Archive for the ‘Police State 2.0’ Category

The New Jim Crow

Wednesday, June 1st, 2011

Jim Crow was a term, or is a term used to refer to segregationist rules and laws, instituted in the South after the Civil War, intended to keep things as they were and institutionalize rampant racism. Now, with racism unfathomable as well as unfashionable, Jim Crow has become, to borrow the phrase, a term that could ostensibly apply to DUI enforcement, with drinkers being the Jim and the enforcement of DUI’s being the Crow. Everyone, almost, agreed that DRUNK driving is dangerous, but there are books to be written on how bizarre this country’s policy on DUI enforcement has become after MADD’s influence.

No one can call MADD, or Mothers Against Drunk Driving, anything but well intentioned, and help but feel heartfelt sorrow about their losses, but the fact is that there is no other law enforcement procedure that has as far reaching an influence on regular run of the mill citizens, than DUI enforcement. This might be fine if we decided together that affecting the some 17,000 lives taken as a result of drunk driving, is a goal that deserves the billions invested in enforcement and lost by defendants who were trying to obey a confused message advertised by state and national governments that have no clue as to what makes a real DUI, or rather a dangerous DUI.

Simply put, dangerous DUI’s are any DUI where the driver is actually impaired. Notice the word IMPAIRED: it doesn’t mean unable to complete the roadside field “tests” but rather impaired like you or I would view the word; you see the person, speak with them, and you can tell they are shot, toasted, drunk, unsafe – whatever. The difference is that while states advertise “DONT DRIVE DRUNK” they are sending a totally mixed message. The real danger isn’t the driver that has two drinks at dinner, and blows a .095; the danger is rather the driver who insists on driving because they are fine. But because DUI enforcement has taken a bird shot approach, with police stopping “suspicious” cars during late night, they are getting a majority, read MAJORITY of people who are over .080 and DUI under the law, but were trying to obey the law. That’s due to a variety of reasons discussed elsewhere in this blog; but importantly, these people set out with the number .080 in their minds as a number that means drunk. Due to the mass marketing of the phrase “drunk driving” and the number .080 indicating per se, or automatic DUI; people have come to associate .080 with drunkenness and because they don’t feel drunk and are NOT impaired, they assume that they are not over .080!

What the state and national governments should o is advertise heavily that .080 can be reached with even one (1) drink! That would go a long way to halting this steady progression of defendant’s who intended to obey the law but were confused by the state’s message. Instead we have, as proof mind you, 70% of the drunk driving DUI defendants NEVER repeating their behavior, which either speaks to the ingenuousness of the drivers to begin with, or the fear of punishment after having experienced the legal system, or some combination of both.

I would argue that this is an example of the former, of people being confused, rather than people trying to beat the system; if people knew that .080 was one drink away, my argument is that the large majority of them would not drink, or would test themselves. My argument is consistent with the general public being aware that driving drunk is illegal, but moreover a product of the confusion caused by the mixed messages of driving drunk alongside the .080 legal limit, with people being caused to believe that .080 is drunk, when nothing could be further from the truth.


Do We Really Care About The Hearts And Minds Of Citizens?

Wednesday, June 1st, 2011

Yes, and I agree there are certain substances that are just too dangerous to be available, esp to kids. However, at the same time, I generally believe that if kids are old enough to die for their country, and other countries have seen fit to decriminalize or legalize mind altering substances, that people should be allowed to choose for themselves, absent some underlying evil.

Take a first time low level drug offender. Gets caught at a roadblock for an accident, police come up and arrest him for smelling like marijuana. Anywhere else besides Utah, he pays a fine, and he is done; in fact, more likely, he is given a Plea in Abeyance, so that he can get rid of the offense if he doesn’t have any others in the next year. In Utah, however, this kid is going to get supervised probation during which he will spend over $2,000.00 for weekly or monthly or random drug testing. He then, like a surprising number of people may tests “dilute” which means he had too much water (perhaps after working out), “messy” which means that although not “dirty” his urine had perhaps a muscle supplement in it that flagged the urine, or “missed” a test, which means that either he blew showing up for a random UA when his color or name came up randomly, or that the message that announces the color each day was busy or even not properly changed from the previous day in time; either way, he now has a “bad” UA.
Now the court calls him in, does not require the testing agency to address the issue of false positives (about 3%), does not inquire as to the facts surrounding the dirty sample, does not require the agency to further test the UA by a process called gas chromatography (GC) which is routinely done elsewhere because the base UA can pick up all sorts of things as “drugs” that are not, (such as Sudafed as Meth, poppy seeds as heroin, hand cleanser as alcohol or ETOH, and prescription Ritalin as Meth). The court does not ask the person what happened, rather they ask the kid to “deny” or “admit,” largely because they have, really have “heard it all before” and since the kid was told the rules at the beginning, and since he had all the opportunity to ask any questions he wanted; the kid is wholly responsible for the bad UA.

I once watched as a terrified 17 year old girl, who had tested positive for “meth,” sobbed onto her mother’s shoulder as the judge excoriated her for the test, which as it turned out, was a false positive caused by the presence of an asthma medication she was legally prescribed. Had the lawyer not thought of further testing the sample, and having her blood taken immediately afterwards for testing, this girl would have undoubtedly gone to jail.

You are in a system where the truth is already known, the facts don’t matter most of the time, because the truth is already known, and speaking out of turn can land you in jail. Don’t get me wrong, these are ALL well intentioned, well-meaning people, but the ease with which certain people are believed, and defendant’s are not, has always amazed me. The amount of money the state, this state Utah, spends on randomly enforcing laws regarding personal consumption of illegal drugs that are decriminalized elsewhere is astounding. Again, let me stress the following point – I don’t have any quarrel with people who believe certain drugs are harmful, especially to our youth, and who want to stop illegal drug use. But our system of punishment simply does not work and is inherently and unnecessarily expensive. The argument that it is the only thing we have is a cop out in my opinion. If we want to stop drug use, education has been shown to be the most effective method of preventing youth drug experimentation; followed by universally available treatment. Spending millions on people who do not want to be helped, in drug courts and in sting operations, while millions of people who want help can not find it, because it is expensive and rarely available is a contradiction of the highest order.

Take the amount of money and resources we spend on marijuana, or even legal prescription drugs for example – billions when you add in prison. I was in court yesterday and watched three people go to PRISON, not jail, for using Tramadol while in a drug court program. Now I have no problem per se, with people being punished for agreeing to a program and then screwing it up; but to send someone to prison because they had a legal RX for a non-narcotic drug, because they didn’t report it on their weekly form, seems to me to be an expensive solution to a non-problem. Why do we care if someone uses drugs? If they don’t steal, since when is the system so invested in an individual that it spends hundreds of thousands of dollars in a certain person because they have been caught with an illegal substance (say MJ, or heroin), signed up for a program, and then screwed up getting straight? IN other words, if a person who wants to get clean, can not find a program that will taken them to help them; why is a person who doesn’t (apparently) want help, forced by virtue of the less “worse” or painful choice, into a program, that when failed, leads to the state spending more than the hypothetical treatment amount (100k) to punish the person with prison? It makes no financial, or even moral, sense.

Why take a kid, who otherwise is headed for success, a college graduation, a job, a family, and derail this person by giving him a criminal record that will ostensibly prevent him from ever applying for a financial brokers position, a driving job, a health care position, a legal career, or one of any other of a thousand employment opportunities that would have been available had he not been caught?

I use the term “not been caught” for a very specific reason; very reliable studies show that the vast, and I mean vast, majority of U.S. citizens have tried marijuana, and that a sizable percentage of the public uses or has used marijuana at least recreationally. This includes doctors, lawyers, financial leaders, and even yes, our past two presidents. But for the random chance of events, these successful people were not “discovered” and so their lives remained unchanged. But for the discretion of a policeman, back in the day when police officers were permitted discretion, hundreds of thousands of people would not be in the position they find themselves in today.

One person’s trip through the legal system and resulting hell that it can cause, with it’s well-meaning “let’s get you the help you need,” even though the person can not afford it. Let’s “get you a job” that you will hate because full employment is a condition of probation, even though the person has a start up business that they believe will succeed in the long run; “let’s put you into anger management” even though the man and wife admit that the event for which the neighbor called the police was a perfectly friendly argument and that they are just “loud.” The well-intentioned judges, and third party treatment providers (who now very much wag the tail), want to “fix” you even when you believe there is nothing that needs fixing. I ask simply this: when did the legal system become a sociological experiment in “re-tuning” people, simply because they had a singular incident with a policeman, an agent of the State?

I once had a client who used marijuana to “keep the voices” at bay, he had experienced a psychotic episode as a teenager, and found that pot (which usually exacerbates schizophrenia it should be mentioned) not only calmed him, but halted the auditory hallucinations he was beginning to experience. He didn’t drive, but had a driver’s license which was a necessity for his job (it isn’t clear why as he did not need to drive for his job) and he had a job that permitted him to live as he chose. An officer entered his house without knocking, after transposing the house numbers, and then his world fell apart. Drug court was offered, the hallucinations returned, medications were too expensive, the state insurance wouldn’t pay for it and finally asked the court to just punish him so he could go back to smoking pot. That comment cost him sixty days in jail, and then a year of probation and drug testing. He asked the court to send him away for the full term if necessary, because he needed to smoke his medication and he understood it was illegal and that the judge needed to punish him; all he wanted was to serve out his term. The judge couldn’t condone his “illegal behavior” even though the guy had expressed the fear of killing himself if the voices were uncontrolled).

The judge refused to just put him in jail and let him serve the term, without placing him on probation. (To be clear, when a judge sentences less than the max for an offense, the remainder is held over the person’s head while probation is completed; there is nothing improper at all about asking a judge for the max sentence, and no probation). He finally just left the state and moved to California, where he could legally smoke medical marijuana and live his life. He still likely has an active warrant for his arrest in Utah, his driver’s license has been suspended as a result in California, and he can’t return to see his family for fear of being arrested.

It would be bad enough if these stories were isolated, but unfortunately, they are not, rather these kinds of events are legion and a product of a system that has not been accountable largely because justice courts have been court of NON-record since their inception (set to change in July of 2011). Sure, there are judges who might be deemed “tough” or “rogue,” but the majority of these stories arise from the following perfect storm of circumstances: a well-intentioned judge; a mindless young prosecutor for whom this job is their first; an unrecorded court proceeding (studies demonstrate that an audio record aptly restrains judges from over-reaching); and an unrepresented (Pro Se) defendant. Defendant’s enter into agreements that are far reaching, unintelligible due to legal jargon, and have hidden complexities. Want an example? Courts are supposed to warn defendants of all of the possible consequences of entering into any plea agreement and then failing probation; jail, increased fine, contempt, etc.; however they are under NO obligation and most don’t have the requisite knowledge in any case, to warn about possible/likely civil consequences. Thus, a person who asks EVERY possible question about probation, would be unlikely to be informed of the fact that a plea to a “possession of a controlled substance” charge would inevitably lead to a six-month suspension of their drivers license! By the time the defendant figures out what has happened and tries to lawyer up and retract their plea – it is far too late; the wheels of justice have turned and run over the defendant in the process. Now with a ticket for “driving on a suspended license” they face a violation of probation for that charge, another six month suspension of their driving license, and a snowball effect from hell – game over!

The system I fear, has grown too big for itself.

Copyright © 2009 DUI UTAH