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.
3 Judge Panel Requires Breath Test Evidence To Comply With Scientific Standards.
Yesterday, September 22, 2010, a King County District Court 3 Judge panel found that breath tests, previously held to be inadmissible for any purposes, opened the door to permitting the test once again. However, before they can be admitted the Judges required that uncertainty must be provided in discovery and to the jury or, upon motion, the breath test results will be suppressed. In the Court’s Decision the Judge’s wrote:
For the reasons stated below, we hold that historic standards of justice – contained in the federal constitution, case authority and court rules – require that the State present breath test readings, both in pretrial discovery and at trial, showing their true value, rather than wrapped in such a way that a false picture is presented, either to the defendant or to the trier of fact.
Without this evidence a breath test is NOT admissible for the reasons stated in the 31 page decision for a very simple reason: “absent a confidence interval, a “final” breath-alcohol measurement is only a “best estimate” of a person’s breath-alcohol level.”
The press, the opposing prosecutor, and other commentators have pointed out that the ruling is not founded upon tradition rules regarding the breath test evidence and they are absolutely right.
This decision was predicated upon something much more significant and important: “standards of justice.” This is not a novel concept and to those of us involved in the litigation for the past 5 years neither is this ruling. In fact this ruling is very similar to other jurisdictions where this issue has been challenged and argued.
Most recently Island County District Court, and Skagit County District Court have both arrived as similar conclusions and in simple terms require the State to produce the “uncertainty” calculations because failure to do so shrouds the breath test result in the aura of science and juries can easily be misled.
Those who have opposed the notion of providing the uncertainty calculations do so because they say it doesn’t matter except in those cases where the breath test result is in the .08 range. However, despite this concession, opponents of uncertainty were still unwilling to provide the information because in so doing, the limitations, the internal bias, and the sample bias are all exposed for what they are: a guess.
The Constitutions of this State, and of this Country, both entrench one of the most important rights we have that makes us a free society: Proof beyond a reasonable doubt. Failure to provide information that shows the machine’s fallibility, bias against subjects, and blood alcohol estimate that is scientifically unsound and only samples breath that is the size of a golf ball violates the principal.
Interestingly enough, it is the advanced nature of the State Toxicology Laboratory that has led to this ruling: Since the lab has the technology and personnel with the necessary education to compute the uncertainty calculation the scientific community demands the production of this information so that the scientific evidence can be scrutinized. The rule of law requires adherence to scientific principals established by the community when the Prosecution seeks to use the evidence to take a person’s liberty. In fact, the 3 Judges recognized this principal and quite frankly set the record straight on page 2 of their ruling where they wrote:
[b]ecause the subject matter of this opinion is so heavily steeped in scientific principals and procedures which are largely unknown to the Judiciary and the Bar, the Court is including in the Findings explanations and definitions of many of the principals involved.
With this ruling now in the books it is expected that many jurisdictions around the state will follow this rule for purposes of determining whether a breath test in a DUI prosecution in any given county in Washington will in fact be presented to a jury.
Currently, in Whatcom County, this motion has been presented to the District Court in a DUI prosecution and both myself and the State Prosecutor as well as all criminal defense attorneys, more specifically DUI defense lawyers in the county await a ruling that is rumored to be close to being complete. Also, in DUI cases prosecuted by the City of Bellingham, it has been agreed that the transcripts from this King County hearing will be relied upon for purposes of answering the same question of breath test admissibility. As a result of this now public King County decision there is a possibility that the Bellingham City Prosecutors and DUI lawyers for all DUI breath test prosecutions will also agree to abide by this well reasoned ruling.
This ruling, and the rulings in Skagit, Island, and hopefully Whatcom Countys, is the product of years of litigation in various courts around the State. Regardless of what your personal feelings are towards the crime of DUI, as a person who resides in this State and Country, these decisions are something to be proud of, these decisions are hallmarks of our system of justice that require the best possible evidence in seeking a conviction. All too often the rhetoric, the skewed statistics, and even the pain as a result of a crime having been committed gets in the way of system of rules that are required to be followed. While I believe no one in their right mind advocates for drinking and driving per se and the best evidence I can ever give to avoid a DUI is not some gimmick, but rather it is simple: “Don’t drink and drive.” But this does not change the fact that mixing the two is NOT necessarily a crime and is in fact legal in this State.
However, if you disagree with the law; Vote to change it; Move to a state or a Country where you agree with the law; but as long as this State permits drinking and then driving unless or until a person reaches, or exceeds the .08 limit, or is affected by their alcohol consumption, the State MUST and IS now is being held to the most important law that our system historically recognizes: “standards of justice.” It is these standards together with scientific rules, regulations, and other principals of law combined with the intellectual honesty of Judges like these 3 in King County, the 2 in Skagit, and the 1 in Island County that makes this the best system of justice available. Bravo Judges.
Jonathan Rands is an experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. He has been apart of every major breath test challenge in the various courts where he practices in the last 8 years. 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’s Tracy Ellis every other Sunday on the Legal Docket at http://www.kgmi.com/pages/7015350.php
Island County Judge Requires Prosecution To Disclose DUI Breath Test “Bias & Uncertianty” Disclosed To Jury.
Recently, Island County Judge, P. Strow found in favor of all DUI defendant’s when he ordered the production of breath testing bias. The order for production came in lieu of a order to suppress the tests which is what the defense originally requested when the prosecution had not provided information and calculations regarding the limitations of breath testing. Furthermore, it was ordered that such information be disclosed also to the jury during a DUI breath test trial. The ruling came in the case State v. Arnold and while it is a very straight forward concept, it is information that the State Toxicology Lab has been willing to do in only cases where the breath test was within a certain range. The information sought by the defense was, and is not, a technicality but rather a very real calculation regardless of what the breath test reading is.
In this state, the legal limit is .08, and there is an enhancement for punishment purposes when a driver provides a test at or above a .15. The concept of uncertainty and the ruling from the court will require a jury to hear that a driver’s breath test may in fact be under a .08 or under a .15 when the test is close to those numbers. Since the difference between .08 and .07 is the difference between a criminal conviction and a finding of Not Guilty. Likewise, the difference between a .14 and .15 is equally important because a first offense DUI conviction with a breath test of .14 requires a person to spend 1 day in jail and suffer a 90 day license suspension, while a conviction for a .15 breath sample is 2 days of jail and a 1 year license revocation. In the case of a driver who has a prior DUI conviction, the difference in mandatory sentencing is 15 days of jail, 30 days of Electronic Home Monitoring and a 2 years driver’s license revocation. Whenever there is a test that is close to these legal limits and sentencing enhancements, the accuracy of the test and the testing instrument and program should be of paramount concern.
Currently, the Washington breath testing program lags behind most states in the nation with its technology and uses one of the oldest and most obsolete machine to determine a driver’s guilt or innocence and likewise before a case ever sees a jury trial, that same obsolete and problematic machine is used by the Department Of Licensing to suspend a persons driving privilege for at least 90 days.
As I have mentioned numerous times few if any people (including DUI lawyers) believe that DUI is a good thing, rather, what I advocate for is good proof, the highest standards in place for analyzing breath, and only the most current and reliable methods of the breath testing program to be in place. There are such standards in place for DNA testing to solve the most reprehensible of crimes so why is DUI any different? It should not be “easier” to convict a person of DUI simply because it is considered a lesser crime. In fact, i think the opposite is true as evidenced by the outcry of citizens upset with the issue of DUI in this state and Country. In fact many citizens are seeking harsher penalties and it is because of this likelihood that the evidence used to convict a person MUST scientifically reliable above reproach. It is only then that we can be satisfied that the person was in fact guilty of the crime charged.
Law is no different than the rest of the world and as we gain a more reliable method, techniques, and technology to accurately determine a breath or blood sample we must embrace it. Currently, the State Patrol has new cutting edge breath testing machines in storage, but has not yet implemented them for budgetary reasons. As a result, Constitutional right to a fair trial, proof beyond a reasonable doubt, and ultimately the guilt or innocence of some driver’s close to the limit, or close to a sentence enhancement falls prey to a budget rather than the best possible evidence.
Since there is a an ability to use and implement new methods and technology of breath testing to be certain beyond a reasonable doubt, there is also an increase in excluding those that are innocent of the crime. Currently, if a person provides a breath sample of .081 on any given breath test machine in this state, it is more likely that they are under the legal limit. However, if a jury is not told this, if the bias and the “uncertainty” of the breath sample and procedure behind the test is not disclosed a jury will likely make a wrong decision as a result of being uninformed, and a conviction that cannot be undone by later more advanced testing cannot fix the problem. It is only through intellectually honest rulings such as this one, where the legal system progress and advance to more reliable and accurate testing measures. Currently King County awaits a ruling on this issue as does Whatcom County where Judges have heard the motion and testimony and are writing their rulings, while in Island and Skagit this issue is resolved. These ruling come on the heels of poor science and testing procedures exposed 2 years ago while the State Toxicology Lab struggles to recover from a scathing ruling that suppressed breath tests in King County. This ruling remains intact as of today’s date.
In the end what is sought is only the use of the best science be used to ensure what our state and federal constitutions demand: Proof Beyond A Reasonable Doubt. This cannot be achieved unless its counter part is enforced: It is better to allow 9 guilty persons go free than to wrongfully convict 1. This is what the law is build upon. This is what unpopular crimes like DUI require despite emotionally driven rational and rhetoric.
DUI is not a simple charge. Defense of the charge is not to be taken lightly nor is it for the inexperienced, or even an average lawyer. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands 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.
