully convicting drunk drivers, or any criminal
suspect for that matter, and defense counsel should do everything in their
power to make sure that faulty evidence be identified and thrown out.

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Massachusetts Judge Throws Out More than 400 Breathalyzer Results

The topic is nothing new to this blog; breathalyzer results used to try to convict people of a DUI are thrown out because of their lack of reliability.

The latest incident comes from Massachusetts where a judge ruled that breathalyzers in over 400 DUI cases must be thrown out until the machine that police in that state use to determine a driver’s blood alcohol content can be proven as accurate.

In the consolidated case, Judge Robert Brennan found that the Office of Alcohol Testing had failed to release evidence to DUI defense attorneys that breathalyzers used in their client’s cases were inaccurate. As a result, the head of the office was fired, the results of the breathalyzers were thrown out, and prosecutors are scrambling to find additional evidence to prove the intoxication of those drivers.

According to Massachusetts law, if someone refuses a breathalyzer, their refusal cannot be revealed in a DUI trial against that person as a means to avoid prejudicing a judge or jury. When that happens, prosecutors are forced to rely on law enforcement officers’ testimony that a person was intoxicated based on their observations.

“I expect to see more of an emphasis on observations of the subject, both at the scene and at the station while being booked and in custody,” said Bellingham Police Chief Gerard Daigle. “Recognition of the signs and symptoms of impairment will be crucial. It’s similar to what is needed if the tests were refused.”

 Additionally, Judge Brennan said that the Office of Alcohol Testing must undergo significant reform including providing additional training for staff and instituting internal regulations for complying with discovery requests in criminal cases, including DUI cases, similar to those that are followed by the state police’s crime management unit.

“Right now, there’s serious cause to doubt the scientific results,” said Massachusetts attorney, Daniel Cappetta. “Judge Brennan has rightly decided that these tests shouldn’t be used to take anyone’s liberty.”

The Office of Alcohol Testing is planning on applying for nation accreditation by August of this year and district attorney offices will be monitoring the office’s progress.

“We are reviewing yesterday’s ruling,” said District Attorney, Marian Ryan. “Moving forward, we will continue to be in contact with OAT regarding the date for their compliance with the judge’s order.”

This is not the first time Massachusetts has dealt with issues of faulty breathalyzers. In fact, this is not the first time Judge Brennan has overseen DUI cases dealing with the reliability of the state’s use of breathalyzers.

In September of last year, I wrote Tens of Thousands of DUI Cases Affected by Tainted Breathalyzers in Massachusetts where the same Judge Brennan, who was presiding over proceedings challenging the reliability of breathalyzers since 2015, was provided with an agreement that prosecutors were not use breathalyzer results dating back to 2011. The reason was due to the lack of proper calibration of the breathalyzers since the state purchased them in 2011.

I’ve said it before and I’ll say it again, drivers should never submit to a pre-arrest breathalyzer and they should only submit to required chemical test breathalyzer (rather than a blood test) if they’re unsure whether their blood alcohol content was above or below the legal limit. The reason for this is precisely because they are inaccurate. Whether through inherent mechanical flaws or less-than-trustworthy toxicology labs, if a driver’s blood alcohol content is slightly above the legal limit, it is easier for defense attorneys to argue that there’s a chance that the driver’s blood alcohol content is actually below the legal limit.

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