The 3-Headed Dragon

The criminal justice system is an adversary system by design. The police do not represent your interests. The prosecutor does not represent your interests. The judge does not represent your interests. Moreover, the criminal justice system is not an even playing field. If you do not stand up and demand a fair trial, you will absolutely positively find yourself on a gigantic lugubrious conveyor belt leading inexorably to a criminal conviction. The milieu in which D.U.I.'s are prosecuted today compose a dangerous cocktail, mixing as it does various ingredients of human mind-set and behavior that are antithetical to a fair adjudication. While most persons charged with D.U.I. are guilty, an increasingly distressing number are not. One false accusation is too many.

As you prepare to enter the judicial system --guilty or not guilty-- you should brace yourself for the adverse effect that high emotions will have on obtaining a fair, impartial outcome of your case. If you are guilty, there is inherent danger of being denied a fair trial. If you are not guilty, but have nevertheless been swept up in the hysteria, may God have mercy on your soul, because the criminal justice system sure as Hell will not.

If you hear nothing else I say, hear this: if and when you decide to fight the D.U.I. charge, it is imperative that you understand that the fight is a fight against a 3-headed dragon: the police, the prosecutor and the judge. Approach it accordingly, or just plead guilty.

Police Officers and DUI There is nothing so dangerous as a well-meaning person in authority on a perceived mission from God... and there are very few missions in routine police work in modern America more likely to be perceived as such than the apprehension of drunk drivers. There is an old wisdom: that in the history of mankind, more harm has been done to individual liberty by well-meaning men operating in complete good faith and in earnest pursuit of that which they hold to be righteous, than by all the evil deeds of all the world's despots combined. That is the reality in a nutshell for too many police officers and D.U.I. Police officers in general see themselves as "the good guys", and in most instances they are indeed very good people, doing a very difficult job. They are heroic in many ways. My experience is that the average police officer would no sooner intentionally deprive an American citizen of his or her rights than would Patrick Henry himself, and that they are generally very genuinely offended at the suggestion that they have done so. Nevertheless, there are aspects of the job of a police officer in a D.U.I. case that can unintentionally result in the same harm, however much it occurs without malice or ill-motive. We can all understand how easy it would be to slip into doing wrong if you're doing it in the name of what you perceive to be a great right.

It's 2:00 in the morning. The officer has seen the "California stop" --or whatever-- and now, having approached you as you sit in your car, he smells alcohol. In the officer's mind you have subconsciously been transformed from an American citizen to just another drunk driver. Rights are not the officer's concern. Suddenly, its all about making sure that this driver he perceives as intoxicated, doesn't "get off". Wrong --done in the name of right-- is most often not consciously done, but is too frequently done nevertheless. It is as though the vision of "right" blinds them to the "wrong" done in its name.

Then, there's the training. A good officer strives to do as he's been trained to do. But, in determining whether a person has had too much to drink to safely operate a motor vehicle, an officer's D.U.I. enforcement training has increasingly gravitated toward displacing individual officer judgment and rational discretion in favor of a slavish, mechanical, checklist-type approach to "canned" observations. Such an approach to training drives the officer into a foregone conclusion.

Another factor that can affect a police officer's accuracy is the mind-numbing routine of D.U.I. enforcement: the same observations, the same forms, the same checklists in case after case, year after year.

In my opinion, these are the two main reasons that videotapes are so favored by defense counsel and why police officers are so typically opposed to using them. Think about that. The videotape is an actual motion picture -in color with sound - of what transpired. Why, then, would most officers prefer not to have them? Think about it. To understand that irony is to understand the phenomena that mechanical, robotic training together with endless repetition too often leads to a videotape presentation in a courtroom embarrassingly at odds with a written report.

Unfortunately, however well-intentioned and in good faith the motives of most police officers are, if an officer's investigative techniques and/or frame of mind in pursuit of drunk driving is a Pavlovian response to canned stimuli, they nevertheless present the same danger of a false accusation as the officer who knowingly misrepresents. Great harm can be done and then rationalized into a completely clear conscience, when done in the name of right... and there is nothing in this world quite so righteous to the average police officer as D.U.I. law enforcement.

Prosecutors and DUI

Under the American constitutional separation of powers doctrine, prosecutors are part of the judicial branch - not the executive branch (which includes the police). The system is designed so that the office of the prosecuting attorney, exercising discretion as an officer of the judicial branch of government, will act as a check and balance against the potential abuses of the police. Interestingly, this constitutionally saddles the prosecuting attorney with the seemingly ironic obligation to ensure that you, as an accused citizen of this great country, get a fair trial!

It is in the nature of their work, however, that D.U.I. prosecutors work very closely with their witnesses, the police. They see and work with these officers over and over again, whereas they likely will never see you ever again. It is therefore not surprising that rather than fulfilling their constitutional roles as a check and balance against excesses of the police, too frequently D.U.I. prosecutors come to identify their roles incorrectly as lawyers whose clients are the police; as being solidly and unapologetically on the police team.

From where you stand, charged with D.U.I., this is not an unimportant blurring of the roles. A prosecutor who believes his bread to be buttered on the side of being a part of the police team, unwittingly becomes part of the problem. Instead of acting as a check & balance, he or she operates in effect as a mere component of the "bad-guy processor" conveyor belt. Rather than acting as a watchdog for police misconduct, such a prosecutor is likely to rationalize "winking" at police misconduct… once again, as a wrong done in the name of right.

My experience over three decades of criminal law practice, is that prosecuting attorneys are, for the most part, good people doing vitally important work. Prosecutors usually do, however, bring to their work a strong sense of righteousness. They generally are infused with the nobility and societal value of their role (or gain this attitude shortly after arrival). D.U.I. prosecutors typically work under the pressures of incredible caseloads. They usually operate with too little assistance. They are typically paid relatively poorly, and they're frequently the least experienced attorneys in the prosecutor's office.

The Prosecuting Attorney is an elected position within each county. As such he/she is faced with the same pressures from M.A.D.D. and the public that the judge and legislature encounter in D.U.I. cases. Show me an elected prosecuting attorney who didn't have a "I'll be tough with drunk drivers" as part of his campaign, and I'll show you a Tyrannosaurs Rex that is alive and well! The elected prosecutors also face the added pressure of feeling as though it is imperative they have the political support of the police at election time. That support doesn't come from constitutionally acting as a bulwark against police excess. The conveyor belt prosecutor, however, is understandably very popular with the police at election time.

For all these reasons (not to mention the fact that they probably truly do not like drunk driving), there is an increasing and readily apparent tendency for the elected prosecutor to set "D.U.I." prosecution standards for their respective offices, that are to varying degrees binding on the poor young deputy prosecutors who are in the trenches actually fighting the battles. These standards vary from county to county, and will directly affect the means and manner by which your case will be adjudicated. This is so whether or not you are guilty of the charge, and irrespective of the specific facts or circumstances of your case.

Judges and DUI

Judges are also elected. Unlike the legislature and prosecutor, however, judges are not supposed to be swayed by the hue and cry in the street; the public's riotous clamor for a lynching. The constitutional design is that the judiciary will act as a check and balance; that theirs will have a leavening effect on the truth-finding process. In practice, however, it is a tad difficult for mere mortal judges to be so "above the fray" when they are forever having to be looking over their shoulder, worried about keeping their job.

Judges have, after all, given up their private law practices or former jobs as prosecutors. They don't have an office or books or clients or accounts receivable. It would take a good deal of money and time to re-develop a viable law practice after an unsuccessful election. It is only human, therefore, for judges to be alert to which side furthers their self-interest. Moreover, D.U.I. cases are tried in the district or municipal courts. These are the small ponds. The "big fish" in those small ponds are the D.U.I. cases. One doesn't get elected in the small pond by campaigning, "Elect me and I'll get tough on litter-bugs".

For all these reasons, when it comes to D.U.I., judges too frequently perceive a public expectation that they exact a blood toll. This is likely a misperception on their part. The truth is that all the public really expects of a judge is that he or she be a judge; to be wise, fair and impartial. From where you are, charged with D.U.I., it makes no practical difference that their perception is erroneous.

Good judges apply established principles of law in a fair and impartial manner to the individual facts of the cases and controversies before them, and in that way do they come to a just, reasoned decision. Bad judges, by contrast, are "outcome-oriented". They ferret-out the safest or most popular outcome for the case, and then work hard to prevent the facts and/or the law from getting in the way. There are, of course, good judges, even on D.U.I. cases. There are, unfortunately, many bad judges, especially when it comes to D.U.I., and this is true whether or not you are guilty of the offense.

Most D.U.I. cases do not proceed to trial. If, however, yours is one that does, you are strongly advised to well consider whether your case should be tried to a judge or to a jury. In my opinion, due to the factors outlined above, except in extremely rare circumstances, a lawyer who tries a D.U.I. case to a judge is arguably guilty of legal malpractice.

The Legislature and DUI When the people speak in a democracy, the government is supposed to listen. When it comes to D.U.I., the legislature does listen. Legislators are elected. They respond to the public will, as they perceive that will to be. There is no band wagon that comes before the legislature that is more easy to jump on than anything against drunk driving. No matter how ill-conceived the proposed legislation may be, God help the poor legislator who foolishly dares to urge caution, reason or proportionality with respect to any bill about drunk driving. M.A.D.D. and others will do everything in their considerable power to crucify him/her in the next election. The important thing is that whether you are guilty or not guilty, as one charged with D.U.I., you will be experiencing the effects of this legislative pressure; effects such as:

Ignoring Constitutional Principles: Statutes that ignore the constitutional presumption of innocence and ignore the fundamental concepts of due process, and punish as "guilty" even those who were never found guilty! For example:

Deferred Prosecution: If a previous D.U.I. charge was dismissed because you sought treatment for alcoholism, the statute ignores the presumption of innocence and ignores the previous due process, and requires that you be sentenced on a new D.U.I. as though you had been found guilty previously…even though in fact the previous charge was dismissed!

Negligent Driving, First Degree: If a previous charge of D.U.I. was not well-founded, and was therefore reduced to the lesser charge of Negligent Driving, First Degree, the statute ignores the presumption of innocence and ignores the previous due process, and requires that you be sentenced on a new D.U.I. as though you had previously been found guilty of D.U.I… even though you had not!

Reckless Driving: If you are found guilty D.U.I., and you were previously charged with D.U.I., but because the charge was not well-founded, you were found guilty only of the lesser charge of Reckless Driving, the statute ignores the presumption of innocence and ignores the previous due process, and requires you to be sentenced on the new D.U.I. as though you had previously been found guilty…even though you never were!

Double Jeopardy: Both the constitution of the United States as well as the Washington State constitution prohibit double jeopardy. Yet, Washington law does call for double jeopardy for a D.U.I. This is because "Civil" sanctions (loss of driver's license and high-risk insurance) are imposed separate from and in addition to the criminal penalties. These sanctions are imposed for the same act done at the same time as the criminal act, in exactly the same manner, by the same person with the same state of mind. These double punishments are imposed ... even if the charge was not well-founded and therefore dismissed or even if a jury rendered a verdict of "Not Guilty" on the criminal charge!

The State Supreme Court has "winked" at the double jeopardy problem by simply ruling that the elephant painted yellow is a 2500-pound canary! When confronted with the obvious double punishment that the legislature had created for D.U.I., the Court ruled in essence that this double punishment was not in violation of the double jeopardy prohibition…for the reason that having the driver's license suspended in the criminal case was punishment, under the civil statute it is driver education --not punishment-- and therefore not double punishment!

The Supreme Court is the final word on the subject. It is therefore the law. However, this remains -so far-- the United States of America. Our fundamental principles do not require us to be stupid and silent. It is still permissible -for now-to decry this hypocrisy for what it is: government gone amuck in an objective-oriented pursuit…the constitution be damned!

Kangaroo Court Due Process: Statutes that outline a due process procedure that makes a mockery of our time-honored concepts of fair play and substantial justice; statutes that provide the equivalent of justice that a Jew would have expected to receive in a Nazi courtroom, or that an African American would have expected to obtain in Mississippi in 1943. I'm talking about the Department of Licensing hearings, in which you face:

Conflict of Interest: A system where the ruling being adjudicated (the suspension of your driver's license) is judged by an employee of the very Department of Licensing which suspended your driver's license - not unlike the fox guarding the henhouse. If you elect to contest the suspension, the hearing examiner will almost certainly be a clear advocate for the position of the Department of Licensing, rather than an impartial arbiter of facts and law. This hearing examiner is put under pressure by their employer, the Department of Licensing, to rule in favor of the Department of Licensing. This is a system where the supposed "impartial fact-finder" actively seeks out and makes certain that evidence required by the State is "in the file" before the hearing even begins.

Stacked Deck: There is no face-to-face confrontation of your accuser since the hearing is held via telephone to convenience the police. Moreover, the police officer doesn't even have to appear to make his case, since the statute provides that the officer's reports, once filed, constitute an adequate State's case!

Anything Goes: Evidence is admissible by means of hearsay. Moreover, virtually "anything" is permitted to be considered; an approach that denies you the opportunity to challenge the legitimacy of the proffered evidence before it comes before the hearing officer.

Sham Appeal: The legislature cannot constitutionally deny you the right to appeal an adverse decision of the Department of Licensing. So, what they did instead is the next best thing for them. Under the statute you may appeal, but your driver's license remains suspended during the appeal process!

Since an appeal usually takes longer than the suspension period, the statute makes mockery of the constitutional right to appeal! The statute provides that this is so, unless two findings are made by the appellate judge at the outset of the appeal, one of which is entirely unlikely: 1) that a suspension during the appeal would result in irrevocable harm and 2) that the appeal issue is likely to be successful!

This is an absurdity as it requires the judge to make a ruling about the merits of the appeal before he or she even hears the full appeal! Once again, it is patently clear that the entire intent and effect of this statute is to deny you any meaningful appeal of a loss of his driver's license. This is shamefully disgraceful, but it is nevertheless the status of the law.

Voodoo Science: The D.U.I. law provides for evidence presumptions that are not founded on science or fact. For example:

Ignoring metabolism: Contrary to clearly established science, your breath alcohol content is presumed by statute to be the same within 2 hours of driving as it was at the time of driving. This is in the statute solely to make it easier to get a conviction, since it has no bearing whatsoever to the real world of human physiology or rational science.

Hiding the 500-pound gorilla: Your partition ratio (roughly this is the ratio of alcohol in your blood to alcohol in the lung air), which is critical to the accuracy of breath testing devices, is presumed by the D.U.I. statute to be "average". This is so even though every scientific study ever conducted has shown wide variation in the partition ratio. This is important, since if your partition ratio is not average, then the breath test reading is inaccurate and nobody would have any idea that the error had occurred. Moreover, the statute is drawn such that it is impermissible for the jury to even be told about this critical reality of evidentiary breath testing; it is considered "irrelevant".

Un-ringing the bell: The statute provides that breath test is presumed accurate and goes before the jury where - once they've heard the reading - you can ask them to un-ring the bell and pretend they never heard it.

Branding: Whether or not you're found guilty of D.U.I., if you lose the D.O.L. hearing, you will be required to have a specially marked driver's license identifying you as a drunk driver (since no one else gets such a mark).

This is a "branding" no different in purpose or kind-- than the "I am a witch" signs that law makers in this country once required women accused of being witches to wear around their necks. It is no different that the yellow 6-pointed Star armbands that Jews were required to wear in Nazi Germany. Remember, this branding is required whether or not you're found guilty of the D.U.I.!

The legislature is so blind in their ambition to end drunk driving, that they seem to forget that the end does not justify the means; that this is not Nazi Germany; that this is not 17th Century America; that while the objective of eliminating drunk driving is necessary and compelling, it does not justify un-American means. Constitutional rights should not be "for most people" or "most of the time".

Credit Card Sentencing: Under the D.U.I. statute, sentencing for D.U.I. is so rigidly mandatory on the minimum end, that it is no exaggeration to say that the legislature might just as well have devised a system whereby the officer issues a plastic credit card-like ticket.

Under the D.U.I. card system, you would simply take your D.U.I. card down to the courthouse. There you would insert it into a slot in the wall. A few clicking sounds later, out would come your sentence --just as efficiently as using an all-night bank teller machine, or a gas pump.

The sentence you would receive under such a D.U.I. card system would be no different in substance or form than the sentence now handed down in open court -except that it would have the distinct and substantial benefits of being quicker, less expensive, and best of all, without all the pretense --all the pomp and ceremony left over from yesteryear; all the empty form from which you could derive the mistaken impression that some kind of consideration and/or discretion was actually being given the individual facts of your case…only to be cruelly disappointed in the end to find what a hollow promise your system in fact turned out to be, the one time in your life you're ever going to need it!

Nobody Really Wants Justice

Alan Dershowitz is one of America's best and most accomplished criminal defense lawyers. He wrote a book entitled "The Best Defense" (published by Vintage Books, New York City, 1983), in which he described the criminal justice system as he had experienced it over his career. His observations can go a long way to enable you to understand the system you now face.

1. Almost all criminal defendants are, in fact, guilty.
2. All criminal defense lawyers, prosecutors, and judges understand and believe Rule 1.
3. It is easier to convict guilty defendants by violating the Constitution than by complying with it, and in some cases it is impossible to convict guilty defendants without violating the Constitution.
4. Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.
5. All prosecutors, judges and defense attorneys are aware of Rule 4.
6. Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to convict guilty defendants.
7. All judges are aware of Rule 6.
8. Most trial judges pretend to believe police officers who they know are lying.
9. All appellate judges are aware of Rule 8, yet many pretend to believe the trial judges who pretend to believe the lying police officers.
10. Most judges disbelieve defendants about whether their constitutional rights have been violated, even if they are telling the truth.
11. Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime charged (or closely related crime).
12. Rule 11 does not apply to members of organized crime, drug dealers, career criminals, or potential informers.
13. Nobody really wants justice

I ruefully must report to you, that after my own 31 years in the game, the observations of Mr. Dershowitz mirror my own… except that I would add D.U.I. to Rule 12.

A Lawyer Can Make a Difference

If I am but half correct in my appraisal of the system you face, you need a lawyer! The absolutely only way to avoid the mandatory minimums of the D.U.I. statute is to avoid a finding of guilty, and the only way to avoid a finding of guilty is to be represented by the best lawyer your circumstances permit.