Pity The Poor Prosecutor

Pity the poor prosecutor in a DUI case.  He has driving symptoms, field sobriety tests, at least one officer's obervations of the suspect's appearance and behavior, statements by the suspect, the officer's professional opinion of intoxication, breath or blood alcohol tests — not to mention the "DUI exception to the Constitution" working for them.  The accused is denied his Sixth Amendment right to counsel, his Fifth Amendment right against self-incrimination, his right to be presumed innocent, and increasingly his Fifth Amendment right to jury trial.   He has laws which presume the defendant to be guilty if the machine is .08% or higher — and further presumes that it was the same two hours earlier when he was driving.  The burden of proof in a DUI case is – by law – shifted to the defendant.

Not enough, some prosecutors complain.  American citizens shoud not have the right to refuse testing, they say.  And breath tests should not have to comply with state regulations designed to improve accuracy in order to be admitted as evidence. 

Prosecutors Face DUI Challenges

Casper, WY.  Aug. 27  –   Securing a DUI conviction in a jury trial in Wyoming is not easy, some prosecutors say.

They say it can be difficult to prove that a defendant had a blood-alcohol concentration of .08 or above at the time he was driving.

If a person refuses to take a test under the law, prosecutors often have scant evidence to convince a jury beyond a reasonable doubt that the person was impaired, said Keith Gingery, a deputy county and prosecuting attorney in Teton County.

Weichman also said blood-alcohol evidence is frequently suppressed at trial based on minor technicalities that must be followed under state law. He said that can result in acquittals.

In order to introduce blood-alcohol evidence, prosecutors must follow the state Department of Health’s rules and regulations under the implied consent statute…

And even if someone arrested for a DUI agrees to take a test at the police station, 30 minutes or more could have elapsed since he was stopped by law enforcement. Lorrie Pozarik, facilitator for the Governor’s Council on Impaired Driving, said a blood-alcohol test “could easily be done an hour and a half after a person was driving.”

That can be problematic for prosecutors, because a toxicologist can only estimate a defendant’s blood-alcohol concentration at the time of driving, Pozarik said, raising potential doubts in the minds of a jury…

(Teton County Prosecutor Steve) Weichman questions the wisdom of giving people arrested for DUI the option of refusing to take an alcohol test — even though such a refusal results in a driver’s license suspension…

Gingery advocates working on comprehensive DUI legislation in 2008 through collaboration with prosecutors in Wyoming. He said he hopes to introduce sweeping legislation in 2009.

Amazing!  With the DUI laws in this country already ignoring the constitution, prosecutors are now crying because they have to comply with breath testing accuracy regulations, because American citizens have the legal right to refuse to submit to these inaccurate tests, and because juries may reject the presumption that the blood-alcohol was the same two hours earlier!

(Thanks to David O'Shea.)

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