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Archive for September, 2009

Now That The Gates Brouhaha is Over, Can’t We All Just Get Along?

Tuesday, September 29th, 2009

No question about it, we Americans are a nation of people that want to be left alone.  We cherish our privacy, and do not take infringements on it lightly.  This privacy phenomenon dates back to the founding of our nation, and was codified in our Constitution as the Fourth Amendment to the Bill of Rights.  People do not like government being involved in their lives, and law enforcement, in particular patrolling police officers, need to be acutely aware of and sensitive to this at all times.

This past summer’s arrest of the prominent Harvard Professor Henry Gates for disorderly conduct while having difficulty entering his home after returning from a trip, and the major American brouhaha that followed, illustrates the above point.  Gates and a driver were detained by the police after they arrived in response to a neighbor’s call of suspicious activity.  Who said what to whom seems to be at the heart of the controversy.  In light of the call the police had a legitimate concern that Gates and his driver could have potentially been up to no good.  Gates was apparently irritated by what he thought was the heavy handed manner he was treated by the police in his own home, and accused them of racism.  Regrettably, the situation resulted in Gates being arrested for disorderly conduct.

Perhaps everyone just overreacted?  Certainly the circumstances, at least as reported, and the police response bring to mind the old adage: “sticks and stones may break my bones, but names will never hurt me.”  It is this writer’s opinion that Gates should have been deferential and respectful.  There was no excuse for harsh words. On the other hand, the police should not have made the arrest.

Oftentimes I have had occasion to lecture clients on interacting with the police.  While most citizen police interactions are innocuous, when one is being formally contacted by the police only a “‘yes sir’, ‘no sir’, ‘yes ma’am’, ‘no ma’am’”, will do.  This is not the type of an encounter that one may wish to needlessly prolong or aggravate.  Demonstration of an inappropriate and/or bad attitude is never appropriate, and even dangerous, as the Gates episode clearly demonstrates.  Gates’ expression of his opinion of the officer’s perceived personal character trait for prejudice was completely inappropriate in light of the nature of the encounter. It needlessly escalated an already uncomfortable situation, and perhaps was the only reason for his arrest.

I remember an incident in the spring of 2005 when I was lecturing an early Saturday morning class.  The classroom was located in a large office mall in Milpitas, California.  My twenty five students and I were the only people in the complex that morning.  On entering the building I misdialed the security code while disarming the burglar alarm, and the thing went off.  I re-dialed the correct code and that turned it off.  Fifteen minutes into my lecture in walk the police.  Even though it was obvious what was going on, and that we were present in the classroom legitimately, they respectfully, although firmly, asked for identification which I immediately provided along with a syllabus for the lecture that was sitting on the podium, justifying our early Saturday morning presence.  That was the end of it.

Perhaps police culture in the United States has really changed over the course of the last several years.  Perhaps law enforcement in the United States has become too competitive.  I can remember back in the mid 1960s spending my summer vacations riding along with Sergeant Peter McCarthy, SFPD, as if it were just this past summer.  We patrolled what were then to me vast swaths of San Francisco, and everywhere we went, Sergeant McCarthy, my grandfather, was afforded rock star status that crossed all social, economic, and racial lines.  And that respect and deference was always returned in kind, and then some.  The man walked on water, and I loved him with all my heart, and the lessons that he and the then San Francisco community taught me during those summers of my youth about respect and deference, have guided me in all of my own public contacts throughout my life and have served me well.

I think the country lost out on an opportunity for some social healing in the aftermath of the Gates brouhaha.  Gates and the arresting officer conducted themselves terribly.  Gates was out of line for projecting anger, rather than respect and appreciation.  The officer was out of line in arresting a fifty four year old partially disabled man in his own home after he had been identified, even though he was behaving obnoxiously.  While I am generally satisfied with the work of President Obama, in this case the beer drinking invitation at the White House should have been conditioned on both parties making public and sincere apologies for their conduct, same were in order, and would have sent a much needed message to the country.  We all really do need to get along better, and not just during those times that we are sharing beers.  Now that the brouhaha has passed can’t we all just get along?

If you or someone you know has questions regarding criminal justice issues please contact the San Jose criminal lawyers at the Law Offices of Bernard P. Bray.

Should I Take the Test, and If So, Which One?

Monday, September 28th, 2009

California drivers faced with a request form a police officer to summit to an alcohol chemical test must submit to a test, or be faced with the almost always certainty of a mandatory one year license suspension.   While there are various defenses that may be available for a refusal to summit to the mandatory testing requirement, this writer always recommends taking the test, thereby avoiding the potential for long term license suspension.

What test?

There are usually two tests available.  The standard breath test consists of a suspect blowing into a testing device.  Alternatively, one may submit to a blood test which consists of a simple blood draw.

Hands down, this writer recommends the breath test.  Breath testing requires conversion of a breath sample to derive a blood alcohol percentage.  The conversion factor is known as a partition ratio, and issues surrounding such ratios give rise to successful attacks on the reliability of breath test results.  Partition ratios vary widely in the general population and within individuals.  Moreover, patrition ratios in the general population are higher than the standard used in breath test machines, giving suspects taking such tests a potential benefit.

There are other reasons breath test machines lend themselves to an attack on the reliability of their results.  Machines often do not function properly.  Breath testing machines have a margin of error of 0.02%.  Further, breath test results in some machines are truncated.  The third decimal in the result is not included.  Thus, a test result of .099% will read out .09%, giving a suspect an added benefit.  In some situations a suspect may be able to avoid providing enough deep breath to register all of the alcohol present in his system.  Finally, the breath test machine scale in some machines is set .003% below the start line giving the suspect a further added benefit.

Should you or a loved one have the misfortune of a DUI arrest and/or be faced with other issues concerning your driving privilege contact San Jose DUI Lawyer Bernard P. Bray.

Call Now: (408) 292-9700

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