The Presumption of Innocence

The Presumption of Innocence

The corner stone of our criminal justice system and the Constitutions of County and States is a simple statement – an accused is presumed innocent until proven guilty, and the proof must also be that which is beyond a reasonable doubt. But that does not seem to be the case when it comes to DUI charges.

DUI Charge - Innocent until proven guilty. In reality, it is the opposite.

The corner stone of our criminal justice system and the Constitutions of County and States is a simple statement – an accused is presumed innocent until proven guilty, and the proof must also be that which is beyond a reasonable doubt.

In most criminal prosecutions this is the way it works, but for citizens accused of DUI the experience is the opposite and it starts with the moments leading to the arrest. In traveling through this process keep in mind that the actors have different jobs and those jobs are in conflict with the maxim above.

The police officer who makes the traffic stop is there to enforce the law, if they see a traffic violation it is their duty to make a stop and issue a citation. So why then are they trained to make 4 stops per hour during the times when drivers are most likely found to be DUI? If they are to passively watch for infractions why the mandate? Why focus on nighttime seatbelt emphasis, when it’s really a DUI enforcement campaign? What these lead to are illegitimate stops in hopes of it being DUI, or selective enforcement of rules of the road that are not enforced during day time hours. An example of this is the mud flap statute and the lack of actual enforcement of this statute except during hours popular for DUI. The mud flap statute requires all vehicles to be equipped with fenders, splash guards, mud flaps, or some other device to minimize spray to the rear. Whatever the device it must extend to the midpoint of the axle, and be as wide as the tire.

I did some research on a case a few years ago and found that over the 4 years prior to and after my client's "mud flap" violation stop, the statute had been enforced by way citation issuance only 4 times! The 5th time was the time it was used to stop my client and ultimately arrest him for DUI. However, what struck me as odd was very few vehicles on the road including government, state, and police vehicles complied with the statute. That meant almost every vehicle on the road was in violation and yet, a stop and citation for this violation was issued less than half a percent of all citations. No other crime generates such selective and subjective enforcement of the motor vehicle code.

Dolan, M. (2015, January 31). U.S. judges see 'epidemic' of prosecutorial misconduct in state. Los Angeles Times.

Once arrested and not yet even charged, when the alleged crime is merely an unsubstantiated accusation, you are booked into jail. This is typically discretionary, but here in Whatcom County its policy. Unless you have previously been arrested for DUI, even if that previous charge was dismissed, being booked and placed into jail is state law. Presumption of Innocence?

During the first appearance in front of a Judge, a hearing called "Arraignment," the Judge reviews only the arresting officer’s report and determines whether you should be released and if so what conditions. DUI is the only misdemeanor where restrictions upon how you use your own body can be imposed, and the most likely crimes charged to have bail imposed. A simple review of the local jail roster will show that bail is imposed on every DUI arrestee, but not so for other crimes charged/booked in to the Whatcom County jail.

In the instances of a second arrest in a lifetime for DUI (if you were arrested when 21 and now 70 years old the 49 years of perfect behavior stands for nothing) certain things are mandatory as conditions.

Typical release conditions order a person to not drink, refrain from going to any business where the primary purpose of the business is sale or consumption of alcohol, and not drive unless validly licensed. The conditions MUST be to install a photo enabled Ignition Interlock device, and frequently include, taking the medication Antabuse, and/or report for random urine and/or breath testing when required, wear an ankle device to monitor secretion of alcohol from your skin, and sometimes a court will order a person to NOT drive, and go so far as to club their vehicles, or order them to turn in their license plates.

Bail has not been mentioned and that is because it’s rarely imposed in any meaningful amount that would serve as a means of incentive or encouragement to comply with a court order. Instead the focus is on behavior modification with above mentioned devices and such. If the allegation is DUI and unproven, and operating on the presumption of innocence why does a court and the legislature see fit to control what a person places in their body? Conditions of release should be imposed to secure the person at court and face their charges and not punishment in the forms above. It should be noted that the above conditions all have a monthly fee beginning at $100.00/month.

Once a person complies with the above conditions, and assuming the case goes to trial, the presumption of guilt has to be overcome in a trial. In my experience most potential jurors have no idea what the concept of presumption of innocence means. Furthermore, the State prosecutors ask the potential jurors to give then a "fair trial." A fair trial must be fair for the accused not the State. The burden of proof for the state is unfair in the scheme of things because they have to prove it, prove it beyond a reasonable doubt! The state must overcome the presumption of innocence held in the minds of jurors, and this is NOT fair to them. But it is what makes a trial fair, fair for the accused person standing trial.

However, this basic premise is lost in theory and application. The state legislature removes authority from Judges to ensure the admission of evidence and prohibits defense lawyers from making any meaningful challenges to evidence we know is, and can prove is flawed and not worthy of consideration (See RCW 46.61.506).

When there is a challenge to the most important evidence (blood and breath tests) and when there are instances that the defense can show it is faulty, compromised, or non-scientific, in nature, it is either admitted with instructions to ignore it, or swept under the rug, and in doing so it is often the case that juries fail to understand that the evidence should have no bearing on the final result. Worse, state witnesses in the form of toxicologist will incorrectly testify that the evidence is sound and unimpeachable, and when challenged are able to rely on studies and opinions that support their opinion having never heard of the more reliable and persuasive studies that show the opposite.

A defendant can always hire their own expert to provide the evidence, but why should they bear the cost of poor science? Experts are expensive. Often they are not local and the travel costs, court time costs, and their actual fee make affording such an expert impossible for the average DUI client.

Finally, when there is a lack of proof, state prosecutors have been know to resort to tactics that cross the line, such as the use of inappropriate PowerPoint presentations that incite prejudices that override the evidential weighing process, as was the case here in Washington as reported by the Marshall project in a non-DUI case, but an illustration just the same.

From this case, (available at the Washington Supreme Court, State v. Walker, Case No.89830-8, cite unavailable at this time of writing) there are some much needed reminders of the rules of trial work:

Attorneys may use multimedia resources in closing arguments to summarize and highlight relevant evidence, and good trial advocacy encourages creative use of such tools. Moreover, closing arguments are an opportunity for counsel to argue reasonable inferences from the evidence. However, advocacy has its limits, and a prosecutor has the duty to "subdue courtroom zeal," not to add to it, in order to ensure the defendant receives a fair trial Given the serious need to curb abuses of such visual presentations, we encourage trial court judges to intervene and to preview such slides before they are shown to a jury. Providing the presiding judicial officer with a printed copy of the Power Point slides in advance is not burdensome and could curtail the necessity of a retrial due to misconduct.

While the Walker case was one that went to the Supreme court for a review and not a DUI, DUI cases are tried more frequently than any other misdemeanor, (they are among the top 3 misdemeanors cases charged), and crossing the line of prosecutorial zeal and misconduct happens all too often.

Koppl, R. &amp Sacks, M. (2013). The Criminal Justice System Creates Incentives for False Convictions. Routledge Taylor & Francis Group.

It happens because of the presumption of guilt in DUI cases. It happens because society, like officers, presumes everything and everything other than what the Constitution demands from the first appearance to the last. A DUI defense attorney who recognizes this and makes jurors recognize this, and who is more knowledgeable in roadside tests, breath testing and blood testing is the only defense for those charged. Only he or she had the tools, skill, and knowledge to level the playing field. Choose well.