Jury Duty

Today (9/14), I was on jury duty; for the first time, I was a member of a jury. Not a full twelve-person jury, but a six-person jury assigned to hear a DUI case. Not exactly cutting edge jurisprudence, but interesting nonetheless.

The facts: The defendant was stopped by a sheriff's deputy at 2:20 AM sometime last May because the sheriff had seen (he said "observed") that the defendant was driving with no lights. The sheriff noticed a smell of alcohol (he said "intoxicants") in the car, and he asked the defendant to stop out of the car. The defendant agreed to take some field sobriety tests--the eye test, the walk-the-line test, the standing on one foot test. The deputy claimed to have seen enough "cues" to indicate probable driving under the influence, so he arrested the defendant. Implied consent allows the state to take a blood sample for analysis; the deputy called another deputy to come and do the blood draw. Subsequent testing yielded a blood alcohol content (BAC) of .127%. The legal limit defining automatic DUI is .08%, so the defendant was half again over that limit.

The defendant was charged with two DUIs! How? In Arizona law the fundamental constitutional protection against double jeopardy apparently doesn't apply, so you can be charged with DUI with "the slightest impairment" at the same time as you are charged with DUI at or over the .08% limit. This double charging has significant legal consequences because for a single DUI, you get between 1 and 10 days of jail, lots of fines, suspension of driving, plus possible other restrictions while you are on probation. But for two DUIs, you get between 30 and 90 days of jail time and lots more of the fines and other penalties. Obviously, if you're in jail for at least 30 days, your job is gone and you may be reduced to penury. And of course you've got a criminal record that will pursue you for life. Perhaps that is an appropriate situation for a repeat offender, but how can that possibly be appropriate for a first time offense? Not only that, but the law allows a jury to presume impairment if the defendant's blood is drawn within two hours of arrest and subsequently tests at or over the .08% limit. Thus you can be presumed guilty of DUI with "the slightest impairment." I find this outrageous. The burden on the state is to prove guilt beyond a reasonable doubt. Arizona has evaded that requirement by allowing juries to presume guilt--even though juries are explicitly instructed to base their decision solely upon the evidence presented in court! Allowing juries to presume without evidence is an affront to constitutional protections against arbitrary government and an egregious example of the tyranny of prosecutors that Paul Craig Roberts and others have voluminously documented.

In addition to this affront to justice, the arresting deputy admitted under cross examination that at no time did the defendant exhibit any impairment--slurred speech, wobbly stance, inability to respond to questioning, etc. The defendant has just left a Jack-in-the-Box drive-thru in which he had turned off his lights as a courtesy to others in line ahead of him. He had pulled out into a well-lit street and had driven less than half a block before he was pulled over. This was the evidence of "impairment" that the prosecutor harped on almost to the point of absurdity.

During deliberations, two members of the jury were initially inclined to convict on both counts. I quickly spoke up and stated my position: the second charge--DUI over .08%--was incontestable and had not even been seriously challenged by the defense. The defendant claimed to have drunk only two beers, one at 8 PM and the other at 10 PM. Oh, please! It is physically impossible for the defendant (a 175 pound male) to have a .127% BAC with just two beers consumed at once much less over a period of hours. C'mon, we're not stupid. However, as to impairment, I insisted that no such evidence of impairment had been presented in court; indeed the evidence was the opposite. As to driving without headlights, the prosecutor had the unfortunate luck to have chosen a jury in which at least half of the members (me included) had driven without headlights in similar circumstances; nobody bought the prosecutor's argument.

In the end, we agreed to acquit on the impairment charge and convict on the legal limit charge. I felt sorry for the defendant. He's a 30-year-old bank manager who wants to become a professional soccer player. All that may be in jeopardy because of one mistake. However, I did my duty as a juror to apply the law impartially and to decide based solely on the evidence presented in court.

I wonder why this case ever came to trial in the first place. Surely, the prosecution and the defense could have negotiated an appropriate plea bargain. Nobody was hurt; there was no accident. Yes, .127% BAC is dangerously high. But in what world could justice be served by wrecking this man's life and career? Maybe the most important lesson I learned is that genuine, proportionate justice is not the goal of the state or its prosecutors. I've read a lot over the years about this perversion of justice in our law. It's quite sobering to see it in person.