Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing blood of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower, but a long way from being under .08%. As we requested, they also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything was in order. Steve still insisted he was not driving under the influence of alcohol.

The only other possibility was a faulty "chain of custody". In other words, LAPD lab got the vial mixed up and tested someone else’s blood. Kind of like the work they did in the O.J. Simpson case. So we had the sample blood-typed to see if it was that of another arrestee. Result: type "O"– the same as Steve’s. But, then, that’s the most common type of blood.

We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, along with a portion of the remaining sample from the LAPD lab, shipped to a laboratory that specialized in DNA testing. A month or so later the report came in.

The blood tested by LAPD was conclusively not Steve’s.

The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges. Predictably, according to the L.A, Times, LAPD tried to point the finger at someone else: "Police officials said they are investigating how the mix-up occurred and who is responsible, But, they said, they are fairly confidant that the lab did not make a mistake." One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD’s jail intake facility in Van Nuys.

So how could this have happened? The truth is that it probably happens far more commonly that we suppose.

When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then sealed. Procedures then require that a chain of custody be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else’s vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage.

At any stage of this chain of custody, of course, things can go wrong with the vial or the records. It may be a week or so before the vial is finally analyzed. This is usually done using gas chromatograph instruments, and the vial is one of many analyzed in large "batches". A batch is a group of blood vials, perhaps 40 or more of them, which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial afer another.

Of course, it is critically important that the sequence of tests by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won’t be just one person whose blood is falsely reported: every vial may also be off — and will all be wrong. And you have 40 people people facing criminal charges based upon false evidence.

"How do I know the blood they tested was mine?" Simple — if you can hire a top DUI attorney, get a portion of the sample from the crime lab, and then have an extra $1500 laying around for DNA testing. Otherwise, I guess you’ll never know….
 

More Lawsuits Against Chicago DUI Cop Richard Fiorito 

Chicago, IL.  Nov. 13  –Chicago oolice officer Richard Fiorito is now facing 37 lawsuits alleging he intentionally targeted gay and lesbian drivers to issue false DUI arrests.

The lawsuits claim Fiorito was looking to capitalize on overtime pay issued to police officers when they appear in court to testify in a DUI case. Fiorito made 313 DUI arrests between January of 2007 and June of 2008; the officer was even honored by MADD for his efforts. Most of these arrests were against gay and lesbian suspects. He supposedly targeted these individuals when they left gay and lesbian bars or frequented gay and lesbian areas.

New dash cam evidence is pointing to the fact these arrest reports may have been exaggerated if not totally falsified…

Fiorito has been placed on desk duty since the charges were first issued in early October.  16 more plaintiffs recently joined the case with the original 21, leading the total to 37 lawsuits against the officer. All testimony from Fiorito in any of these pending DUI cases will be on hold until internal investigations from the Cook County State Attorney’s Office and Independent Police Review Authority are complete.

Fiorito is not the only Chicago officer accused of these types of arrests in the previous few years. Officer John Haleas was suspected to be guilty of perjury last year, having about 50 cases dismissed, but was exonerated of criminal charges.  [See my post No Surprise: Dirty DUI Cops Goes Free]

Framing gays for drunk driving is reprehensible. Hopefully, however, the public will also see the underlying message: it’s very easy for a cop to frame anyone for this cirme — for any reason.
 

Ohio Trooper of Year Charged With Drunk Driving

Lima, OH.  Nov. 10 -  A state trooper in northwest Ohio who was honored by Mothers Against Drunk Driving in 1997 for the number of drunken-driving arrests he made has been charged with drunken driving…

Gibson was off duty Sunday when Waynesfield police say he drifted over the center lane and then refused to take a Breathalyzer test. Waynesfield is 12 miles northwest of Lima.

Mothers Against Drunk Driving honored Gibson in 1997 for making the most drunken-driving arrests by a Lima trooper. He was named trooper of the year in 2002 in Lima.
 

Yesterday, that dirty cop got the kind of justice typical in the DUI field: He went free but the hundreds of innocent people he framed stand convicted.

Judge Drops Case Against Cop Honored for Hundreds of DUI Arrests

Police, prosecutors mishandled evidence, jurist says

Chicago, IL.  Nov. 5 –  The criminal case against Chicago’s most prolific officer on DUI arrests fell apart in court Wednesday when a Cook County judge ruled that police and prosecutors mishandled evidence…

Haleas made 718 arrests in 2005 and 2006 and was the primary witness in hundreds of DUI cases, garnering a "Top Cop" honor from the Alliance Against Intoxicated Motorists for having the most DUI arrests in the state…

Judge James Obbish dismissed the indictment against Officer John Haleas, siding with the defense that forbidden evidence from the Chicago Police Department’s internal probe had made its way into the criminal case.

Despite a former prosecutor’s testimony that he carefully excluded any information from a statement given by Haleas to department investigators, Obbish said he believed the statement had been improperly considered in the decision to press charges against the officer. Obbish said he based his decision on an internal affairs sergeant’s testimony that he briefed the prosecutor on the forbidden evidence.

A U.S. Supreme Court case prohibits statements by officers in administrative disciplinary proceedings from being used against them in criminal cases.

It was unclear why the internal affairs investigator would not have steered clear of bringing up the statement in his dealings with prosecutors.
 

Unclear?  I don’t think so….

 

What happened?, you ask. Can they do that? I thought I was presumed to be innocent, and the state has to prove my guilt beyond a reasonable doubt before they can punish me. And I remember something about "due process": Can they suspend my license for DUI before giving me a chance to defend myself?

Good questions.

The Department of Motor Vehicles (or whatever they call it in your state) is required by law to immediately suspend the driver’s license of anyone arrested for (not convicted of) DUI who (1) has a .08% breath reading, or (2) takes a blood or urine test (which will be analyzed later), or (3) refuses to take any test. This means immediately:  the license is grabbed and the DUI suspension is legally effective the moment the officer signs the notice and hands it to you.

Viewed another way, the officer in a DUI case is constable, prosecutor, judge, jury and executioner. You have absolutely no rights. In fact, if you took a blood or urine test, they don’t even wait for the results (which will come back from the lab days later): they not only presume you are guilty, they also presume that the evidence will eventually show it!

So, again: How can they do that in America?

Let’s go back a few years….At first MADD and various state legislatures decided to find a way to get drunk drivers off the highways RIGHT NOW — and not be diverted by any technicalities like, well, the Constitution. So they enacted so-called "APS" laws (the phrase stands for "administrative per se", referring to the "per se" crime of .08%, as opposed to the crime of driving under the influence of alcohol). They justified this by saying that a license was a "privilege", not a "right" — and since the license holder had no rights, the state could do what it wanted.

Well, the U.S. Supreme Court blew that justification out of the water. In Bell v Burson (402 U.S. 535) the Court acknowledged that the right to drive is a privilege. However, once the state gives someone a license, that person then has a property right in it — and that right cannot be taken away without giving him due process. And due process means a fair procedure by which he can contest the confiscation of his property.

The reaction to this has generally been to continue to suspend licenses on the spot, but to then give the driver a short-term temporary operating permit during which he can request an administrative hearing. (In a few states, the process is handed over to the courts.)

MADD has been successful in getting the Feds involved; a highway appropriations bill was passed which pretty much coerced states into adopting APS suspensions — or else no highway funds.  Do these APS hearings in DUI cases provide due process? In other words, how fair are they?

Let’s take California’s APS hearings. They are conducted by a "hearing officer". Is this an impartial judge? Well, he’s hardly impartial: He’s an employee of the DMV — the very agency that is trying to suspend the license (kind of like a judge being paid by the prosecutor). And he isn’t a judge. Actually, he isn’t even a lawyer; he’s only required to be a high school graduate.

So who is the prosecutor? He’s, well, the same guy.

That’s right: this DMV employee with no legal education is both judge and prosecutor. Put another way, this government beaurocrat, without ever having read the Evidence Code, can object to the driver’s evidence — and then sustain his own objection! Not too surprisingly, the DMV wins about 95% of these DUI hearings.

That’s called "due process" in a drunk driving case.
 

Man pleads guilty to DWI in motorized La-Z-Boy

Duluth, MN.  Oct. 22 – A Minnesota man has pleaded guilty to driving his motorized La-Z-Boy chair while drunk. A criminal complaint says 62-year-old Dennis LeRoy Anderson told police he left a bar in the northern Minnesota town of Proctor on his chair after drinking eight or nine beers.

Prosecutors say Anderson’s blood alcohol content was 0.29, more than three times the legal limit, when he crashed into a parked vehicle in August 2008. He was not seriously injured.

Police said the chair was powered by a converted lawnmower and had a stereo and cup holders.

Your tax payer dollars at work.

 
(Thanks to David O’Shea.)

Wrong.  The benefit is for the drunk driver — if he’s a cop.

Cops Plan Benefit for Officer Charged in Fatal DUI

Chicago, IL.  Oct. 21 – Chicago police officers are planning a benefit this weekend at their union headquarters for Joseph Frugoli, who is accused of crashing into a car while driving drunk on the Dan Ryan in April, killing two people.

An invitation to the event is posted on the Web site of the Fraternal Order of Police, and appears next to the numbers "10-1," radio code for officer in need of assistance.

"You’re invited to assist Detective Joe Frugoli," the posting reads. Tickets cost $50. A detective lists his name and phone number for further information.

Police said Frugoli’s blood-alcohol content was more than three times the legal limit when his Lexus SUV struck a car that had pulled over on the Dan Ryan Expressway north of 18th Street. The car exploded into flames and killed Andrew Cazares, 23, and Fausto Manzera, 21.

Frugoli is also accused of leaving the scene.

Kind of makes you teary-eyed, doesn’t it?
 

Consider the following article from the Atlanta Journal-Constitution:

An Atlanta police officer reprimanded for not making an arrest for a week in one of the city’s most crime-ridden areas is accusing the Police Department of using a quota system to beef up arrest numbers, a charge department officials deny.

Officer Andrew Cerul filed a grievance with the local chapter of the International Brotherhood of Police Officers in late March after he was transferred from day watch to evening watch. Cerul contends the transfer was made because he did not make an arrest during the week of March 13-19

Cerul, who did make traffic stops, was one of six Zone 3 officers written up for not making an arrest that week. Three of the officers were later excused because they were either in training all week or working the desk. Cerul and the others officially received “verbal counseling.”…

(Police documents) indicate a quota system exists in the Atlanta Police Department, according to Jon Calloway, Cerul’s union representative

“They [police officials] didn’t deny that the quota system existed,” Calloway said. “They said it was reasonable to expect an officer to make an arrest. I would hate to be the person on the last day who gets stopped by an officer needing an arrest.

Calloway said residents have long suspected police of using quotas. “But this is the first time we have ever had a smoking gun. A document that we can touch and feel and say that it is going on,” he said. Police officials say there is no quota system….

So is the Atlanta Police Department that different from other police agencies across the country?  The article continues:

Other big-city police departments have come under fire for allegedly imposing quotas.

In Baltimore last month, 27 officers with lower arrest rates were transferred to different departments within the Baltimore Police Department for failing to meet “minimum performance standards.” The action outraged City Council members and prompted Maryland legislators to consider a bill that would prevent a police officer from being punished, transferred or demoted for failing to meet a quota

In January, police officers in West Hartford, Conn., railed against a new department policy requiring the traffic division to step up enforcement.

Officers in Falls Church, Va., were required to write an average of three tickets, or make three arrests, during every 12-hour shift. By the end of the year, officers faced three months of probation if they failed to have a combined total of 400 tickets or arrests….

Why do police departments have drunk driving quotas?  See my past posts, DUI: Government’s Cash Cow, How to Make a Million in the DUI Business and   DUI Roadblocks for Fun and Profit.

(Thanks to William C. Head, Esq., of Atlanta.)

As I have indicated in previous posts, however, HGN as a test for intoxication is fundamentally flawed and rarely understood or properly administered by police officers.  See "Nystagmus: The Eye Test", "Nystagmus: The Eye Test (Part 2)", and "Nystagmus: The Eye Test (Part 3)".

A scientific study (144(3) Science and Justice 133-139) has investigated the scientific validity of the nystagmus test:

The Horizontal Gaze Nystagmus (HGN) test was conceived, developed and promulgated as a simple procedure for the determination of the blood alcohol concentration of drivers suspected of driving while intoxicated (DWI). Bypassing the usual scientific review process and touted through the good offices of the federal agency responsible for traffic safety, it was rushed into use as a law enforcement procedure, and was soon adopted and protected from scientific criticism by courts throughout the United States. In fact, research findings, training manuals and other relevant documents were often held as secrets by the state. Still, the protective certification of its practitioners and the immunity afforded by judicial notice failed to silence all the critics of this deeply flawed procedure….

In 1998 the integrity of the statistical evaluation of the original research upon which the validity of the tests rested was unfavorably reviewed [5]. In 2001 new research indicated that the Horizontal Gaze Nystagmus (HGN), the cornerstone of the test battery was fundamentally flawed and that the HGN test was improperly conducted by more than 95% of the police officers who used it to examine drivers suspected of driving while intoxicated (DWI) [6]. This summary critique demonstrates that it is scientifically meretricious and that the United States Department of Transportation indulged in deliberate fraud in order to mislead the law enforcement and legal communities into believing the test was scientifically meritorious and overvaluing its worth in the context of criminal evidence….

 Deliberate fraud.  Pretty strong language for a scientific journal.  After reviewing the flawed and deceptive justifications for using nystagmus in DUI investigations, the researchers concluded that the test was essentially without scientific validity.

The state’s argument for the field sobriety tests does not rest on proof of merit, but upon qui tacet consentit reasoning that those tests have been so widely accepted they must have been subjected to some kind of review prior to adoption in the many jurisdictions where they are used, that somewhere along the way someone would have spotted the flaws and shortcomings. Considering that the student manual was originally considered to be a confidential state document and was only obtained through an Open Records Act request, silence from the scientific community cannot be considered an endorsement of the program.
 

The latest example, complete with online video of the cop:

Lawsuit Accuses Cop of Fake DUI Arrests

Chicago, IL.  Oct. 4 — ABC7 Chicago has learned that a veteran Chicago police officer is under investigation for allegedly making dozens of false DUI arrests, and criminal charges may be coming soon.

Surveillance video has been obtained from one of those arrests showing Officer Richard Fiorito in action on the night shift.

Because of all the complaints against him, Chicago police ordered Fiorito to use a surveillance system in his squad car back in March. The video obtained by ABC7 Chicago is from his squad car and will be used as evidence in a federal civil case against him.

To date, 21 people are part of the lawsuit. All say they were victims of a DUI scheme…

What Officer Fiorito wrote in his own police report was that the driver was so intoxicated, he was unable to perform any of the standard field sobriety tests.

In the video, the driver is told to walk a straight line and next, to touch his finger to his nose with eyes closed. Finally, he’s told to stand on one leg for 30 seconds, eyes closed.

"I’ve been doing DUIs since 1992, and I’ve never seen a subject do the one-leg stand this well," said Jon Erickson, the attorney for plaintiffs…

The civil case charges that Officer Fiorito engages in a pattern of false arrests, then perjures himself in court testimony in order to rack up more than 300 DUI arrests per year.

Mothers Against Drunk Driving(MADD) awarded Fiorito for being the state’s highest writer of DUI tickets.

ABC7 Chicago found Officer Fiorito after he had just testified in another DUI case at the criminal courthouse. That’s a place he spends a lot of time, according to the lawsuit, being paid time-and-a-half.

"The more DUI arrests that he makes, the more times that he has to go to court, more times he goes to court, the more money he makes," said Erickson.

ABC7 Chicago has learned that Fiorito is also being investigated by the Cook County state’s attorney’s office.

Two other Chicago cops have been accused of similar DUI schemes in recent years. One was stripped of his police powers during his investigation. The other decided to retire and collect his pension rather than face impending charges.

Despite dozens of complaints against him, Officer Fiorito is still out on the streets making DUI arrests. A Chicago Police Department spokesperson wouldn’t say much about Fiorito, telling ABC7 Chicago only that he was under investigation by the internal affairs division.

Sources tell ABC7 that criminal charges against Fiorito are expected to be handed down soon from the state’s attorney’s office.
 

For every one of these MADD "Super Cops" who get caught, how many across the country are "still out on the streets making DUI arrests"?