Justice in the Twilight Zone 

Having watched for a long time what loosely passes for jurisprudence in those counties over there, I am fascinated by the San Luis Obispo Superior Court appellate division’s reversal of Darryl Genis’s motion win, which had suppressed evidence on the grounds that the Pismo Beach police purposely and systematically deprived a drunk driving defendant of his right to a back-up chemical test (“Appellate court issues a rare reversal in a DUI case,” Nov. 28). The law is clear: When one is arrested for drunk driving, he must complete a chemical test of his blood or breath. Because the breath device used there has been purposefully set up to not retain a retestable sample, if the person initially selects breath, he must then be told that he has an additional right to a back-up test of blood or urine.

Police know if you did not select blood initially, you are probably not going to want to be stabbed with a needle as a back-up test; you will want a urine test. Because the police know that, they purposely do not tell you of your right to a urine test, over there and in most jurisdictions, because they really do not want drunk driving suspects to be able to contest the chemical test being used against them—drunk driving is a profitable enterprise for various agencies, and competent and aggressive defense gets in the way of their scam.

Now, you would think that if the government intentionally violates statutory law to search you and seize evidence, that would be an unreasonable search, within the meaning of the Fourth Amendment—how can it be reasonable for the cops to break the law to enforce it? The courts, however, being in bed with the other branches of government in addressing the political crime of drunk driving, have said no problem. However, the courts have provided that if there is a purposeful and systematic scheme of violating the law regarding the collection of evidence against a person, that does violate due process, which is both a state and federal constitutional doctrine.

Here, the motion judge ruled that there was a systemic program in place to violate a person’s right to a back-up test of urine. That is a fact question that cannot be overturned on appeal, absent significant burden-carrying that did not occur here. So, end of issue, right? Systematic violation of statutory protections having been shown, due process was violated, so the evidence gets suppressed, right? So held the trial court judge, and properly so.

On appeal, however, inviting a suspicion that we are operating in the Twilight Zone and that Judge Rod Serling will shortly come from the wings, the appeals court incredibly holds the “Respondent cites no case authority which would transform a statutory violation into a violation of the U.S. Constitution.”

Uh, hello! Respondent properly cited the controlling authority, In re Garinger, that announces that systematic violations of such rights would require suppression (on a due process analysis).

The courts are simply and clearly and flatly dishonest when it comes to drunk driving, which has become our era’s version of the Salem Witch Trials (with similar evidentiary support), and such judges should hang their heads in shame. And an electorate that returns such people to the bench at election time should similarly hang its head.

Genis did a great job raising and litigating this matter, and to have it reversed by a political judge, serving power and disserving liberty, is obscene.

Michael J. Kennedy is an attorney at law in Indio. Send comments to the executive editor at [email protected].