A Failure To Respect Driver’s And Citizen Rights Is Unacceptable And A Serious Violation.
What ever Happened To Respect And Manners?
I have viewed this video on several different sights, and suffice it to say that it has gone viral. I have not been able to confirm the authenticity of the video, but it appears to be an officer’s dash camera and depending on the state laws in the Officer’s jurisdiction, would be subject to public disclosure. It sounds as though the officer mentions “Charleston” and so South Carolina might be a good guess.
Even if the video is a “dramatization” the point is well made – officers can get very offended when citizens exercise their rights. Think of the difficulty you might have in telling an officer, in full uniform with pepper spray, badge and sidearm, that he can only search your vehicle, house, backpack, etc. if he has a warrant. That would be uncomfortable, at best. But, why?
Isn’t an officer a civil servant who is to embody the “protect and serve” mantra of our civil police forces? These are public employees who literally, and philosophically, work for us, the people. Why are we afraid? Why can they exercise such unfettered authority and aggression? Why do we need a video before we actual believe this abuse of power and discretionary power exists?
As a practical matter, one might simply answer that people today, not just law enforcement officers, have lost their manners. We’ve certainly all experienced attitude and/or rude service from someone we are paying to provide a service or are buying merchandise from. Sure, people have bad days, but when it comes to police officers, a bad is simply not an excuse. That we have lost our manners is not an acceptable excuse either. We cannot simply choose to stop obeying the Sheriff or Washington State Patrol because they are not polite.
The Department of Justice just concluded an investigation into the Seattle Police Department’s use of force practices and policies. In short, the federal DOJ concluded that the Seattle Police engaged in a pattern of excessive force in more than half the time during arrests! Certainly the politics, methods used to make this determination, etc. could be argued for hours; however, it remains clear that something is amiss with those tasked with actually protecting our constitutions and individual rights. For everyone’s sake, I hope that Seattle is not an indicative of how other law enforcement agencies are operated – hopefully they are the exception and not the rule. But given this video, perhaps Seattle is the norm?
As a defense attorney defending those accused of alcohol and drug related driving crimes such as Driving Under the Influence Of Alcohol/Drugs (DUI), Physical Control, Minor Operating After Consuming Alcohol, Minor in Possession (MIP), or Unlawful Possession of Marijuana, I have reviewed a number of video and audio recordings like the one here. While I have never observed an officer as rude as the one in the video, I have certainly seen very aggressive and apparent adverse reactions when citizens have exercised their rights. I certainly understand the need for officers to make safety their number one priority, but retaliation for exercising one’s rights is unacceptable in a free society. Furthermore, employing the use of a Tazer because it is easier than using social skills or training to avoid the use of physical force, is also unacceptable.
Why Isn’t There Always A Video Recording Of A Traffic Stop And Arrest?
The video here captures an officer having a meltdown and verbally abusing a citizen who politely declines an invitation to search his constitutionally protected vehicle unless the officer provides a search warrant. The irony of the situation is that police guilds, sheriffs, and law enforcement in general tend to resist the transparency, and actual safety, that a camera affords. I believe this is because the risk of the above video being shown to the public outweighs the benefits of government transparency in the minds of law enforcement.
I have asked prosecutors and law enforcement officers why only a very select few Washington State Patrol DUI investigations are captured by video. The canned answer: it a budgetary problem. Is this true? Or is this a pre-textual excuse to avoid actual video and audio evidence of an event in order that a Trooper or Deputy or Officer’s testimony and report are the bulk of evidence of an event. I argue that it is certainly the latter and I believe this because of personal experience – in court, providing live sworn testimony an officer testified that he stopped a client of mine for failure to use a signal. When asked if he was “sure,” or if he wanted to modify his testimony he declined. So I played the video of the stop, a video that showed my clients car actually using a signal. Then the officer makes contact and does NOT tell the person why he stopped her. While the officer confirmed the video was authentic, he continued to state, under oath that the car was stopped for failure to signal! Why? Simply because that is what he wrote in his report. I am sad to say that this officer no longer has a video and has risen to the level in his agency of that of Trainer of new cadets. It is for these reasons, I wish every officer had a video.
Ask nearly any criminal defense attorney defending traffic related crimes such as Driving Under the Influence, Reckless Driving, or Negligent Driving if they would prefer that the investigation and arrest of their client to be captured on video and the overwhelming answer is YES!
Video evidence removes the guesswork from an incident – was the person actually weaving in their lane? Yes, here’s the video of such driving OR no, there is no evidence of the fact that the officer stopped for a actual violation and therefore, the driver was illegally and unlawfully seized - a serious and flagrant violation of the State and Federal Constitutions. The camera capturesmore than just visual as the technology employs a lapel microphone and bot officer and driver’s voices are clearly captures. So with respect to the questions of “Did driver really stutter and slur all of her words?” “Was there an admission during the roadside tests that “I cant do these sober?” Once again, here’s the audio or no, the officer seems to have difficulty with his hearing. The list of information goes on, and I am sure you get the picture. More importantly is the recorded administration and performance of roadside sobriety tests. A violation of National Standards that each officer swears s/he is trained under renders the tests invalid, but officer’s rarely say they do not do them correctly, when in fact, their recitation of the standards is rarely correct. Once again, the utility of the video cannot be overstated.
From a citizens perspective it is difficult to believe that budgetary constraints are really the problem. The police routinely photograph accident scenes, and unfortunately, I often see law enforcement officers talking on cellular phones while driving in disobedience of the law they swear to enforce. As we all know there are very few cell phones without video/audio recording capabilities. This technology is simply not very expensive any longer. Add to this that all police officers I have interacted with have in-car computers allowing them to remotely access a person’s criminal and driving histories – this technology is certainly more complex than a video camera.
The strength or weakness of cases would no longer hinge on the accuracy of Washington State Patrol Trooper or County Sheriff testimony of an event that often occurs more than year before the case can proceed to trial. A lawful stop would be evident – no motions hearings with law enforcement officers, prosecutors, clerks, bailiffs and judges getting paid and/or overtime. A lawful arrest? See video. Expensive trials? See the video. And so on.
Is Officer Grumpy The Canary In The Coal Mine?
Aside from the practical disappointment of the video, there are more fundamental philosophical problems evidenced here. Without boring the reader or disappointing my college professors, I will talk about this failure in the context of social contract theory.
The social contract is one of the fundamental ideas our great democracy was founded, and has succeeded, upon. The origins of the social contract can be found in Plato’s Republic and are described by the character Glaucon. Basically, the idea is that the people of a society must group together and create a government in order to keep the desire and interests of the individual in check. This idea was forwarded in western political thought by Thomas Hobbes in Leviathan and later by John Locke and Jean-Jacques Rousseau in their respective writings. Suffice it to say the philosophies of Locke and Rousseau were monumental in the creation of western republics, namely in the French and American revolutions.
Boiled down, the social contract provides the government may wield power, necessarily the monopoly of force, against its citizens in order to sustain and enforce order amongst the people. The people submit to this power, and give up some freedoms and agree to behave in certain ways (or face punishment). In our society we permit the police to patrol our streets, stop our vehicles when we fail to follow the rules, and to arrest us when we step out of line. We also submit to government presence in our lives in the name of safety and order, e.g. the T.S.A. Our government is also allowed to incarcerate us, or remove us from society, if it is proven that we broke the rules. However, and as we all know, these powers come with very strict rules the government must follow.
The Bill of Rights, or the first ten amendments to the United States Constitution, is a very clear example of the rules the government must follow as part of their obligation in the social contract. As a criminal defense attorney, the fourth amendment of the US Constitution is of the utmost importance:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
As every officer knows, a warrant is required in order to search a person’s effects – in the case of the video a warrant is required to search the person’s car. Of course there are exceptions to the Warrant Requirement that have been created through the court system; however, it is clear that no exception applied here. Most recently, the United States Supreme Court reinforced the warrant requirement in a case where one was authorized but the police responsible for executing it failed to do so despite it being spelled out in black and white letters on the page.
In this video here, what we saw was a citizen who needed to exercise his rights because the officer did not respect his right to be secure from intrusion. Would this have happened without the officer knowing his dashboard camera was rolling? Would the officer have created his own exception and ordered the driver from the vehicle in order to search through the driver’s belongings? How many times does this scenario play out every day on our roads? Every month? Every year?
It is clear that your individual rights can be difficult to protect. If you need an advocate and a voice for your individual rights I am here to help. Standing up to a police officer who fails to abide by the social contract and to respect your rights can be a difficult task. It can often be met with force, rudeness, or worse, an arrest with very little and/or questionable proof. A DUI prosecution has serious punishment and consequences and in almost every case it comes down to the “word” of the officer. While many officer’s are honest and forthright, if even one officer bends the rules and an innocent person is sent to jail, lost their driver’s license and livelihood, a video would have prevent all that, then that is one instance to many. However, the crime DUI is “unpopular and thus, the need to expose the prosecutorial problems of this crime is a low priority.
We certainly do not want Big Brother to watch all of us all of the time, but perhaps Big Brother could at least mount a video/audio camera in all the police vehicles so that this scenario can be remedied each and every time it occurs.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success due to specific and focused DUI training. Confronting all witness and having the knowledge and skill to expose the limitations and biases of their proffered evidence is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration, and this is especially true when a DUI prosecution is based upon officer “observations” during unfair tests.
If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands. | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
Rules, Regulations, & Repercussions Of The Ignition Interlock License.
In 2009 the legislature made a significant change to the laws regarding the ability to legally drive for those arrested for DUI. New legislation implemented a new type of license for those under suspension due to a DUI arrest or conviction. This new license is called an ignition interlock license (IIL). Previously a person suspended as a result of a DUI conviction or Department Of Licensing (DoL) administrative suspension/revocation had the ability to drive with an ignition interlock device but the license criteria was very restrictive and was really only feasible for those who had never been arrested for DUI before. The previous license was called a Occupational/Restricted License (ORL). For a first time arrestee who provided a breath test the driver was eligible to obtain this license but only after the first 30 days of the suspension had run. Also, the previous licensing scheme restricted when and where the driver could travel. For those who refused a breath sample and were under suspension (legally called a revocation) the driver was still eligible for the special license but only after waited the first 90 days of the 1 year revocation period had run. For those driver’s who were previously arrested and suspended for a DUI within 7 years, they faced a a 2 year revocation and the person was required to wait a full year before they could obtain the license. These 30 or 1 year waiting periods impacted a person’s ability to work, participate in treatment etc.
As a result of this very restrictive licensing scheme, many suspended and revoked persons simply could not wait the mandatory periods and to be quite honest many drove illegally. While some were stopped and arrested for Driving While license Suspended, Second Degree, I would guess that most violators were not caught. Fortunately the legislature recognized the dangers of the very restrictive ORL program given the large number of potentially unlicensed drivers who were on the road.
Consequently, the current IIL legislation was created and remains in place today with a few slight modifications followed by a few more tweaks in January 2011 . Those not eligible for the IIL because their suspension is not alcohol related, there is still an ORL program, but it now addresses those driver’s who are suspended/revoked for reasons other than DUI.
The IIL now makes almost everyone eligible for the special license regardless of whether the suspension/revocation was via the Departmental Administrative action pre-conviction, or for a actual conviction. To be eligible for this license the persons drive record must show: an arrested for, or conviction of, an alcohol-related DUI, Physical Control, or Minor Operating After Consuming Alcohol, (those convicted of Drug DUI are NOT eligible until January 2011), and the driver license was valid on the date of conviction or before the date of any suspension/revocation. At the time of IIL Application, the application fee of $100.00 must be paid, proof of financial responsibility (SR22 Insurance is the most common method) must be present, and proof of an ignition interlock device installation for every vehicle you drive.
Assuming the applicant meets the above criteria and presents all the required information they will be issued an Ignition Interlock License. The license itself is a standard sheet of paper and while the DoL will maintain electronic evidence of the status in their system. A holder of the IIL must make sure they have the license with them when they drive just like a regular license. The successful applicant will receive the license in the specified manner requested on the application (Email; Fax, or US mail). The I.I.L looks just like the image attached.
A person is NOT eligible for an IIL if the person has been convicted of vehicular assault or vehicular homicide within seven years of the suspension date or , if the person is under a suspension/revocation for a conviction for Minor In Possession (MIP), Reckless Driving amended from a DUI, or Habitual Traffic Offender.
While an IIL is not the only solution, and certainly not a cure for the disease of alcohol abuse or dependence the program is a way to allow a person to maintain their occupation, attend treatment, and minimize specific recidivism. The IIL is also required for those who enter a Deferred Prosecution as a means of enforcing abstinence for the first year of the 5 year program. Currently, however, the Department requires the IID/IIL for 2 years despite the Courts only ordering the IID for 1 year if first time the person was ordered to have a IID, but January 1. 2011 legislation will harmonize this discrepancy.
IILs and IIDs are by no means a perfect solution but on a short term basis they seem to be the best way to satisfy demands and concerns of the public at large and since many IILs are required via the Department of Licensing before any criminal punishment is imposed they strike a balance between punishment prior to conviction and public safety. As mentioned previously, those who are convicted of DUI will be required to have an IIL regardless of that the DoL requires and the requirement post-conviction will be for at least 1 year. Ironically, however, the technological limitations of the device may be more dangerous than an actual impaired driver but technology should catch up sooner than later.
An application for a IIL can have some unintended consequences that a driver MUST be aware of before requesting the license and only a lawyer or attorney who limits their practice to a DUI defense has the specialized knowledge to make sure there are no unintended consequences.
Jonathan Rands is experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. For a more interactive discussion on IID’s on September 12, 2010 Jonathan spoke with Bellingham’s KGMI’s Tracy Ellis on the Legal Docket at http://www.kgmi.com/pages/7015350.php
If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands via his web-page at http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.
Has MADD Gone Completely Insane?
Next week, the U.S. House of Representatives is expected to vote on a bill that is described as technology that can help eliminate drunk driving by “turning cars into the cure” through the development of advanced alcohol detection technology. This technology is known as Ignition Interlock Devices (IID). MADD is calling this bill “life-saving.” MADD suggests that it is working to “turn cars into the cure” by supporting advanced alcohol detection technology which will one day allow cars to determine if the driver is drunk. If the driver’s BAC is at or above .08, the car won’t start. This also implies that if the driver’s BAC ever rises above .08, the power and electricity to the vehicle will be cut. MADD’s justification and support of this bill relies upon the Insurance Institute for Highway Safety estimate that this technology “could” save over 8,000 lives per year.
While I doubt anyone can argue with the desire of MADD to help curb drunk driving, their methods and rhetoric are unsound, dangerous, and lead to drumming up support for idea’s that will likely have disastrous consequences. How ignorant is MADD to believe that a device in a car is a “cure” for something that only extensive treatment, possible medical intervention, and social education can truly cure? Furthermore, this bill perpetuates the belief that a person is drunk at a .08 which is not supported by research. Considering the state of the automotive industry being in a state of financial recovery right now, does it make good sense in terms of resources for MADD to push for additional financial and technological burdens on automotive industry currently on life support No. The cure is neither a device, nor a “smart” car, the cure rests in education and good personal decisions made by each and every individual driver on the road.
Considering the fact that Toyota cannot get the basic concept of “brake-pedal-means-stop” and “gas-pedal-means-go,” in their most basic of models, and has recently just recalled their Lexus models to fix and refine other more advanced technology, how can we expect them and other automakers to get this technology right? Imagine the potential recalls and malfunctions with a mandate to install IIDs?
Better yet, imagine the additional risk imposed by MADD’s bill: While MADD estimates it will save 8000 lives, how many accidents will there be due to people trying to blow while driving? The device requires random breath samples while driving at any speed, it requires looking at the device, blowing in a specified manner, looking to check to see if it requires another sample and a look at whether the driver passed. Talk about impaired driving.
Recent legislation on cell phones and driving has indicated that distracted driving is dangerous, but this proposed device is even more hazardous. A responsible approach for MADD would be to research these possible consequences before launching a campaign for IIDs. MADD, in their quest, forgets that the practical use of this device will likely endanger and kill just as many people as DUI drivers by replacing them with drives that are equally “impaired” via use, or attempted use of this device. Impairment of one’s ability to multitask through any means, alcohol or addition demands on limited ability to divide attention increases the chances of crashing into others.
If MADD really wants to reduce death rates, eliminate car travel and save 50,000 lives per year, why stop at 8,000? Perhaps MADD should support legislation to install ‘speed regulators,’ limiting the maximum speed of all vehicle to 25 mph. Think of how many lives we could save by ‘eliminating’ speeding?
Drunk driving is a symptom of personal and social problems. Mandatory IIDs will not solve the root of problem, it will only band aid the symptom. It will create more problems and more litigation and increase the overall cost. Even if this bill were to pass, it will take some time to get it into each new vehicle by the manufacturer. . . unless everybody goes out and buys a new car immediately. Historical car purchase trends show that this will not happen. Assuming so, is the next legislative fix going to be a mandate that ALL cars be fitted with the interlock device, too? What if you can’t afford it? Why are those who don’t drink painted with the same technological brush? What about asthmatics who can’t make the device work? What about improper calibration and reliance on the technology:? How about the driver who drinks to above a .08 and the device reads it low and allows them to drive and a death occurs? Will MADD call for the person’s head, or will they willingly bear the costs associated with litigation that is sure to follow?
While the goal of reduced DUI and DUI accidents, is admirable, the ends should not justify the means otherwise, the results are sure to be catastrophic – 250,000,000 or so are to be saddled with the cost of maintaining, and or installing the devices; devices that currently and regularly screw up the car’s electronic functions, and render the car inoperable, devices that require EVRYONE to blow every day, several times a day to keep the car running? What about those driver’s that fail the test? Will there be a report to “Big Brother?” Will there be a law and punishment for failure? Will there be a law against tampering, or trying to defeat the device? How will such IID related crimes be enforced? The potential questions and problems is endless.
Those who are familiar with the device don’t know that the technology is not very good nor is it accurate and there are false positives all too often. Consider all the things we currently do before we get our cars, or during or time in our cars that will affect the device and ultimately cease: mouthwash, aftershave, eating in our cars, sweetened latte’s, fueling our cars and spilling so there are now fumes, all of these things are a very small list of all of the things known to create which create interference with the device and keep a person from moving. Things that you actually use in your car like windshield washer fluid that contains ethylene glycol (antifreeze) fumes are sucked onto the cars ventilations system connected to the device is an example of a false positive that interferes.
In Washington, those charged with a Minor DUI, or adult .08 DUI are already subject to an IID pursuant to a Department of Licensing suspension, and anyone convicted is required to have an IID for a minimum 1 years, 5 years for a second DUI conviction and 10 years for a third DUI conviction. Here in Washington the people who MADD targets are already subjected to mandatory IID on ANY vehicle they drive and these DUI penalties and requirements for Washington DUI is becoming even more restrictive in January 2011.
As previously stated, no one can argue that DUI is a good thing, and MADD has done an exceptional job of making drivers aware at a national level, but this current proposal is emotionally driven legislation and is insane. The proposed legislation will only create more problems than it seeks to prevent.
Until drivers take personal responsibility for the safety of themselves and other drivers we cannot legislate away DUI. Currently, in Washington, consumption of alcohol and then driving a vehicle is NOT a crime per se. Rather, the State DUI law recognizes the personal decision making ability of its citizens and sets a clear limit. Regardless of what your opinion of the limit is, everyone has a choice. The problem, however, is that the technology used to measure the blood alcohol content is woefully inadequate and over estimates subjects breath alcohol concentration, and alcohol consumption impacts a person’s judgment and the decision to drive or not drive is impacted. Like any privilege bestowed upon us, consumption of alcohol needs to be done in a responsible manner with full knowledge of risks and consequences.
DUI is not an allegation to be dealt with lightly and this is exactly why an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success is mandatory. If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136. Jonathan Rands is Focused On Your DUI Defense.
