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Law Office of Michael J. Kennedy

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Drunk Driving - What to Do When Stopped, and What's it All About?

You need to know what to do if stopped, and then you need to understand what the political scam is all about.

What should you do and not do if you are stopped for drunk driving!

  1. Beware of drinking establishments outside of which bored and zealous cops lurk in the shadows to pull you over when you leave the parking lot.  No judge, beholden to the cops at the next election [“endorsed by law enforcement” is the most sought-after electoral announcement in judicial campaign materials!], is going to rule in your favor when you accurately claim that you were targeted for being in a certain drinking place and were pulled over without committing any driving offense.  If a smiling, shiny-badged officer says you were weaving, speeding, ran a red light, or failed to signal a turn, you could have a bus full of nuns swearing the opposite and the judge would still side with the cop. [“Endorsed by law enforcement” on one's campaign literature is all a judge needs for re-election.]
  2. When you are pulled over, make a controlled stop and turn off your engine.  Start recollecting where your license, insurance, and registration are, and be prepared to competently turn them over to the officer without spilling them on the floor.
  3. To the officer's query of “do you know why I pulled you over?,” politely say “no” and nothing else.  Do not admit to speeding, turning, knowing what the speed limit is, anything.  Do NOT admit to drinking any alcohol.  Do NOT admit to anything.  Do not say where you were coming from or where you were going.  Shut Up! That does not mean lie – means politely decline to give historical information, subject to one new caveat discussed below.
  4. If the officer asks you to perform field sobriety tests, politely say No!  They are designed for failure, and there is no established, scientific causal connection between impairment by alcohol for driving purposes and one's performance on those non-driving balance and coordination tests.  If he asks you to blow into the pre-arrest breath device, politely decline; the so-called “science” associated with those junk boxes would not be admissible in any other type of case.  If he arrests you and tells you that you are required by law to submit to a blood or breath test, take a breath test. [Some attorneys say blood; I say breath; I will explain why in other circumstances, if need be.]  If you take a breath test, they are supposed to tell you that you then have a right to a back-up test of blood or urine.  They don't like to give the urine option, even though the law requires it. Tell them you want a back-up test of your urine.
  5. Then say no more, subject to one exception.  The “shut up” requirement is the hardest to follow.  I have had clients tell me “But I am honest; I don't want to lie.”  I didn't say to lie; I said to say nothing!!!!!  I know it is hard to do; most attorneys can't shut up, so it is hard for their clients to do so.  Trust me – it NEVER helps to talk to the cops when you are in these circumstances – NEVER, ever. The one exception becomes helpful and necessary thanks to a recent U.S. Supreme Court anti-liberty opinion.  The Court held that, prior to arrest and advisal of Miranda rights, it is not illegal for the government to comment on the fact that the suspect did not say something that one might be expected to say if he were not guilty.  Therefore, if the cop notes that you have a high reading on the breath device, you might want to comment that the device must be wrong, because you did not drink enough to become impaired.  And then shut up; don't fall into the trap of then answering clarifying questions [which at the point should be preceded by Miranda advisals, but frequently is not].   You might, if you have the presence of mind to do so, tell the officer that you do not waive your 4th, 5th, and 6th Amendment rights, and you want a lawyer.
  6. At the jail, quietly go through the booking process and say nothing except for the biographical information they are asking of you.  Say nothing else.  Make your phone call and wait for the horrors of the event to subside.
  7. If they take your license and give you a pink sheet, that is your temporary license, good until the DMV proceedings are concluded.  You MUST make a call to DMV within 10 calendar days of your arrest, without exception, to report the arrest and set up a hearing date.  If you do not make that call [or have your attorney do so], you will lose the chance for a hearing about the lawfulness of the license suspension that is associated with the chemical test being > .08%.  You or your attorney must make that call within 10 days of the arrest.
  8. You should retain a DUI lawyer.  All DUIs can be fought and are winnable if you have the right lawyer.  Yes, the right one is expensive – but not nearly as expensive as a conviction will be, in the long and short run.  General lawyers, and general criminal lawyers, are not schooled in the intricacies of DUI law and practice – you must hire a DUI lawyer.  Not everyone advertising themselves as DUI lawyers are thus qualified.  Beware of the lawyers who put pressure on you about your conduct or to take a plea bargain or to settle the case early on; real DUI lawyers will put pressure on the government to get rid of the case.  Find out if the lawyer who claims to be a DUI lawyer is a member of either of the two main DUI lawyer organizations, California DUI Lawyers Association [CDLA], or the National College for DUI Defense [NCDD].  Find out if they have ever taught a seminar at either or both.  Drunk driving defense is like brain surgery: you would not hire a chiropractor if you had a tumor on the brain, and you should not hire the legal equivalent of a chiropractor if you have a .08% or greater BAC while driving, and for the same reason.
  9. Presume not that your government is being honest with you about this crime, about the statistics supposedly supporting it, nor about the agents executing and carrying out: government fraud and deceit are the signposts of the horrid journey into the realm of drunk driving criminality.  If “I am not a crook” was laughable and demonstrably false when uttered by the chief executive of the Republic, you would be foolish to give it more credence if uttered by lesser executives.  The executive branch has an agenda in these things [as in all things], and serving your interests, or those of your families, is not among them. They do not care about you or your problems, PERIOD.

Government propaganda relating to people's conduct and habits are problematic under all circumstances [a lesson we should have learned from the example of Josef Goebbels, Ph.D.], but when it spews alarmist falsehoods [think Goebbels again], it is flatly evil, especially when it invites some of the public to demonize others of the public, both sides of whom are paying for the evil propaganda.

The government's pogrom against drunk driving is a case in point.

In various media, we are exposed to the grand myth of the U.S. Department of Transportation's “Ad Council” propaganda blather that "buzzed driving is drunk driving." That is an utter falsehood and should not be sponsored by the government nor given prominent posting by newspapers and the broadcast media.

The definition of driving under the influence of alcohol in this state is very clear and precise, albeit grossly misunderstood. And, it seems, it is also grossly misrepresented by government to the jury-sitting public, and purposely so; think Goebbels yet again.

Let's look at the definition:

“A person is under the influence if, as a result of consuming an alcoholic beverage, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.”

You see, there is nothing about “buzzing,” because one can be cautious while experiencing a “buzz,” and one might not be cautious even if he never experiences a buzz.  It is not just any impairment by alcohol that is illegal, but only one of such a degree that one cannot exercise ordinary caution, yet there rarely is any caution discussion in DUI trials or investigations or propaganda.  Very rarely.  And no matter what other evidence there is, if there is no evidence about diminished caution, indeed no beyond-reasonable-doubt quantum of diminished caution, there cannot be a lawful conviction of drunk driving.  [“Have you all seen a person at a party who you know has had too much to drink?”, the stock DA query to a jury, has nothing to do with “caution,” yet it is grooming the jury for an outcome not related to the true charges.]

Note too that the alcohol at issue needs to have been “consumed.”  Consequently, the endogenous alcohol one produces in one's body as a function or metabolism, regardless of what that does to one's caution, cannot satisfy the criminal law definition of “under the influence.”  Moreover, we are told to assess the caution standard in terms of the circumstances facing the person at the time.  Lateness of night; nervousness of being hounded by the police, who might follow one for miles until there is a vehicular misstep rationalizing a detention and investigation; anxiety about family or job or finances; eagerness or reluctance to get home; street distractions – all of such things must be analyzed when a jury assesses the circumstances of the matter to decide the caution question.

There is no area of human endeavor so wracked with high-priced attention; governmental prejudice; government-funded agendas; political pressure on legislators, judges, cops, and prosecutors, as there is in the arena of drunk driving prosecution.  The community is overrun with “anti-drunk driving campaigns,” expensively and noisily sanctimoniously funded by politicians, community leaders and organizers, attorneys who will happily take your money to pretend to defend you on your drunk driving beef while taking others' money to tisk-tisk you for the same conduct, and lobbyists.  While we are inundated by such programs, how many have you seen that are devoted to eradicating murder, child molesting, rape, political and judicial corruption, abuse by police and other government types, or electoral duplicity?  None, of course.  Although those practicing the latter groups of outrages are the real demons in the Republic, much more effort is made to make demons out of drunk drivers than to bring to justice the real demons victimizing us.  People arrested for drunk driving are self-righteously demonized; those truly victimizing the populace have their ills rationalized away, or downright ignored. My God, we are a weird people.

Make no mistake about it, drunk driving is a political crime.  Its politics derive from the fights that gave rise to the 18th Amendment to the Constitution and Prohibition, and the political measures being taken now to demonize those arrested for drunk driving are in service to the distress that the prohibitionists experienced when the 21st Amendment repealed the 18th.  I have written elsewhere about the drunk driving exceptions to the Constitution, and to evidentiary and statutory law, and one glaring example hit the books not too long ago, revealing to all who might be harboring doubts that result-oriented politics are what colors all of governmental action in the field.

In the 1940's and 50's, fledgling science suggested that the alcohol which could be detected and measured on the breath resulted from alcohol molecules that passed from the blood to the alveoli in the lungs, which was then exhaled.  A certain equilibrium was imagined to exist between the alcohol in the blood and that in the alveoli, such that there could be a fixed conversion enabling breath percentages to approximate blood percentages. As a result, machines and statutes and regulations were established based on that nascent science – alveolar “air” = “breath” for breath alcohol percentages [simplistically].  Legally, breath alcohol for criminal conviction purposes has been enacted to mean alcohol on the breath that originates in the alveoli.

As with any science, evolving notions proved the original ideas to be incorrect.  The body of advanced science of the matter now realizes that the alcohol detected in one's exhalation comes not from the deep alveoli, but from capillaries in the airways before the alveoli, and that what is exhaled has virtually no alveoli-originated alcohol.  Consequently, when the criminal charge is that a person had, say, .08% BrAC, breath alcohol, one should be able to have a scientist testify that the number on the machine does not represent alveolar breath alcohol percentages, and therefore the .08%, as a criminal charge based on alveolar breath, is not scientifically accurate.  After all, we all know that the due process clauses permit a criminal defendant to put on evidence that what appears to be a crime is not, correct?

Well, not so fast – there are more than mere constitutional law and individual liberties at work here: there are the politics of drunk driving; there are state and federal statutes and regulations; there are our corporate pals who made $millions selling the devices that supposedly detect alveolar alcohol – what are we going to do about all of that establishment, if the true and contrary science were admitted to juries?

The solution for our state Supreme Court was the same as the solution Pope Urban VIII came up with when Galileo Galilei had the temerity to broadcast the true science about the Earth circling the sun: when establishment forces are faced with contrary and inconvenient truths, you declaim, deride, and banish the truth and preserve the establishment.  And that is what our Supreme Court recently did in the infamous Vangelder decision.  Our Supreme Court embraced Pope Urban VIII and opposed Galileo!  Federal regulators applying arcane and outmoded “science” were preferred over real scientists who decreed the latest scientific discoveries regarding breath and alcohol and the source of alcohol in expired breath.

There is not a balanced playing field here; there are purposeful and evil sorts who have axes to grind that they want to sharpen on the noggins of those arrested for, or suspected of, drunk driving, and you should not be their patsy.

Government propaganda wants to influence the perceptions of the public, particularly that portion of the public sitting on juries, and it wants to evict science from the realm of a crime that fundamentally is defined by physiological science, and it must be stopped.  Why do you think we see signs posted on the streets and highways exhorting people to call 9-1-1 if they know of a drunk driver?  That is to prejudice the potential jury pool.  How would you know if you are in the presence of a drunk driver?  You would not know by observing driving patterns of those around you.  There are sober people who drive horribly and impaired people who drive exceedingly well.  You don't see signs that suggest that you should call 9-1-1 to report murderers, rapists, child molesters, burglars, thieves, do you?  That is because the aim of the signs is not to have the populace apprehend drunk drivers or others suspected of crimes, but rather for the populace that may later sit on juries to become prejudiced against drunk drivers.

The Framers intended juries of citizens drawn from the community to view government's evidence against people's liberty with skepticism, the standard for which requires that people may not be found guilty without a quantum of evidence adding up to beyond a reasonable doubt.  And even if that quantum is present, a jury does not have to find a person guilty, and a conscientious one frequently will not.  Sadly, though, despite the Framers' understanding of the dangers of government power, juries increasingly lean in the direction of government in political crimes such as drunk driving, revealing that the propaganda has worked.  Jurors should not become pawns in this game of chess invading people's liberties: they were intended to be queens and knights.  And every time a juror votes against liberty because he/she presumes the government, or its agents, is telling the truth in these political crimes, he or she thereby spits on the blood shed by the Founding generation to preserve our liberties.

Although not everyone arrested for drunk driving is innocent, a high percentage are not guilty, by the constitutional standards applicable here, and they should be so found.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987

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