Wednesday, April 16, 2008

DUI prosecution persecution..real life victims of absolute immunity

The Agitator has a good post about some horrible DUI injustices recently.

He points to two documented cases where police arrest drivers who blew very very low (and quite legal to drive) amounts on the breathalyzer. In both cases, the police believed that although the breathalyzer was low, the defendants were probably under the influence of drugs. This belief of the police constituted probable cause.

After they were arrested, the defendants were tested for drugs, and none were found.

Undaunted, the prosecutors of the cases went forward anyway.

Of course, because the defendants were clearly innocent, the cases were eventually beaten.

Unfortunately, in most jurisdictions, once probable cause is established, as long as a prosecutor choses to continue prosecuting a case, the case remains open until the defendant pleas out or the case is tried. This is true even if overwhelming evidence of innocence appears before trial. Because of this, these clearly innocent people were out thousands in attorneys fees.

I don't blame the police for the arrests in these cases. In fact, I agree with these arrests, and would have made them myself. There was clearly probable cause at the time of arrest.

However, for the prosecutor to go ahead with a case, not when there is just obvious reasonable doubt-but when the balance of the evidence is in favor of the dependent strikes me as unjust-and a waste of the taxpayers money-who pay the prosecutor to prosecute people they think are guilty.

Of course, its bad enough that the people must go through this ordeal-but because of absolute immunity they are not entitled to any compensation for this prosecution despite the prosecutors knowledge of overwhelming exculpatory evidence. they are out thousands for appearing guilty at one point-despite being able to prove their innocence.

These prosecutors are also highly unlikely to be disiplined administratively. In most jurisdictions, there is usually no real ethical rule that the prosecutor would have broken with these prosecutions. Most ethical rules simply tell prosecutors not to prosecute if they think there is no probable cause. They say nothing about knowledge of actual innocence or overwhelming probability of a failed prosecution. For these prosecutors-it was just another day at the office.

Of course-this is all statistically unlikely to happen to you-but thats why nobody cares. Its also what makes problems like this so frustrating to those affected: if your arrested-even your closest friends will think you must have done something.


Martin Weiss said...

So how often do you think this happens?

If it's only 2 or 3 times a year nationwide, is it worth legal action.

Also, I think any overenforcement of DUI may be due in part to MADD and in part to agencies like the one I work for.

George Weiss said...

"So how often do you think this happens?"

I don't know. Nobody knows. There is no commission to study statistics of malicious prosecution. This wouldn't show as a wrongful conviction, since they were eventually, after spending a lives savings-found not guilty.

If we did allow legal action-we might find out.