Saturday, May 10, 2014

Reality Testing

As I've said before, DUI jurisprudence is a post-apocalyptic wasteland where nothing good can live.  This is in part because of the reality of DUIs.  Once an officer stops a car, the law in Idaho says he needs reasonable suspicions you're under the influence to force a blood draw.

But this isn't about that.  This is about probable cause to think a person is driving at .08.  The Court of Appeals finally ripped away the final vestiges of weird that are Field Sobriety Tests and held that frankly, we don't need them:

Hunter had driven several blocks without headlights. The officer who stopped Hunter could smell the odor of alcohol coming from the open driver-side window and Hunter told the officer he had been drinking. This officer also observed nystagmus in Hunter’s eyes. The female passenger appeared to be heavily intoxicated. Once Hunter exited the vehicle, Officer Gibson could smell the odor of alcohol coming from Hunter. The officer observed that Hunter’s eyes were glassy and bloodshot. Hunter told the officer that he was coming from a bar and that he had consumed three vodka tonics that night. Hunter failed the HGN test, scoring the maximum points allowed. Officer Gibson later confirmed the HGN results by administering the test for a second time. Hunter also swayed during the one-leg-stand test. Finally, Officer Gibson had specialized training in DUI cases and had conducted several hundred DUI investigations. Though Hunter did not fail each of the field sobriety tests, the remaining information was sufficient to supply probable cause. This is especially true because I.C. § 18-8004(1)(a) establishes a per se alcohol concentration violation. An individual who has become more tolerant to alcohol may not exhibit the same observable functional impairment at the per se legal limit as others. Thus, under the totality of circumstances, an officer is not required to ignore other indicia of intoxication when an individual partially performs well on field sobriety tests. 
Because Officer Gibson had probable cause to arrest, the breath alcohol evidence recovered after the arrest should not have been suppressed.

What do you say to that?  Other than, well, ok.  FSTs are dead.  You don't need them to breath test, and even if you take them all and pass them all, you still lose.  Why?  Because .08.  It's an arbitrary number picked for no fucking reason by assholes, but that's the law.  It's rational enough for the courts, because DUIs are bad.  Picking this bullshit number is, if not to prevent dangerous driving by punishing those who drive dangerously, good for scaring everyone into not driving with much alcohol in them, which after all, if you reach a certain level, could be bad.  Why not just say no to driving with alcohol in you at all?  Hell, they could if they want, says the Court.  

If you want to fight these cases, learn about the evidentiary testing.  That is going to be all that is left soon.  And those fights are going to be expensive if we can force the courts to acknowledge that it's not good enough to just leave us with cross examination.  Our clients need their own damn experts.  Someone with an iota of independence has to be present, it can't just be the cops and their machine and the assholes that make billions off shoddy science and human suffering.

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