Why Prosecutors Try to Nail DUI Defendants That Are Not Guilty

An angry DUI prosecutor pointing finger

angry-prosecutor-300x225No rational person doubts that drunk driving is a dangerous act. At the same time, the DUI laws in California and the rest of the country have been repeatedly “reformed” to cause the arrest of drivers who are not even close to being drunk. A blood alcohol content (BAC) of 0.08 is all it takes to earn a DUI conviction, even in the absence of unsafe driving.

The politics of DUI convictions

The war against drunk drivers, fought by groups like Mothers Against Drunk Drivers, increased public awareness of the need to have a designated driver at hand if you plan to drink. That’s a good thing. It has also produced harsher laws and questionable convictions that do little to deter drunk driving accidents, most of which are caused by drivers who have a BAC that exceeds 0.15. Yet M.A.D.D. and similar organizations continue to lobby for tough DUI laws while demonizing drivers who cause no harm.

Because M.A.D.D. and similar organizations are well funded, their lobbying efforts make headlines that catch the attention of politicians and prosecutors. Just as no legislator wants to be seen as “soft on drunk driving,” no prosecutor wants a career to be jeopardized by failing to get enough DUI convictions.

Questionable convictions

Prosecutors know that most of the people they charge will plead guilty. Many will do so without the advice of legal counsel. That encourages prosecutors to charge “iffy” cases — the ones that would be thrown out or end with a Not Guilty verdict if a DUI defense lawyer represented the accused driver.

Many DUI defendants who are entitled to a dismissal or acquittal decide to bite the bullet and take the consequences of a conviction. They either fail to understand the defenses that could be raised on their behalf or they do not want to spend the money it takes to hire a skilled DUI defense attorney. Prosecutors take advantage of accused drunk drivers who do not know that their rights have been violated as well as those who fail to raise defenses that would establish a reasonable doubt as to their guilt.

For example, police officers know that unwritten arrest quotas are a key measure of their job performance. Since DUI arrests are popular with the public, they tend to look for any excuse to pull over drivers, particularly near “bar time” when the chances of finding a driver who has been drinking increase. Many of the excuses they use to stop drivers, including a “slow drift” within a traffic lane or failing to signal a turn when no signal is required, would never satisfy a judge if they were challenged in court. Prosecutors know that. They also know that, if the challenge is raised, they will not be allowed to use the DUI evidence that the officer obtained after the stop took place. But prosecutors charge the case anyway, knowing that most defendants will plead guilty rather than raising a challenge that would lead to dismissal of their cases.

Even when the police find evidence that prosecutors are permitted to use during a DUI trial, the evidence is often weak of ambiguous. Because of something called the “blood alcohol curve,” a borderline breath test result of 0.08 or 0.09 might not reflect the driver’s actual blood alcohol content at the time of driving. Breath test results may be inaccurate if the officer who administered the test did not precisely follow test procedures. Few officers bother to do so. Even borderline blood tests are subject to challenge. Yet prosecutors continue to seek convictions of cases that scream “reasonable doubt” because they know that accused drivers are likely to plead guilty.

The right to an acquittal

A December 2011 report prepared at the request of California’s Division of Motor Vehicles found that DUI conviction rates varied from county to county. Overall, about 79 percent of drivers arrested for DUI in 2006 were convicted. The other cases were dismissed, reduced to something other than a DUI (such as reckless driving), or ended with Not Guilty verdicts.

Notably, the study found that counties with high arrest rates tended to have lower conviction rates. The most reasonable explanation is that high arrest rates reflect bad arrests by officers seeking to boost their arrest statistics. Yet many of those bad arrests go unchallenged, resulting in unwarranted convictions.

The study also found that juries in some counties tend to acquit drivers who have low BAC levels, even if those levels exceed the legal limit of 0.08. While that tendency has probably become less prevalent thanks to the barrage of advertising by groups like M.A.D.D., the statistics may also reflect a backlash by jurors who understand that safe driving by an apparently sober driver should not ordinarily be penalized, no matter what a machine says about blood alcohol content.

It is understandable that some drivers cannot afford to exercise their right be acquitted by a jury that finds reasonable doubt. It is sad that many prosecutors care more about conviction statistics than honoring their oaths to uphold the Constitution. When reasonable doubt exists, prosecutors should dismiss cases even when defendants have not hired a lawyer. Unfortunately, that rarely happens.

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