Tennessee Titan’s TE Brandon Barden arrested for DUI after rollover crash

bardenFrom Jim Wyatt of the Tennessean:

Titans tight end Brandon Barden was arrested for DUI after a single-car accident in Georgia over the weekend.

According to police, Barden lost control of his car sometime before 4:30 a.m. on Saturday, and hit a ditch drain before the car flipped one and a half times, landing on its side.

The police report stated the officer at the scene could “smell a strong odor of alcohol.” When Barden refused field sobriety testing, roadside Alco-Sensor testing and state chemical testing, he was charged with a DUI, according to police. The incident happened in Lincoln County, Georgia.

Barden, who played at Vanderbilt, is from Lincolnton, Ga.

The two passengers inside the 2008 GMC Sierra refused medical treatment at the scene, police said.

Barden was charged with traffic violations that include DUI on refusal, and was booked into the jail. He was later released on bond.

Update: Why I don’t post arrest videos from my cases on the net

You may recall a blog post that I wrote a year ago entitled “Why I don’t post arrest videos from my cases on the net.”  It was about a downstate attorney who was facing disciplinary action for posting on youtube and facebook police videos that he had obtained in discovery in the course of representing a client. The attorney titled the videos “Cops and Task Force Planting Drugs – Part 1″ and “Cops and Task Force Planting Drugs – Part 2.”

I explained that the postings violated an Illinois Supreme Court Rule which requires that an attorney maintain exclusive control of all discovery obtained in felony matters.  Rule 415(c), as well as a professional conduct rule that requires that attorneys refrain from doing anything that might pose a threat to the fairness of an impending matter. IL Rules of Professional Conduct 3.6(a).

While I don’t like certain aspects of these rules (see my previous post for my reasoning), they are rules of conduct that are pretty clear-cut.

Today’s update is that the Illinois Appellate Court for the Fourth District upheld a trial court sanction against the attorney.  The case is People v. Fulmer and Gilsdorf, 2013 IL App (4th) 120747.  In the opinion, the court rejected the attorney’s claim that he had a First Amendment right to disseminate the information, as well as his claim that the Supreme Court Rule did not apply because the discovery was tendered before felony charges were formally approved.

According the Illinois Attorney Registration and Disciplinary Commission’s website, an ethics complaint against the attorney for his conduct is still pending.

Reforming the judicial retention process

In the Sunday Chicago Tribune, there was an editorial entitled “Firing Bad Judges” about the fact that no judge has lost a retention race in the past 22 years, including Judge Cynthia Brim, who was recently found not guilty by reason of insanity in a misdemeanor battery case.  The editorial outlined two proposed amendments to the Illinois state constitution which purport to fix this problem.

From the Tribune:

Two Illinois lawmakers have proposed changes to the state constitution that would make it easier to hold judges accountable. The amendments, sponsored by Rep. Kelly Cassidy and Sen. Bill Cunningham, both Chicago Democrats, aren’t identical, but they share much in principle. The lawmakers have discussed collaborating on a measure to present to voters in 2014, so this is a work in progress. But there’s a lot to like already…Both proposed amendments call for an independent and rigorous review to sort the competent from the questionable. Under Cassidy’s plan, candidates would be vetted by 11-member commissions in each circuit or appellate district. Six of the members would be non-lawyers, appointed by ranking statewide officers and county officials from each party. The other five would be lawyers elected by registered attorneys in the circuit or district.

Judges who earned approval of seven or more members would automatically get a new term; the rest would have to stand for retention or leave. That would produce a shorter, more meaningful ballot that essentially said to voters: These judges haven’t done a good job. Are you sure you want to keep them?

Cunningham would assign the review process to the state’s Attorney Registration and Disciplinary Commission. His plan would require judicial candidates to be certified before they could be appointed, run for election or seek retention. Only the candidates found qualified could appear on the ballot.

Cunningham says he’s essentially trying to codify the bar associations’ evaluation process. Those groups do a thorough and transparent job of identifying judges who ought to hang up their robes, but it’s a challenge to get the message to voters. Both proposed amendments would take the review process further by reflecting the findings on the ballot.

Under Cunningham’s proposal, sitting judges would need a “yes” vote from 66.6 percent of voters instead of 60 percent, a requirement that would make a big difference all by itself.

The incompetent judges identified by the bar associations — or in the Tribune endorsements, which rely heavily on those ratings — typically fare worse than other judges on the ballot. In November, Brim got 183,000 more “no” votes than the judge listed above her, a candidate recommended by the Tribune and bar groups. But she still got 63.5 percent “yes” votes.

Raising the threshold to 67 percent would have knocked her out, along with three other judges who had received negative bar association ratings.

I applaud these attempts to reform the system, and I am happy that some attention is finally being paid to this problem.  But I strongly disagree with these proposed solutions.

To start, the problems that we have with judges originate with how we choose them in the first place:

  • How do they get elected in the first place? It starts with primary elections.  Often, politicians game the system so that a politically connected candidate runs unopposed.  If not, there is a primary with five or six candidates, so that a candidate wins with 22 or 23 percent of the vote.  Many times that candidate is not the best qualified person, but instead someone with a political base or was the first name on the ballot or their name sounded attractive to enough voters (usually, female and Irish).  Virtually all judicial candidates run unopposed in the general election.
  • After that the judge is up for “retention” every six years, and all that is needed is a 60% yes vote.  No judge has lost a retention race since 1990, and very few before that.
  • So, in other words, win a primary with 22% of the vote and you can be a judge for life.

My problem with both of these new proposals is that they would usurp the right of the voters to vote on the candidate of his or her choice, instead allowing some committee to make that determination, by narrowing the field instead.  As a voter, I do not want a committee of politically appointed (read “connected”) people to decide who belongs on the ballot.

Equally bad is any proposal that gives the power to determine who is on the ballot to bar associations or the Attorney Registration and Disciplinary Committee.  And I say this as a 10-year member of the Chicago Bar Association Judicial Evaluation Committee.  Which is not to knock that Committee, or those of the other bar associations.  The CBA JEC members work very hard to vett candidates solely on their qualifications, including legal knowledge, courtroom experience, diligence, honesty, fairness and temperament.  And we explain our ratings in writing.

But our ratings are there to provide information to the voters.  Voters can read our voting guide and make their own decisions.  It would be the height of arrogance to assume that I have any business substituting my opinion for that of thousands of voters.

All we need to do to make it more difficult for bad judges to get retained is to raise the percentage necessary for retention.  The evidence shows that poorly rated candidates do much worse than the other judges, but still get enough yes votes to get over the 60% hurdle required for retention.  And good judges usually get in the high 70s or low 80s.  In my opinion, a minimum retention vote of 70% would be ideal, but I could live with 66.67%.  This would be enough to weed out the worst judges and keep the so-so judges on their toes.

I also suspect that in an age of increasing consumer sophistication and smartphones, that people will be better equipped to make decisions about judicial elections in the future, which means that an incremental change in the retention process now will likely produce optimal results in the future.

What are your thoughts?

Yet another DUI cop exposed for making false arrests

One way in which DUI cases are different from other crimes is that many of them are based upon an arresting officer’s “opinion” that the motorist has been driving while impaired. This opinion is usually based on things such as poor driving, an odor of alcohol or cannabis, bloodshot or dilated pupils, wobbly balance and performance on field sobriety tests.

From the prosecution perspective, this is important because we don’t want people to get away with drunk driving by simply refusing tests.

From the defense perspective, this is dangerous because it gives arresting officers great power to destroy people’s lives, based solely on their claims of “clues of impairment.”

When I was still in law school, I had an internship in a prosecutor’s office, and I remember one Friday afternoon when some prosecutors had a discussion about whether police officers lied about their arrests. Some wondered why so many case reports were virtually identical. Others doubted that an officer would risk his or her career to get someone that they didn’t even know.

Then I became a DUI defense attorney. Coming to court I would see “stack officers” — they had stacks of arrest reports. Some of them would write over 200 DUI cases a year — meaning that they made at least one DUI arrest for each night that they were on duty. Subsequently, several of them were exposed for exaggerating or falsifying DUI cases. I had long suspected these officers, but the State’s Attorneys would scoff, wondering why an officer would jeopardize his badge to get a drunk driver.

Earlier this week I wrote about the ongoing scandal with the Des Plaines Police Department, which brings into question their DUI practices.

Now comes a story about a Utah Trooper who has been exposed for trumping up DUI charges. Somehow she has written 1,500 DUI cases since 2006, including 400 in one year — in Utah, where it is very difficult to purchase alcohol!

Here is an excerpt from the article by Brady McCombs of the AP:

During her 10 years as a Utah state trooper, Lisa Steed built a reputation as an officer with a knack for nabbing drunken motorists in a state with a long tradition of tee totaling and some of the nation’s strictest liquor laws.

Steed used the uncanny talent — as one supervisor once described it — to garner hundreds of arrests, setting records, earning praise as a rising star and becoming the first woman to become trooper of the year.

Today, however, Steed is out of work, fired from the Utah Highway Patrol, and she — and her former superiors — are facing a lawsuit in which some of those she arrested allege she filed bogus DUI reports…

Steed stopped [one person] because he was wearing a Halloween costume and booked him even though three breathalyzers tests showed no alcohol in his system. Choate said he spent $3,800 and had to take four days off of work to get his DUI charged dismissed…

The 49-page lawsuit includes two defendants, but Studebaker said dozens of others are lined up and willing to tell their stories. He said they are requesting the lawsuit be broadened into a class action lawsuit.

Every one of her DUI stops back to at least 2006 should be under suspicion, he said, adding that could be as many as 1,500 people.

The lawsuit, filed in December, also accuses the Utah Highway Patrol of ignoring Steed’s patterns of higher-than-normal DUI bookings and waited too long to take her off patrol. The agency declined to comment.

Steed joined the agency in 2002, and during her first five years, she earned a reputation as a hard-worker whose efficiency led to high arrest totals. By the time she ascended to trooper of the year in 2007, she was held up as one of the agency’s top stars.

In 2009, Steed became a member of the DUI squad. Her 400 DUI arrests that year were thought to be a state record, and more than double the number made by any other highway trooper.

Steed’s career, however, turned. In 2012, while on the stand in a DUI court case, Steed acknowledged purposely leaving her microphone in her patrol car so that superiors wouldn’t know she was violating agency policy.

By April 2012, her credibility had come into question so much that a prosecutor said he would no longer prosecute DUIs if Steed’s testimony was the only evidence.

Just think about that — 400 DUIs in a year in Utah. If she worked about 225 days in a year, that means that she had to have made about two DUI arrests a night.

When someone is given a badge, they are given awesome powers and responsibility. They can destroy lives with one mistaken assumption.

When an officer goes to war against drunk drivers, he or she runs the risk of becoming so obsessed with making DUI arrests that he or she loses perspective. It is like the old adage about “when you are a hammer, every problem looks like a nail.” When you are a DUI cop superstar, every bloodshot eye, every trembling step, every scent of cologne starts to become a sign of alcohol impairment. And that is why we need good DUI defense lawyers and judges and juries with backbones to stand up to these officers to protect our civil liberties.

Update: Yankees’ pitcher Pineda pleads no contest to DUI

pinedaThis is an update to last August’s post about New York Yankee pitcher Michael Pineda getting arrested for DUI.

According to Newsday:

TAMPA, Fla. — Yankees pitcher Michael Pineda has pleaded no contest to driving under the influence.

Hillsborough County State Attorney spokesman Mark Cox says Pineda entered the plea Wednesday in a Tampa courtroom.

Pineda was arrested and charged with DUI in Tampa on Aug. 20 last year.

Cox says a judge ordered that Pineda serve 50 hours community service, up to one year of probation, attend DUI school and pay a $500 fine.

The 24-year-old Pineda missed all of 2012 with a shoulder injury, and he’s expected to be out until at least June of this year as he recovers.

Thanks to the Feds, we know what happened with phony Des Plaines DUIs

A few days ago, I plead for Des Plaines to explain the news reports  alleging that some of their officers had falsified DUIs.  They did not.

But now, thanks to the Feds, we are getting some information.  Jonathan Bullington of the Chicago Tribune reports as follows:

A former Des Plaines police commander stands accused of padding DUI arrest records to get federal grant money and was charged with one count of making false information, federal authorities announced today.

Timothy Veit, 55, of Mount Prospect, is alleged to have “knowingly and intentionally inflated” the number of DUI arrests made under a federally funded grant designed to curb drunk driving and seat belt violations, according to charges from the U.S. Attorney for the Northern District of Illinois.

Federal authorities said the grant required submitting a form listing the number of DUI arrests made by police and the blood-alcohol content of the person arrested. Authorities said the department was then reimbursed for officer overtime pay, mileage and equipment.

From 2009 to 2012, Veit allegedly falsely inflated DUI arrest numbers by 122, and provided fake blood-alcohol content levels for those “fictitious” arrests, authorities said.

Authorities claim that Veit’s false reports meant the police department “fraudulently obtained” $132,893 in federal grant money from Sustained Traffic Enforcement Program grants funded by the U.S. Department of Transportation’s National Highway Traffic Safety Administration.

Veit served as the department’s project director for the STEP program, authorities said, and his duties included certifying that the department complied with a grant requirement showing that an average of one DUI arrest is made for every 10 hours of overtime officers worked in STEP enforcement campaigns.

He retired last year after 31 years with Des Plaines police, according to authorities. Veit could not immediately be reached for comment.

Last week, Des Plaines officials confirmed that several police officers face possible suspensions stemming from the city’s internal investigation into mismanagement of the grant program.

Police Chief William Kushner said he was unaware of the charges against Veit.

“It’s regrettable when someone violates their oath of office for whatever reason,” Kushner said.

If convicted, Veit faces a maximum of five years in prison and a maximum fine of $250,000.

This is yet another piece of evidence that shows the pressure that police departments are under to make DUI arrests in order to raise revenues, either through grants, or through impoundments and fines.

This is in addition to the traditional incentives for police officers to make DUI arrests, thereby allowing them to pad their income with extra overtime for paperwork and court time.

One has to wonder:  if these officers would go so far as to make up fictitious cases, and violate federal law by reporting them to the U.S. Government; isn’t it also very likely that the Des Plaines police department was trumping up actual DUI arrests in order to boost their numbers?  And how many other police departments have been doing the same thing?

What should be the legal limit for driving with marijuana in your system?

Illinois is a zero tolerance state when it comes to driving with marijuana in your blood.  In other words, you can smoke pot late one Saturday night and be charged with a DUI a week later because it was still in your blood system. I have blogged about this before, including this memorable post about a young woman who received a seven year sentence after being involved in a fatal crash several days after smoking cannabis.

But now that other states are allowing for medical marijuana, or legalizing it, those states are debating “legal limits” for cannabis.

Washington TV station KIRO TV ran their own tests, which showed that coming up with a legal limit isn’t easy, because everyone has different tolerances.

There have been some interesting blog posts in response to KIRO’s report.

Jacob Sullum on Reason.com has an interesting discussion, including these thoughts:

the fact that “the intoxicating effects of marijuana vary…from person to person,” which helps explain how Norton was still OK to drive at 36.7 nanograms, is relevant, but it cuts both ways. Perhaps some people are impaired at five nanograms, but it seems clear that many are not. Setting a low cutoff may seem like erring on the side of caution, but that is true only if you discount the injustice of arresting and punishing people for driving under the influence when they do not actually pose a hazard to others. The variation in responses to marijuana, which is partly a function of tolerance and experience … but also due to pre-existing differences, argues against having any sort of per se standard.

Over on Mother Jones’ website, Josh Harkinson points out that:

Ten states, many of which have legalized medical marijuana, simply make it illegal to drive with any trace of marijuana in your blood. Other states essentially regulate the drug like alcohol, requiring drivers to stay below a set limit of cannabinoids in their blood. When Washington voters legalized pot last November, they also outlawed driving with a blood THC level over 5 nanograms per milliliter—about half the level detected in Koon. Ohio and Nevada’s limit is even stricter: 2 ng/ml. These rules appeal to a public accustomed to drunk-driving standards, and they give police a simple benchmark for making arrests.

But these approaches don’t account for what scientists know about marijuana’s effects on drivers. “The reality is that alcohol and cannabis are two very different drugs that affect people in very different ways,” says Jan Ramaekers, a psychology and neuroscience professor at Maastricht University in the Netherlands. A 2009 study funded by the National Institute on Drug Abuse found that THC can persist in chronic pot smokers’ blood for a week after they stop smoking, sometimes at levels in excess of 3 ng/ml. Other research shows that those residual blood levels (and sometimes even much higher levels) don’t impair most heavy users’ psychomotor skills. If the goal is to arrest only people who are driving dangerously, Ramaekers says, then laws like Washington’s could lead to a rash of false convictions.While booze can make people drive faster and more aggressively, marijuana has the opposite effect: Pot smokers, studies show, tend to compensate for their impairment by slowing down and leaving larger gaps between themselves and other cars. Still, Ramaekers cautions against thinking that stoners acting like Sunday drivers are safer. Marijuana users may “try to create their own box of safety, and within that world they can operate fine,” he says. “But there’s a lot of other information outside of that box that they can’t process, and that is a problem.”

What do you think?

What is going on with Des Plaines DUIs? Some transparency please!

The Chicago Tribune had an intriguing story today about Des Plaines police officers facing disciplinary action concerning “alleged misreporting” of DUI cases in order to get overtime pay.  But no details were forthcoming.

According to the story, reported by Jonathan Bullington:

Several Des Plaines police officers face possible suspensions stemming from a city investigation of alleged misreporting of DUI arrests to obtain overtime pay, officials said.

The overtime pay reportedly came from a federally funded grant designed to catch drunken drivers and seat belt violators.

Police Chief William Kushner said Friday that several officers would be disciplined, and the department might seek one officer’s resignation. He would not name the officers or specify how many are involved.

Kushner also declined to elaborate on what the officers are accused of doing but said an internal investigation of this nature typically centers on violations of department rules and policies. He said an internal probe concluded last week, and that federal authorities are also looking into whether any laws were broken.

Kushner said the department is “putting steps in place to ensure nothing like this would ever happen again. … We want to put this behind us and move forward.”

In 2011, Des Plaines was awarded a $116,190 Sustained Traffic Enforcement Program grant, the third largest in the state. The department had taken in $22,500 as of last March, when city leaders told the Illinois Department of Transportation that paperwork submitted for the grant might have included arrests made by officers who weren’t actually working on grant-funded time, IDOT officials have said.

IDOT cut off the grant and allowed Des Plaines to investigate. The former commander who oversaw the program retired shortly after the grant was suspended.

So what does this mean?  I have no idea.  Des Plaines isn’t talking.

However, if you follow this blog, you might recall that last year I reported that: “Former Will County State’s Attorney Jeff Tomczak — who is in a position to know — has brought out evidence that Will County officers have been given a quota of 1 traffic stop per hour and one DUI per 10 hours in order to maintain Federal grants.”  And how I also wrote that the Howard County, MD police had a written policy mandating officers to write 2-4 citations an hour, in order to stop as many vehicles as possible in order to get DUI arrests.

You may also recall the many Chicago Police officers who have been caught over the past six years for exaggerating or making up DUI cases, allegedly to increase their overtime pay.  (If you don’t read this or that to get the most noteworthy examples).

And if you have a long enough memory, you may remember how a little over 10 years ago it was revealed that Highland Park police was targeting African-Americans and Hispanics (or anyone wearing a sombrero).

The longer Des Plaines covers up for its officers and refuses to release details, the more we can speculate.  Perhaps Chief Kushner should remember that his salary is paid for by the taxpayers of Des Plaines and Cook County (and these federal funds are paid for by all taxpayers), and that he owes us all a full accounting.

Going to the Secretary of State? Another reason why you need an experienced attorney

Last month, I wrote a post about why you need to retain an attorney before having a formal hearing for license reinstatement — yes, even for your first hearing, and yes, even if “everyone tells you that everyone is automatically denied at their first hearing.”

I want to amend that sentence to add one more thing — you need to hire an attorney who is experienced and knowledgeable about the Secretary of State — and is willing to put in the time and effort necessary to help you get the result that you want.

I say this because today someone came into my office for a consultation.  I won’t and can’t go into details.  But I can say this:  this person is revoked.  He hired an attorney before his first hearing.  The potential client said that he first met his attorney at the Secretary of State’s waiting room before his hearing.  I am not 100% sure what happened, but I do know this:  this person was not properly prepared before his hearing.  He testified to things that did not square with the evidence known to the Secretary of State, he said things that contradicted the reports of his treatment provider and evaluator and he said things that made him appear unworthy of being trusted with a driver’s license.

As I read the Secretary of State denial letter, I was dumbstruck.  I am sure that some of the mistakes came from the client, who admitted to me that he was very nervous at the hearing, and he probably said some of those things because he thought it was what the Secretary of State wanted to hear.  But I am also sure that a lot of the mistakes came because this attorney did not properly review the evaluation or spend time preparing his client.

So just a word of caution to everyone:  don’t hire an attorney for a Secretary of State hearing unless he or she is willing to meet with you, review your documentation, and spend time preparing you for the hearing.  That is the minimum that you should expect.  Anything less should be a deal-breaker.