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Was Your Breathalyzer Test Properly Administered?

Eleven Ohio policemen were fired for lying, and as a result of their actions, authorities expect to have to reverse convictions obtained in many of the cases the officers handled. An internal investigation by an Ohio city's police department disclosed that the policemen had not met the qualifications to administer breathalyzer tests in DUI/DWI cases because they had cheated on the examinations. The lack of proper certification taints the test results as reliable evidence. Although all the DUI cases they handled will have to be reviewed (and likely, dismissed), no exact number of affected cases was available.

Officer’s Threat to Have Drug-Sniffing Dog Called to Scene of Traffic Stop Voids Drug Possession Conviction

On August 5th, the Virginia Court of Appeals rejected the claims of the Commonwealth that police officers had not “seized” the defendant when they told him they were going to get a drug-sniffing dog to “go over his car” unless he gave permission for them to search it. In Middlebrook v. Commonwealth, the issue before the court was whether that statement to Middlebrook, which prompted his admission he had marijuana in the car, arose from a consensual encounter or not. The trial court found that the encounter was consensual, and that the admission was voluntary.

The Court of Appeals disagreed and threw out Middlebrook’s conviction because the officers lacked any legal basis to detain him, other than their unformulated suspicion’s that he might be selling drugs. And, the court held, after the officer told him that he was going to call the dog to the scene, “no reasonable person would have felt free to leave.”

Is Justice Being Done in Virginia?

Twenty-eight years ago our community was shocked by a deer hunter’s discovery of the body of a pre-teen boy in a wooded area in Hanover County. His mother had reported him missing days before when she returned home from work and found his school backpack near the front door and the door key still in the lock. The boy’s hands and feet were bound, and he was clad only in his briefs and socks. That he had been abducted was clear, but the medical examiner’s report also indicated he had been sexually abused, and had been struck in the head. He died from exposure to the cold when he fell and could not get up after trying to hop for help nearby through the brush, branches and tree roots.

There were no leads, and therefore no immediate arrests. However, there were clues. Forensic tests revealed the presence of chemicals used in pesticides in the bindings on the child’s limbs. About 6 months later similar chemicals were found on ligatures used to bind two young sisters who were abducted, stripped, and left tied to trees. Fortunately, they managed to free themselves and escape from a wooded area near their home. The girls were able to identify their abductor, a then-19 year old man, who worked for his family business – an exterminating enterprise. The man confessed to the girls’ abduction. He was sentenced to a long prison term.

Due to some similarities in the two cases, the man became a suspect in the abduction and death of the little boy. But he was not charged then. Apparently, there was insufficient evidence linking him with that crime. This would change a quarter century later.

The man was indicted for the murder of the little boy by a circuit court grand jury shortly before he was to be released from prison on parole for the abduction of the two sisters.  He was held without bond. A trial for the boy’s murder ended in a hung jury (i.e., all jurors could not agree on his guilt or innocence). He was re-indicted and tried again before another jury, with the same result.  But this did not end the matter.

The man was tried a third time last week. New evidence was produced in this trial in the form of the testimony of a woman who had not been heard from before in the previous trials. She said that 28 years ago she overheard the man talking to another person about what may have been the boy’s restraint. She identified the man with whom the defendant had this conversation, but though available through subpoena, he did not testify. On cross-examination she said she did not know the defendant was being tried for the boy’s murder until she saw newspaper or television news reports on the case after the second trial, although she resided in the area the entire time. It is unknown whether or not she had come forward with information about the boy’s murder sooner – such as soon after the body was found.

Newspaper reports describe some jurors stating the presence of the pesticide chemicals in the two cases was important. Although jurors are not required to divulge what discussions were had in the jury room, it was the woman's testimony that was missing in the first two trials, and may well have been the determining factor in “un-hanging the jury.”

Certainly, this verdict is going to be a subject of discussion among our community for a long time. At least, it should be, because all of the evidence was circumstantial, and there was no identification of defendant as being seen with the victim, no confession by him of committing the crime (as he did in the case involving the two girls), and no forensic evidence of the kind normally associated with sexual assault cases such as hair, fibers, blood, or semen. Was the defendant responsible for the little boy’s death, or did someone else do it? 
 

Law enforcement officers and prosecutors in Virginia have come under public scrutiny recently. Just two weeks ago, a group of almost 20 former FBI agents publicly challenged the governor to pardon former Navy personnel now in prison for the rape and murder of a woman in the Tidewater area a few years ago. The former agents held a press conference in Richmond and signed a petition asking the governor for a reprieve of these men. After a review of the case record and the evidence, these former G-Men concluded these men could not have committed the crime, that their co-defendant (another Navy enlisted man who is serving a life sentence for the crime whose DNA was at the crime scene) did act alone as he has now admitted, and that their confessions were illegally coerced by the police.

Among the legal and forensic sciences communities across the country, questions in the Hanover case will be discussed, and these issues debated back and forth:

• Why wasn’t the defendant tried sooner, such as while he was still in prison on the conviction for abducting the little girls and the memory of witnesses was fresher?

• Was  the defendant tried and re-tried, and re-tried again, only because he was about to be released on parole?

• Were the chemicals found on the bindings in both cases only found in pesticides, or were they then common to other products?

• Why wasn’t the man to whom the defendant allegedly made the statements the woman testified about called to testify to corroborate her testimony – or to disprove it? Wouldn’t he be the best witness to tell the jury exactly what the defendant was talking about – and, if the conversation even occurred?

• Did the jury know that child molesters almost never choose victims of different gender, but select as victims either boys or girls; and if they did, what effect did this information have on their verdict?

Tougher driving comes with DUI conviction

Chicago Tribune
By Monique Garcia | Tribune reporter

Motorists busted for drunken driving in Illinois after Wednesday will have to blow into a device to prove their sobriety every time they get behind the wheel—or their vehicle won't start.

December 29, 2008

The restriction is part of a new law that appears to be the state's biggest crackdown since 0.08 became the blood-alcohol standard in summer 1997.

The measure, one of the strictest in the nation, is aimed at first-time offenders convicted of driving under the influence. Those convicted will have 14 days to get a breath-alcohol ignition-interlock device installed in their vehicle's dash. With the device, if a driver has a blood-alcohol content above 0.024, the engine won't start.

Those with multiple DUI convictions previously could have been ordered to install the device.

As many as 40,000 offenders a year could be affected by the new law, which the General Assembly unanimously passed in 2007. The take-effect date was delayed so Illinois Secretary of State Jesse White could get ready to enforce it.

Sponsors responded to a concern from Mothers Against Drunk Driving that alcohol-related crashes and arrests had stopped declining in recent years. The group argued that technology could be used to get more drunken drivers off the roads.

"We were really trying to figure out what was the best way to move the ball forward a little bit," said state Sen. John Cullerton (D-Chicago), who sponsored the measure. "They suggested we try this technology, which has been proven."

Illinois is at least the fourth state to require the devices for first-time offenders, following New Mexico, Arizona and Louisiana, according to the National Conference of State Legislatures.

The bill's backers cited a 12 percent drop in alcohol-related traffic fatalities in New Mexico after that state implemented a similar law in 2005. Last year in Illinois, there were 508 deaths from crashes involving alcohol, according to state transportation officials.

"So often what we talk about when trying to prevent drunk driving is how to change human behavior, but these devices really allowed for an 'a-ha moment,' " said David Malham, a victim advocate with MADD-Illinois. "With this, it's not about changing human nature, it's about science interfering and preventing reckless behavior."

The Illinois Department of Transportation already is airing public service ads branding DUI offenders as "losers" and offering a re-enactment of an offender breathing into the ignition-lock device.

The devices will replace judicial driving permits, which judges issued to those convicted of drunken driving who needed to use a car to get to work or school. Now first-time offenders still will lose their license for 30 days, but will be allowed back on the road if they agree to have the devices installed in their vehicles.

Drivers who register a 0.08 or higher blood-alcohol level at the time of their arrest will be required to drive with the monitoring devices for five months. Drivers who refuse alcohol testing but are convicted must use the devices for 11 months.

The gadgets also will require drivers be tested periodically while the car is running. Drivers will have to blow into the device again within the first 5 to 15 minutes of a trip, then at least twice every hour.

If alcohol is then detected, the device instructs the driver to pull over to side of road and the engine is stopped. A report goes to the secretary of state's office for review and additional punishment is meted out.

The law isn't foolproof. There's nothing to prevent someone convicted of DUI from driving a car without the ignition-lock device. But the penalties for skirting the law are severe: if caught and convicted, a driver faces up to 3 years in jail.

"That's serious business," said Susan McKinney, who oversees the monitoring device program for the secretary of state. "There's no way we can ensure people won't find ways around it, but they'll pay heavily if they are caught."

The devices cost the driver $80 for installation and about $80 a month to rent. The secretary of state will charge another $30 a month to monitor drivers and administer the program.

"I've had people say, 'Wow, this sounds really inconvenient,' " Malham, of Mothers Against Drunk Driving, said. "And I say, well, 'Yeah, but driving drunk is not only inconvenient, it's dangerous and often deadly.'"