There ought to be a law...

There ought to be a law that says that every time a new law is enacted by the legislature, the legislature should be required to make room for it by unenacting another law from the books and making it widely known that they have done so. Let's enact a page limit on law. And, no, this proposal isn't to preserve shelf space nor trees. In fact, since law is primarily stored and accessed online nowadays, there really is no limit to the number of laws we can enact before we run out of shelves or trees. So the question is, when is enough law enough?

Some, like me, would say that there is already enough law. Laws that are either obsolete, dead letter, overly intrusive or restrictive (read: puritanical) by present day standards, and/or unenforced should be deleted from the "books". Not only should laws be widely known and understood, they should be limited to what's necessary to deter and prevent that which is truly socially undesirable, not just speculatively so. Without these limits, every day ordinary behavior (whether completely desirable or not) is rendered illegal, perhaps punishable by a small fine only in many instances, to the point where nearly everyone (if not everyone) is arrestable at least once, if not throughout, a typical day. Does this sound like a "free society"? At present, it is difficult to get through the day without violating at least one law. As an example, have you ever driven anywhere without exceeding a posted speed limit by at least 1 mile per hour, even if for only a few seconds? If you say "yes", well... I won't call you a liar because you're reading my blog. But, you get my point... Completely law abiding behavior, in every sense of the word, is a virtual impossibility in a society that has millions of pages of description of what constitutes unlawful behavior.

Since we live in an era where everyone is busy re-defining the problem and the language we use to describe it, I'll follow suit and go ahead and propose that we should stop calling legislators "lawmakers". Let's, instead, call them "law quality control officials" (LQCO's). Rather than thinking of new laws to enact, our elected LQCO's should be thinking of ways to improve on existing ones, by clarifying some and unenacting others. I'm just not sure we really need even one more law. And sometimes, as any cattle rancher will tell you, you must occasionally thin the herd.

Every New Year we lawyers pay attention to what laws are new on the books, and if there are any deleted or lapsed (which does happen on occasion), it generally goes without ceremony, any effective notice to the masses, and not due to any such brilliant new legislation such as the one I am proposing.

So here's a peek at SOME of the new laws coming our way in 2008:

Cell phone use in vehicles. SB 1613 and 33. Before you run out to buy a new Bluetooth device (that actually works in a satisfying way - and doesn't just make you look like an electronic gadget loving dork who is not really paying attention to what's happening around him), let me put you at ease by telling you that the laws concerning cell phone use while driving are not set to go into law until July 1, 2008. So enjoy your last six months of relative bliss while you drive with one hand on the wheel and the other pressing your cell phone to your ear, or with no hands on the wheel while sending a text message or an email...but please do so safely. And to the teenagers with provisional licenses: You will have to hang up and drive altogether (hands free or not)... at least until you are no longer a teenager, that is. July 1 is the end of an era. Let's call it the "pre-hands-free era", where it is unclear (at best) whether there was a resultant increase in the numbers of traffic accidents. Interestingly, in recognition of the Fourth Amendment's prohibition of unreasonable warrantless searches and seizures, these new laws disallow law enforcement's use of these laws as a pretext to pull someone over. In other words, they have to "know", and not simply "suspect", that you are violating one of these laws before they pull you over on that basis alone. I must say, I do like this built-in privacy protection. Different.

School Zones. AB 321 will now allow local jurisdictions to adopt an ordinance establishing a speed limit of 15 miles per hour in a school zone. [So, you must slow down even when driving Miss Daisy through a school zone].

Street Racing. SB 67 reauthorizes a law that lapsed in 2006. It allows police to impound a vehicle for 30 days when a person is arrested for street racing, exhibition of speed, or reckless driving. [See, laws can lapse...in theory anyway.]

Smoking in Vehicles. SB 7 prohibits anyone from smoking a cigarette, a cigar, or a pipe in a vehicle, whether in motion or not, in which there is a minor. The smoker can be fined up to $100. Police can only cite for this violation in connection with a stop for a suspected violation of another driving offense. [For enacting this brilliant law, the Legislature truly deserves the Nanny Award... do we really need this law? Is it really going to prevent even one instance of lung cancer? Who knows?]

Traffic School. AB 645 prohibits a court from allowing a driver who commits a two-point violation from attending traffic school. Two-point violations include drunk driving, hit-and-run, speed contests, evading an officer, and vehicular manslaughter. [Uh, this wasn't happening anyway, by the way].

Stocking stuffers!

I am proud to share the following true story:
An anonymous informant told me that he had two members of the Santa Barbara Probation Department show up at his door on Sunday afternoon. They announced that they wanted to search his residence for a person they were interested in. Instead of refusing to the invasion of privacy in the traditional way (i.e., by saying "no"), the informant directed their attention to a decal which he had placed about the front door which says, "I do not waive my right against warrantless search & seizure". To each question, he simply tapped the window behind the sticker. After stammering, arguing and issuing various threats, the probation officers left in a huff. They have not been heard from since. Apparently, the Fourth Amendment is alive and well this holiday season.
By the way, the stickers, along with other great stocking stuffers, can be purchased on my website http://www.ivlawyer.com/...

Breath to Blood Fallacies of DUI Law

It is the alcohol in your blood that affects your ability to safely drive a motor vehicle. Because of the many causes of alcohol on the breath, only one of which is alcohol in the blood, and the fact that the alcohol content of your breath is, at best, loosely correlated with the alcohol content of your blood, the relationship between alcohol on your breath and your ability to safely drive a motor vehicle is actually pretty weak. So, why are breath testers (aka intoxylizers) in such wide use around the globe for determining levels of intoxication? Economics. It is cheaper and more expedient to test the breath of an individual than to draw and then test their blood by lawful and forensically approved methods. While cheaper, nearly everyone will agree that breath testing is less accurate than blood testing to establish a particular blood alcohol content. How much less accurate is breath testing than blood testing is hotly debated.

The debates center around three fallacies as follows:

The first fallacy is that breath is not blood and, therefore, a breath test is not a blood test. But you knew that already, right?

The second fallacy is that the breath generated in everyones' deep lungs (aka alveolar air) carries the same number of alcohol molecules when their blood alcohol content contains the same concentration of alcohol. This is simply wrong. The "breath/blood partition ratio" that the industry of breath instruments programs into their instruments is one gram of alcohol per 210 liters of breath. However, this ratio of 1:2100 is an average, not the truth about you or me. In fact, this ratio varies between 1:1300 to more than 1:3000 across the population. This difference across the population can and likely does account for innocents getting wrongfully accused as well as guilty people getting away with DUI. More vividly, my deep lung air might contain more alcohol than your breath, even though our blood alcohol content is the same. And, most likely, neither one of us has exactly a 1:2100 ratio at any given time. So, the industries' instruments are not designed for you and me, but for the population in general.

The third partial-fallacy, is that these breath instruments are in proper working order, properly maintained, properly calibrated, operated under ideal conditions (temperature, wind, etc.), actually testing deep lung air, and operated by someone with adequate training, who is, at a particular time, administering the tests in strict compliance with their training.

So, back to economics... After these alarming fallacies were exposed over many years of agressive and skilled litigation of DUI's, resulting in many people being found not guilty of DUI, California's legislature, along with many other state legislatures endeavored to write into law what might be viewed as a new law violation: Driving with a BREATH alcohol content which tests .08% or greater on instruments which presume a 1:2100 blood/breath partition ratio.

The Supreme Court of California affirmed on appeal the inadmissibility of testimony of an individual’s partition ratio, especially when the defendant exhibited clear signs of alcohol intoxication. Here the court looked to legislative intent to discourage drunken driving therefore a conviction based on alcohol measured by breath as amended by statute would stand. People v. Bransford, 884 P.2d 70 (Cal. 1995).

Say it ain't so!? Yes, the Supreme Court favored the California Legislature's one-size-fits all pragmatism over the pursuit of justice in the individual case. Sounds great until you're the one looking at a DUI case based on a Breath Alcohol test result narrowly above the legal limit, doesn't it? (Advertisement: If you are facing such a charge in Santa Barbara, and believe that your unique breath partition ratio may have over represented your blood alcohol percentage, then contact me at 805-892-4922 right away to discuss how you might be able to successfully defend your case).

Beware the scarlet letter "D" for DUI

The Daily Sound recently published a list of persons arrested for misdemeanor DUI on a particular weekend under the heading, "Police were busy over the weekend". While smalltown news outlets may experience slow news days, this practice of putting the names of persons arrested on this class of crimes (even though they are public record) has not been the standard practice of journalists here in Santa Barbara unless the individual is a public figure or concerns the public at large in some way (like, for instance, when the community christmas tree gets hit). So, what's going on here? Is this another isolated case of poor journalistic judgment here in Santa Barbara, or could it be seen as part of a national trend to publicly shame DUI defendants?

Maricopa County, Arizona, often on the leading edge of retrograde draconian punishments (e.g., its most famous effort: tent city), has hatched a new way to "crack down" on the "growing" problem of drunk driving. The County Attorney is putting his name along with the mugshot of DUI arrestees on billboards as a threat to motorists that they too could end up having their likeness published in an unflattering light if they end up getting arrested for DUI.

Whatever the public safety benefit, there is another way of looking at this. Criminal Law Professor Dan Markel, at Florida State College of Law, commented on the practice of shaming of DUI defendants as follows:

"The very goal of shaming is the dehumanization of another person before, and with the participation of, the public. Before we permit democratic institutions to subject an offender to ridicule, scorn and humiliation, we have to ask whether this kind of punishment comports with evolving standards of decency and the dignity of humankind. The answer is clearly no."

The question is, have we evolved beyond the witch-hunting days of Salem, Mass., or are we destined to repeat the mistakes of the past? Is the public shaming of the fictional adulteress Hester Prynne with the scarlet letter "A" fiction? Cutting off the hands of petty thieves and public floggings are likely effective deterrents, but in the United States, at least, we reject these forms of punishments. There is a lot we can do to deter drinking and driving that we are not doing. Less ambiguity in our laws, and better public transportation are dui deterrents that do not simply appeal to our base instinct to humiliate, dehumanize, and shame our fellow human beings.

Universities Are Paying More Attention to Criminal Conduct

According to the LA Times, the Virginia Tech shooting tragedy has inspired more vigilance by university admissions officers for undergraduate and graduate programs. Some schools, mostly private, and those 315 schools who make use of the Common Application, have either added or made more probing questions concerning the prior misconduct of the applicants. The Los Angeles Times today printed an article called, "Does a pot bust trump a 4.0 GPA?", which calls attention to this new trend. Obviously schools are hoping to weed out individuals who, according to their criteria, may present undue safety risks.

Those who have plans to apply to college and/or graduate programs should think seriously, and soberly, about how certain behavioral patterns may limit their pursuit of higher education. Those who have suffered arrests for criminal acts, or who have been cited for misconduct by their academic institution, should consider fighting those charges in order to avoid the long term negative impacts. My prior posts concerning how a criminal conviction reduces one's long term earning potential and how such a conviction may even interfere with travel plans may be of interest to persons who are concerned how various forms of misconduct may negatively affect their plans for the future.

If you are facing charges of academic or criminal misconduct, you should speak to a lawyer right away.

NO Canada!

In a previous post I addressed how a conviction of a crime (even a misdemeanor) can negatively impact a person's earnings. What you probably didn't know is that a criminal conviction (even a misdemeanor) can cause one to be excluded from Canada and other countries with similar immigration policies (e.g., France). If you don't believe me, see for yourself on Canada's website. My advice to anyone who has a need or desire to travel to Canada, is to avoid becoming convicted of a misdemeanor or something more serious. And, if you have been already convicted (and can't change that), then contact the Canadian consular office nearest you to explore what may be your options to enter. If you have suffered any criminal conviction, particularly in the last five years, you should not book flights to, nor drive to, Canada without taking a close look at this potentially expensive interruption of your travel plan. Actually, don't take for granted that you can enter any country when you have a criminal conviction in your past. It is always wise to research the immigration policies of any country before you book your travel. To find a consular office of the country you are planning to travel to, click here.