THE CALIFORNIA DUI ENIGMA
and
The Social Drinkers Guide
What to Do If You Are Stopped For Drunk Driving

ABOUT THE AUTHOR
EUGENE ELLIS
www.MRDUI.com

In 6 months I will have been practicing in San Diego courts for 30 long years.  During the last twenty-three of those years (1982 to 2005) I have limited my practice to successfully defending people accused of driving under the influence of alcohol and drugs. The following article was originally written by me 15 years ago. Over time I have added to it; but before you read it, allow me to tell you a short story to demonstrate the awesome power of the "truth." I was in court waiting for a trial department to open so I could start my client's DUI trial. I decided to stop in and listen to another DUI jury trial already in progress until I was called into my courtroom.
They were just picking a jury so I quietly sat in the back of the courtroom. After a couple moments of questioning the prospective jury panel, the prosecutor asked each member of the potential jury, to my amazement, if they had ever read an article by a local DUI attorney in the San Diego Reader. In other words, if the juror admitted to reading the article you will read below, they would be booted by that DA.  Should you admit having read this article if asked? That is between you and your conscience.   
                            

THE DUI ENIGMA
and
The Social Drinkers Guide
What to Do If You Are Stopped For Drunk Driving

PART ONE
The following is the opinion of the author and is not intended to give legal advice to any specific person. The reader is advised to seek legal counsel if prosecuted for DUI. Laws change daily. Only a skilled DUI legal practitioner can tell you what the law is at any given moment. This information is of general nature intended for readers age 21 or older and is based on California law and assumes you are not under prior court order to do otherwise.

Let's start with some basics. Driving while under the influence of alcohol or any other drug is antisocial behavior. The horror caused by the death or maiming of a loved one by a "drunk driver" is unthinkable. The pain caused by such an incident scars forever not only the victims but the drinking driver, who is usually a decent, law-abiding citizen. No sane person would want such a thing to happen, not even one time.

However, what if elected officials use this terrible blight on society as an excuse to whip the general public into a frenzy and to capitalize on the human misery flowing from this carnage, only for the purpose of getting votes in the next election? And what if other effective remedies to the Driving Under the Influence problem are ignored deliberately? Finally, what if the liquor and restaurant industries pay big bucks into the political coffers of these same elected officials, or chapters of MADD, to lobby against legislation directed at the liquor and restaurant industries' contribution to the problem?

"Control" is the key word. You will not wipe out DUI any more than you will wipe out any other disease. But a healthy body is a body in "control," and the same applies to a healthy society. Let's look at some facts. There is little doubt that the 0.08 percent blood alcohol law is window dressing and avoids the real issues. The fact is 0.08 percent is so low a blood alcohol level that local police officers have told me privately that they cannot possibly tell the difference between 0.07 percent and 0.08 percent based on objective symptoms during the roadside sobriety test. Consequently, if you admit to having had a drink or if the officer smells alcohol on your breath, you are going downtown for further tests, no matter how you do on the field sobriety test or roadside breath test. The foremost authority in the world on DUI, A. W. Jones from Sweden, refers to the roadside tests as "monkey tests" and says they are of no value in DUI testing.

So, why do these embarrassing roadside tests at all? Don't do them, is my answer: don't ever take the so-called field sobriety test. First of all, it is not a sobriety test. It is a coordination test, and many people who clearly are not under the influence of alcohol simply are not coordinated. That's a fact. If they want to use a coordination test to measure sobriety, they should require you to take a similar test once each year to provide a baseline from which to measure your performance at roadside. And in fact, what would that mean? That no one who was not coordinated could drive? In fact, the law of our land says that if a law in its operation produces a ridiculous result, then it is not a Constitutional law. Such would be any law that required you to take balance and divided attention tests before you could get your license.

Secondly, the tests are 100% subjective, and the officer can conclude you failed even if you are the most coordinated person in the world. He later may tell the jury at trial that you did poorly to prove he was right in arresting you and bringing you downtown for further testing. Once downtown, your blood alcohol level may have increased and may, in fact, be 0.16 percent (over double the legal limit) or higher at that later point in time. Depending upon when you had your last food and drink of alcohol, however, you easily could have been 0.04 percent, 0.06 percent, or 0.07 percent blood alcohol level at the time you were driving. The only blood alcohol level that is relevant or important under the DUI code, is the blood alcohol level at the time of driving. The fact you are determined to be 0.08 percent or more at a later point in time, does not automatically make you guilty of breaking the law, under the 0.08  law (CVC Section 23152B) or other so called "Per Se" laws across the United States
Per Se laws are laws that make you guilty by presuming you are under the influence of alcohol even if you are not. Simply by virtue of the fact that you reach a certain blood alcohol level (0.10, or 0.08 now, in most states) with no other evidence, you are deemed under the influence of alcohol or any other drug. How could that be constitutional?  It is not, in my opinion.  In lawyer's parlance we call it a "Legal Fiction," created by legislators who "cow" to the votes and money of MADD (Mothers Against Drunk Driving) to unconstitutionally lighten the burden of the prosecutors from the constitutionally mandated (by our founding fathers) superlative laws, embedded in the Constitution, Bill of Rights, and Declaration of Independence, enacted by Jefferson, Franklin and those we are taught to revere; said laws protect us from an overbearing, tyrannical government,  who might later use those powers to take away our freedoms in other ways than the DUI context they first appear in. 

In other words the Per Se laws are built on a series of great government illusions and deceptions.  Each human body is an incredibly complex medical marvel.  In order for the "Per Se" laws to have any validity, instead of the medical marvel we all are, we would all have to turn into Toyotas on an assembly line, where 5 ounces of gas move you so many inches, and equally so many ounces of alcohol make you under the influence, or not. Such is simply a medical impossibility, and the government knows it.  Still, MADD, with all its votes and millions, will get what it wants from the Senate and Congress and local State governments--whatever it wants, legal, constitutional, or not. 
 
 Furthermore, any conclusion to be drawn from a blood alcohol level assumes the machine is measuring accurately, which oftentimes is not the case. In order to challenge the blood alcohol level, it becomes necessary to retain a competent attorney to point this out to the jury, and to show the arresting officer is not an objective, detached, third-party witness. He wants to see a conviction to vindicate his decision to arrest. Obviously, the officer will exaggerate and distort in order to prove his point, and he is able to do so because very few of the field sobriety tests truly are objective.

Which raises another question: Instead of ordering the accused to recite the alphabet while the officer writes into the police record the alleged results, why not allow the accused to actually write the alphabet out in his own hand? This would be direct evidence of the accuser's ability to demonstrate his dexterity and hand coordination directly to the jury.

Taxpayers have purchased expensive video and audio taping equipment for our law enforcement agencies, but those agencies rarely use the equipment in driving under the influence cases, thereby denying the jury first hand evidence of the accuser's actual state of sobriety. Instead, the officer simply testifies before the jury about how badly the accused did. He actually is telling the jury, "Trust me. I have no motive to lie. If I say he did badly; that should be enough for you."

When I asked a local television moderator to question the police about what happened to those 16 expensive video cameras donated to the San Diego Police Department by Aetna Insurance, and which the local newspapers touted as the "doom of drunk drivers;" the local police person said, "They are all broken." Right! And I just saw Elvis last week, too.

 The fact is the officer does have a motive to lie, and, sadly, stretching the truth to gain a conviction seems to be the rule, rather than the exception. A retiring CHP officer recently interviewed for an investigator position with my firm told me he could double his annual salary by $50,000 working overtime making court appearances in DUI cases. He lamented that he disliked working nights because it required him to ride with a partner. This veteran CHP officer explained that if he stopped a suspected DUI and formed the opinion following the field sobriety test that the driver was not DUI, very often his patrol partner, eager for overtime, would say, "If you don't take him downtown, I will." 

 A local San Diego Police officer bragged to a pretty girl he was arresting that he would make $90,000 this year, $40,000 of that in overtime for arresting DUIs. Doesn't a $40,000 or $50,000 increase in one's annual salary provide a motive to lie about performance on the field sobriety test?  And in court, the prosecutor will fight like a tiger to keep me from telling you, the juror, about that; and sadly, all too often, the judge will back up the prosecutor and keep me from telling you this critically important potential officer bias.

 Ask your friends who were jurors on DUI cases if they ever heard anyone tell them in trial this critically important information. Because it is your word against the officer's, and the DA tells the jury, "My officer has no reason to lie," and the judge will not allow me to tell the jury about bias, or even to inquire properly through discovery just what the officer's DUI "bounty money" is for this year, I think it is time someone told you before you become jurors what I am not allowed to tell you in the courthouse.  Now do you start to see why that prosecutor wanted to throw anyone off the jury that read my article?

 It has gotten so bad now that the officers are unofficially told to destroy their "notes" that they make on the side of the road as they are arresting you once they write out the formal police reports 5 or so hours later in Denny's. This is such that even the smallest evidence of what actually happened at the scene that dark--and usually very cold and windy--night, on the side of the road, with cars screaming by you, scared and frightened to death you may be arrested for the first time in your life, even that little evidence is now routinely taken from the jurors, so they cannot see if the officer accurately transferred all the information from his notes to his police report later that morning.

 But a cop deliberately destroying his notes so jurors cannot see "firsthand evidence" of what happened on the side of the road that night is not the worst part. What is even worse is the precedent set in the officer's mind, when each officer is taught to lie when asked under oath about why he destroyed his notes. That is a felony--serious stuff. The fact that he knows he is just doing what he has been told to do by his superiors makes it no more right than what James Dean and the rest of the "plumbers" in the Watergate scandal did because they were following what the President of the United States told them to do. 

 Finally, folks, what happens when police routinely lie, or when far too many prosecutors and sadly, far too many judges stand by and watch officers lie daily in their courtrooms, and never raise a finger to bring this travesty of justice to the light of day, all in the interest of "catching Drunk Drivers" and doing "the right thing?" 

 I will tell you what I think. Whether it is the officer in the crime lab who uses the power and sophistication of the government scientists and lifts the fingerprint off one piece of non-incriminating evidence, and places it on incriminating evidence, as was being done routinely in the FBI crime lab until that officer was caught, or the nice DUI squad or CHP officer who receives $50,000 "DUI bounty money," and tells the jury under oath that you failed the coordination tests when you did not:

 It is a sin of our government to place these otherwise fine men and women in uniform in that kind of conflict of interest and turn them into liars, and then tell them they are doing a good thing and helping save lives by doing so. Those that read their Bible know that the words, "Thou shall not bear false witness against thy neighbor," were here long before we had DUIs, but not long before we had the desire to lie to gain a personal advantage over our fellow man.      

 Police officers and overzealous young prosecutors often are heard around the courthouse rationalizing "less-than-candid police officer testimony" in marginal cases, saying, "If they were not drinking and driving they wouldn't be in trouble in the first place." That may be MADD's law, but it is not the law in any state of the United States.  A public policy saying, "The end justifies the means," didn't work for the Communists, and it won't work in a free society.

 For these reasons, if you are stopped, do not take these "trick" roadside sobriety tests; and if you are a juror, demand to see the written alphabet, video, or at least audio tape recordings, so easy for a truthful officer to produce, or other first hand evidence of impairment. It is very easy to provide, if the officer really respects the jury, and the great jury system that has held us in such good stead from the beginning. The law is a search for the truth, and should not be a witch hunt guided by hysteria, half-truths, and self-serving statements from the now much richer arresting officer.

PART TWO

Recently, a San Diego police officer told me that as part of his training he was required to attend a class on the breath machine. He was amazed when a fellow officer was administered known amounts of alcohol in an effort to demonstrate the workings of the alcohol breath-testing machine. What amazed him was he saw the officer consume seven gin and tonics, and yet the breath results registered only 0.04 percent, well below the legal limit. I saw the same thing occur in alcohol studies I attended in forensic laboratories in Los Angeles, and it illustrates my point. If the officer weighed 200 pounds, and each drink he consumed was one ounce, the resulting blood alcohol level should be 0.13 percent. So, either the machine was testing improperly or the officer was tested right after drinking and before the alcohol was fully absorbed into his bloodstream.

That is exactly what happens to the citizen who is stopped just as he is leaving a bar. He is 0.04 percent or 0.05 percent and "okay" to drive at that point in time, but 30 minutes to two hours later, as the alcohol becomes absorbed into his bloodstream, he increases his blood alcohol level to 0.12 percent or 0.14 percent, well over the legal limit, without having had any added drinks. Incredible but true.

Because of this physiological phenomenon, we see people convicted of driving under the influence even though they are not guilty of violating the 0.08 percent law per se. Thousands upon thousands of people every day plead guilty based on a chemical test result over 0.08, never knowing they actually are innocent.

The statistics from the National Traffic Safety Council and the President's Committee on Drunk Driving some years ago stated that 80 percent of DUI-related fatalities are caused by 10 percent of DUI drivers.  Those of us in the trade call them the "Gamma Alcoholics."  These are sick people who repeatedly go through the court's revolving door, each time coming out a little more stripped of their social status and a little more dangerous to the rest of us.  That is because no one in the present system of justice has addressed adequately the causes for this continual abuse of alcohol. 

Elected officials insist on making public policy decisions that "look good" to the voters, but that are, in fact, not good for society.  Instead of providing state resources for "Social Model Alcohol Rehabilitation Houses," which have as much as an 82 percent "non-recidivist rate" (those who never drink alcohol again) and cause alcohol abusers to stop drinking for life, they'd rather lock them up in jails where they get no help for their alcohol drinking problem.

"Revenge" is a strong component of the law. To get revenge on lawbreakers "just feels good." But revenge is usually counterproductive in the long view, for the greater good of us all. There is a story by the famous French diving author, Jacques Cousteau, in his classic book The Silent World. In it, he describes how the Greek fishermen, Hard Hat Divers, were furious about the starfish eating so many of their sponges, which they collected every day for a living.  So to get revenge, these sponge divers suspended all fishing for one day, and the Hard Hat Divers dedicated one full day to ignoring their daily fare, the sponges, and collecting as many "starfish" as they could.

As the individual fishing boats piled hundreds of "starfish" high on their decks, in revenge these fishermen hacked them into thousands of tiny pieces, which were thrown back into the ocean with gusto. How sweet the taste of revenge. What the fisherman did not know, is that each piece of the "starfish," turned into a new "starfish." 

So it goes with revenge.  By getting revenge on not only the "Gamma Alcoholic," but, in addition, the social drinker, who is not really a danger to any one, we actually create thousands of very dangerous real drunk drivers by virtue of the fact these social drinkers have now lost their jobs and are often abandoned by their friends and relatives, leaving them only one friend, the bottle, who is as near as the closest liquor store, to the ultimate detriment of us all.

PART THREE

The biggest injustice, however, is the cruel, callous disregard that our lawmakers show for the rights of the thousands of 0.05 percent and 0.06 percent drivers who are arrested for DUI and eventually blow over 0.08 percent 30 minutes to two hours after they were driving.  These people are, in truth and in fact, innocent of Driving Under the Influence of Alcohol, but because of a misdirected emphasis by the government, these hapless individuals must hire an attorney competent in this area of the law and science and pay for the services of a medical doctor or toxicologist if they hope to have any chance of avoiding huge fines, jail time, and a very serious criminal record. 

And remember, these are ordinary citizens, just like you and I, who go to work every day and play by the rules, yet who still find themselves charged with a serious crime (not just a traffic infraction) and are treated by the courts just as if they committed a robbery or carjacking.  And what's worse, it's on their record for the rest of their lives, not just the 7-10 years the judge tells them.
When you see the great number of new liquor licenses being issued to small gas station convenience stores, who routinely sell beer and wine to young drivers; when you see the bright lights advertising liquor and encouraging people to drink because alcohol sales make up 80 percent of the net profit for the restaurant business and provide a huge tax base for our state; when you also consider how only two beers can equal a 0.08 percent blood alcohol level in a small person, you must ask yourself whose pockets are being lined to keep the law enforcement and legislative emphasis on the citizen who has just consumed a couple of "after-dinner" drinks and is snagged by a cop "who just happened to be cruising by" and who noticed the license plate light was not properly illuminating the license plate as the driver was pulling out of a restaurant's parking lot to go home.

To make matters worse, the United States Supreme Court in 1996 held that an attorney cannot challenge the subjective motive of an officer for making a traffic stop in open court. This means that if a police officer wants to pull you over only because he saw you exit a bar and figures you've been drinking, he can use the fact that your license plate is not properly illuminated as a basis to stop you and smell your breath to see if you exhibit the odor of alcohol. Under this Supreme Court decision his real motive in stopping you cannot be challenged. This decision encourages perjury (a felony) and is a national disgrace. Every right-thinking American should hang his head in shame over the case of Whren v. United States.

IF CALLED AS A JUROR IN A DUI TRIAL
WHAT TO LOOK FOR

Injustices always will occur. You can help to put a curb to these abuses right now. First, when you are a juror, remember a police officer has done his job when he arrests a person for "mere suspicion" of DUI. Think about it: every municipality has only so many officers to cruise the streets to keep them safe. If they had to determine out there on the streets who was "in fact" DUI "BEYOND A REASONABLE DOUBT" (your standard as a juror in the courtroom), an extremely difficult thing to do even after 5 days of jury trial with the help of scientists and other experts to assist them, they could only arrest one person in each three to five days. That would produce a ridiculous result, and no city could afford such a municipal burden. Each officer would have to be part policeman and part scientist and go back and visit the bartender and the witnesses for both sides. 

 Instead the officer has one job, and you, the Jury have a totally different job, to wit: the officer's job 51/49% is if he thinks you may be a DUI he sweeps you off the street. Your standard as a juror is completely different. Your job is to determine the truth, "beyond a reasonable doubt," based on testimony and scientific evidence you hear during 3 to 5 days of trial. In that trial you should demand to see a written alphabet test and audio/video tapes of the person who was drinking depicting their condition as close in time to the time of driving as possible. Consider evidence of impairment taken 30 minutes or more after the accused was removed from his vehicle as not relevant in determining the alcohol level at the time of driving. And if some police officers are so arrogant they expect you to take only their word without some independent corroboration, reject the unsupported testimony of the officer. If that is done often enough, you will see cleaner, more professional police work.

Secondly; stick to your guns as a juror. We paid a dear price for our constitutional rights. Many courageous young men have died on godforsaken, desolate pieces of real estate all over the globe so each of  these rights we are discussing here, such as in an ordinary DUI trial,  would be preserved  to protect us from an oppressive government who may someday come to take away the freedoms we enjoy so much. And one of the most important of these rights is that it takes a unanimous verdict by all 12 jurors to convict an individual of a crime. If you, as a juror, go along with a guilty verdict, only because 11 others feel the accused is guilty, and they pressure you to agree, and you give in for that reason alone, then you also are guilty of not following the law, the same law, I might add, that the citizen standing tall before you is accused of breaking; and though he may be punished, and you will not be, you are no less a law breaker than is he.  As an officer of the court I cannot tell you an untruth in this regard. Though the judge will never allow me to go into it in such depth in the courtroom, it is no less the truth and the law of our land.

More importantly, you have let down those who have sacrificed their lives so others could be free. In other words, if you are the lone juror and you are not convinced "beyond a reasonable doubt," it is your legal and moral duty to hold out and not give in.

Many jurors are confused by the "burden of proof" in a DUI trial. They ask, what does "proof beyond a reasonable doubt" really mean? Let me give you my test. You enter the courtroom; and the defendant sits all through opening arguments, the presentation of evidence, and finally the closing arguments with a hood covering his identity: You deliberate and give your decision to the judge, who then reads it out loud in the courtroom. As the hood is lifted from the head of the accused, you see the person accused is your son or daughter. If you still are satisfied that you did the right thing, then you know for sure that you convicted that citizen "beyond a reasonable doubt."

In making this important decision it is important to always remember: this is a criminal case, and a citizen may end up in jail for six months to one year or more, lose his job, and suffer the disgrace of a criminal conviction making it impossible to get a good job for 10 years or more, because of your decision in his trial. As a lawyer, I am not allowed to tell you during the trial about the penalty my client will suffer, but now I can, and I think you should know this information.

Before I leave the subject of jurors and DUI, let me comment on a common point of confusion. Unlike other crimes, those accused of DUI almost always are charged with two violations, 23152A and 23152B. The "B" charge is driving with a blood alcohol level of 0.08 percent or more in one's blood. The "A" charge is driving with enough alcohol in your system so you no longer have the ability to drive your car as a reasonable and prudent person would without alcohol or drugs. Many times a juror who is not quite convinced will decide to split the difference and find the citizen guilty of the 23152A but not guilty of 23152B, figuring the citizen on trial will get a lesser sentence. The sad fact is that the citizen will get the full sentence of up to six months in county jail, or more, if you find him guilty of either count. So don't be misled.

WHAT SHOULD YOU DO IF YOU INTEND TO LEGALLY DRINK AND DRIVE
" Be sure you do not have more than one drink of any kind.
" Before you go out, check all brake lights, license plate lights, and look for any minor imperfections a policeman will be able to use for an excuse to stop you.
" Be cautious driving after 10 pm or when crossing the U.S. border. Come to full and complete stops--no "California stops."
" If you see a policeman following you, pull into the first place possible without arousing suspicion.
" If stopped, be respectful at all times.
" Respectfully decline the field test based on this article stating such tests are subjective and often impossible to do. If you live in California, write to the address below, and enclose a self-addressed stamped envelope, and we will send you a "card" to hand to the policeman. If you are afraid they will arrest you immediately and take you downtown, rest assured that since it is impossible for the officer to determine if you are 0.07 percent or 0.08 percent based on your performance on those same field tests, you will be going downtown anyway, if you have admitted to drinking anything at all; and it is even worse for you later, if you lie about what you drink to the officer. 
" Complete silence is your only and absolute best weapon; anything that comes out of your mouth will get you into trouble later.  Justice Scalia, the Chief Justice to the United States Supreme Court, said in one opinion: "The officer has as much right to walk up to you as any other citizen, and you have an absolute right to ignore him and walk away, unless he officially stops and detains and arrests you." So, there it is folks: ziplock your mouth if you are stopped. End of conversation, OK? 
" Do not allow the officer to pass his finger or pen or other objects by your eyes and ask you to follow it while not moving your head; this test is very controversial and highly discredited in some scientific circles.
" Another problem is a number of people are confusing the small handheld breath device--about the size of a package of cigarettes--with the larger breath-testing machine usually but not always employed at the police station itself. That Alco Sensor handheld unit, made by "Intoximeters," is part of the field test, and if you are 21 and over, you always should refuse to blow into it because it will convict you, while the blood or breath test at the hospital or police station, on the other hand, is required by law.
" In other words you must complete one of those two tests: blood or breath (or in some states you are given a third option: urine). Again, when I talk about how you should blow into the breath machine at the police station, I absolutely do not mean the small handheld device in the field. In my opinion, blow in it, blow your case, and end up with a criminal record for life. I said for life, not just seven or ten years. Note: If you exhibit objective symptoms of drugs, they can require you to take a second blood or urine test; you should choose breath as your first option.
RECENT CHANGES
 Up until a year or so ago, that was all you had to know about what to do in the field if stopped for DUI.  Well, "there is nothing so permanent as change," and guess what--there are a whole group of new machines that are coming into the field in late 2004 and 2005. These new attempts on the part of the police to entrap the social drinker with a glass of wine or so at dinner, are evidentiary "in the field" breathe machines.  That means, if you choose breath, as your test of choice, and you are in the field, and they pull out one of these "new field breath machines" ( about the size of a large cigar box), still do not ever do any test in the field, in my opinion, unless under prior court order.  Instead switch to a blood test, because you know you have to be taken to a hospital, police station, or mobile station for a blood test.  You may not like needles, but, take my word for it, you will like getting a DUI on your record for life even less. 

 Rogue Judges

I am sorry to have to add this newest chapter to this ongoing saga of Heavy Handed Government Intrusion into our Constitutional Rights to be free of Government tyranny and oppression in our daily lives.
In the criminal justice system there are two types of criminal law practitioners, Defense Attorneys and Prosecutors. That's it folks, just those two. Judges come from either prosecutors or defense attorneys and here is a little bit of legal trivia: 80% of all criminal court judges were prosecutors. 
Most of us did not think about that very much in the old days. Until they criminalized DUI, it was: "those criminals" out there burglarizing our houses and murdering our friends and relatives, and even if the judge did rush them through the trial, so what; if they were not guilty of what they were on trial for, they surely were for other crimes they committed previous to that. A deep sigh is all the thought anyone might have given to that subject.
But now that millions nationwide are accused of a most serious crime, most of whom are ordinary, good, productive (until the DMV takes their licenses to drive) citizens, who are now criminalized and fed into the government's "conviction machine" and "rush to justice" judicial system. It is with the deepest regret that I must tell you as jurors to be on the lookout for the "Rogue Judge" who is still a prosecutor in judge's robes.  Only you can stop this deplorable practice, not us the attorneys, not the legislature--only you as jurors can put a stop to it; and stop it you must, lest your children are in front of such a judge accused of a crime, and the jury does not read this article or understand what is happening.
When a judge is an activist it is easy to see. Let me give you two recent examples: in a trial last week a judge, handsome fellow, sat there in his eloquent flowing black robes, but made faces within view of the jury demonstrating his disdain for the poor citizen who had paid dearly with every penny of his life savings for that few days in front of a now tainted jury, because he was in fact not drunk that night.  One of our expert witnesses, an eloquent "police procedures expert" and 37-year decorated police officer, was on the stand and the prosecutor asked him a question; as he started to explain to the jury, the prosecutor did not like what she was hearing and tried to stop him from finishing his answer. The judge, in an angry face, barked at my expert to not finish his answer. The witness made it clear he was not finished answering the prosecutor's question, and the judge said "I do not care, when she says, 'Stop,' you stop," with a very angry look.
But when it came time for the prosecutor's witnesses to answer the defense counsel's questions, they had diarrhea of the mouth and there was no shutting them up. "You opened the door, counsel," was the retort of the same judge, and they went on and on. In another case, one of my best trial attorneys came to San Diego from L.A. and the judge was so rude, he even refused to allow him to use the blackboard to demonstrate to the jury his expert's theory.
The judge is not legally allowed to be an advocate. He may see the prosecutor again and again, and form friendships, but you must take over and in that jury room bring out to all to hear the obvious, and if the other jurors feel the judge is, in fact, allowed to openly show his personal feelings, you alone have the vote that can put a stop to it: "not guilty." The judge has his job. You have your job. They are not the same. 
One of our most sacred rights in this country is to be tried in front of 12 citizens.  Why do you think Jefferson and Franklin and Adams rejected American citizens being forced in front of trial by a judicial officer?  Do you suppose it could have had anything to do with hundreds of years of tyranny at the hands of men in black flowing robes with glowing white wigs that put to death and put in irons hundreds of innocent men and women, sold their lands at auction for a pittance and arranged for their relatives to be there at the auction to buy it for a cut?  For that reason, our Constitution requires that the judge not be allowed in the jury box, or to taint the jury. Most judges are very proper and judicial. But more and more are not allowing the accused a fair opportunity totally free of judicial bias to present their side after spending, in many cases, every penny they have in savings to get before them.

But try as these Rogue Judges may to influence you to convict by not allowing the citizen his fair day in court, you alone can require that this be a fair trial with your single vote. So, what is the "test" to apply in determining if that is what is happening in your trial? A common sense one: place yourself in the shoes of the citizen sitting there. At the end of the day did you get a fair trial from a fair and totally impartial judge? If yes, fine; if no, vote your conscience.


                              
Conclusion: There are many professional officers on the road trying to keep our streets safe.  Always be polite, but refuse to do the field tests.  There is absolutely no statute or code that requires it.
If you want to learn more about your rights in California, send a self-addressed stamped envelope to:  EUGENE ELLIS, Attorney at Law, 3990 9TH Ave, San Diego, CA  92103.
Copyright ©2005 Eugene Ellis, all rights reserved.

Eugene Ellis, Attorney At Law
(619) 563-1010
3990 9TH Ave
 San Diego, CA 92103