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Salt Lake City Criminal Attorney | “Does this outfit make me look fat?”: Infringing the 5th Amendment

As a Salt Lake City Criminal Attorney, you can imagine, I have a pervasive obsession with protecting the general public’s Constitutional rights.  I do not “defend guilty people” as some would suggest.  I protect the Constitution.  And in light of that pursuit, I thought that I should tell you all about a recent trend I’ve noticed with local prosecutors.

Lately, local prosecutors at preliminary proceedings such as pretrial conferences, have been asking defendants, and their attorneys, whether the offense they are charged with is their first offense.  The reason that prosecutors want to know is that prior offenses have a big impact on sentencing.  With certain crimes, Utah DUIs for example, subsequent offenses trigger higher minimum sentencing requirements.

Now, you should bear in mind that finding out whether a defendant has a prior conviction is usually as simple as looking at the criminal background check, which is, as a rule, printed out for the prosecutor’s file.  But with some cases, I’ve seen prosecutors literally just fail to look at the report.  It’s sitting right there in the file, it takes thirty seconds to check, but they just.don’t.bother.

It is my position that in a preliminary proceeding, neither a defense attorney, nor a defendant should respond to a question about their prior convictions.

For a defense attorney, I believe that answering this question would be unethical due to the attorney/client privilege.  Where the attorney has knowledge of a client’s prior convictions that the prosecution is unaware of, the attorney’s disclosure of that information would be against the interests of the client, and thus a violation of the Utah criminal lawyer’s code of professional responsibility.  If you think that sounds crazy, I will tell you that I am not alone.  In Utah Ethics Opinion 05-02, the ethics committee of the Utah State Bar considered what an attorney should do in this position, and stated that it would be an infringement of the attorney/client privilege for the attorney to answer the question.  You might be thinking that this is one of those “technicalities” that you’ve heard about on NYPD Blue.  The “technicalities” that lawyers like me use to get “get guilty people off”.

It is not a technicality, it is a cornerstone of your Fifth Amendment right to remain silent, and of the burden that the State has to prove its case against you.

In fact, it is the prosecution’s duty to produce evidence to substantiate the charges against you, and prior convictions are no exception.  If a defendant does not admit to having prior convictions, the state must actually go through and PROVE that there are prior convictions in the same way that it must prove the defendant was at the scene of the crime, or any other element necessary to secure a conviction.

What the prosecution is doing by asking the defendant and their lawyer, on the record during the proceeding, is to get out of doing the work that the Constitution mandates they perform.  And god forbid that an attorney answers this question, or allows his client to answer it when he can simply invoke his 5th Amendment right to remain silent.

Now, if it were as simple as invoking the 5th amendment when such a question is asked, then I would not be so upset about this recent trend.  However, it gets sticky whenever the question is even asked.  Imagine that you are in court, waiting to plead guilty or no contest to a DUI pursuant to a plea agreement with the prosecutor; If this is your first DUI, and the prosecutor or the court asks you whether you have any prior DUIs then you have nothing to worry about.  You and your lawyer simply say “no”.  Right??? Er……well Imagine that you DO have a prior DUI, and that the prosecutor has failed to properly perform his or her job and has not discovered this prior DUI, but instead has decided that they will just ask you if you have a prior conviction in the hopes that you’ll be honest.  Well, now it’s not so simple.  Now you don’t want to tell the truth because it will mean a significant increase in penalties.  And you don’t have to tell the truth because of the 5th amendment right you have against self-incrimination.  However, you also cannot LIE, and neither can your attorney.

So you wont say that you have prior offenses, and you can’t say that you don’t.  What do you say?  You have to say something like “I refuse to answer that question on the grounds that it may incriminate me.”  Ah, but that is no good, because it’s very suspicious.   Now the court and the prosecutor are on notice, and they’re going to go and do what they should have done in the first place, and look at your record to see if there’s anything there.  At that point you may as well just tell them about your prior conviction.

For that reason it is my opinion that it is improper for the court or the prosecutor to even ask the question.  It is the legal equivalent to asking your spouse, “does this outfit make me look fat?” – you can’t tell the truth, and yet you can’t lie…no one comes out happy.

However, improper as it may be, the courts and prosecutors that are starting to do this don’t seem to realize.  They apparently have not read ethics opinion 05-02, and they don’t seem to care about attorney/client confidentiality.   And that is why I have a simple solution to this problem.  We as Salt Lake City criminal attorneys, and you as defendants and citizens with Constitutional rights to protect, must always refuse to answer this question on the basis of the 5th Amendment.  That way, it will no longer appear suspicious when the defendant refuses to answer the question, and if the prosecutor is concerned they will be forced to do the work to find evidence that proves that the defendant has prior convictions – as they are supposed to anyways.

I’d be remiss if I didn’t mention UHP Trooper Lisa Steed this week…

This is a pretty big deal.

31 cases they’re looking at?!?!?!  That’s probably like an entire Friday night shift of DUIs for Lisa Steed!

It is true that Utah Highway Patrol Trooper Lisa Steed was anointed “Trooper of the Year”. It is also true that trooper Lisa Steed has been repeatedly criticized for her unjust tactics. Utah Highway Patrol Trooper Lisa Steed’s antics have been discussed here, and in numerous other places.

If you don’t trust the media, you can see for yourself here:

The wrong is so palpable that I don’t even feel I have to say anything about it. It’s one of those stories where anyone who reads these articles will sense the injustice. It’s like the “Harman’s cat” of Utah DUI law.

In fact, this is so bad that I actually feel compelled to defend police officers for a change.  Being a DUI and Criminal Defense Attorney in Salt Lake City, I talk a lot of crap about police officers.  But I don’t mistrust cops in general.  There truly are a lot of good cops out there who follow the law and protect our rights while keeping the streets safe for our families.  Hats of to them.  It’s the ones like Lisa Steed that made me want to be a DUI and criminal defense attorney.

The bad seeds are the exception, not the rule.  But then again, Lisa Steed isn’t the only bad seed out there.

Is it still cross dressing if you’re doing it on Halloween?

As yesterday’s Halloween festivities took place, Copper Canyon Elementary in our very own Jordan School District wanted to keep things safe at school so that all the little boys and girls could have a fun costume party day. So, the principal at Copper Canyon sent home a letter to parents last week, just to remind them of the school district’s costume policy. The memo gave an overview of the usual safety restrictions, designed to prevent kids from doing anything dangerous. For example, the school’s principal reminded parents that kids are not supposed to cross-dress for Halloween…you know, cuz someone could really get hurt if a 5th grader showed up as Lady Gaga.

OMG dude…

I love this state, it’s the people in the state that drive me crazy.  I mean look, obviously this has to do with a very specific religious/moral concern.  Now, I don’t really see what’s so bad about an elementary school kid “cross dressing” for Halloween.  In fact, I don’t even think it’s “cross dressing” if it’s done on Halloween, that’s just “dressing up”, isn’t it?  And in defense of “the Mormons”, I honestly doubt that many of them would worry too much about it either…it’s just that lunatic fringe few that give Utah a bad name.  But if it shakes your soul to the core to know that your little boy might be skipping to school singing “I kissed a girl, and I liked it” with a pink wig on, then by all means…ground him for his moral trespasses.  Anyway…and this is so obvious that I’m debating whether to waste the time and energy to type it out…but, you can do what you want with your own kid, don’t tell me what to do with mine.

I’m pretty sure (although, who really knows these days…) it is unconstitutional for Jordan School District to enforce such a policy…at least on Halloween, if not in general.  Which might be why the School District started back pedaling like Nelson Cruz chasing a fly ball when some eminently reasonable parents called BS on Copper Canyon’s memo.  A district official said that it was all due to a big “misunderstanding”.

Yeah, whatever.

Anyway, I heard a rumor that the school came to its senses and told the kids they could in fact dress like a drag queen if they so desired.  I like to imagine a very angry phone call from the District Superintendent to the Principal telling her she was going to lose her job if she didn’t get right and quit robbing her kids of basic civil freedoms, but I doubt that’s how it really went down.

Henry James is free, next time you’re on a jury, REALLY ask yourself what ‘reasonable doubt’ means.

Reading about Henry James this weekend reminds me of a thought that I’ve been having for a long time.  The thought is this: if I’m sitting on the jury, and there is not a single eyewitness to the crime, I am already most of the way to having more than a featherweight of doubt that they have the right person.  That is:

Having no eyewitnesses is tantamount to reasonable doubt

This would, of course, be unacceptable to any prosecutor, or the general public.  After all, sometimes there are simply no witnesses to a crime…and if we can’t convict someone for every heinous crime committed, the world would expand far beyond what our small minds are able to comprehend.

But just hear me out anyways.

I have two reasons that no eyewitness = reasonable doubt.

The first reason is practical, a great many false convictions are made where there were no eyewitnesses to the crime, so if we stop prosecuting people where there aren’t eyewitnesses, the rate of false convictions will drop…plummet actually.

Now, maybe we don’t have to go as far as requiring an eyewitness to the crime itself.  But there has got to be some witness at least putting the defendant at the scene.  Also, I use the term “eyewitness” broadly…for instance if a phone record, or something similar, places the defendant at the scene of the crime, at the critical time, I would say that is a suitable substitute for a human being witnessing the defendant.  The point is, its not right for police to just be bringing suspects in for a lineup, when they have three people telling them that the suspect was with them at the time of the crime, and no witnesses telling them that they saw him commit the crime – or even that he was in the vicinity of the crime scene.  That kind of chicanery leads to false convictions…

The Innocence Project has exonerated nearly 300 wrongfully convicted individuals throughout its existence, and a good many of them…I don’t know the exact numbers, but it’s like half…were convicted without eyewitness testimony. (BTW, I interned with the Innocence Project during law school, and I’m proud of their work).  It is my personal belief, though I may be alone, that it is far worse to convict an innocent person of a capital offense and cause them to spend multiple decades behind bars until finally, when the state miraculously “finds” the “lost” evidence and tests it, they get to go back home, than it is to let a guilty person go free for lack of evidence (I’m too lazy to fix that run-on sentence, so I’ll just acknowledge that it’s a run-on in this parenthetical and move on).  The point is, sometimes you just gotta let those hard to reach Pringles go.  Yeah, I know, its terrible to think that a rapist has gone free – but it’s also terrible to rob someone of the middle thirty years of their lives so that we can sleep at night under the false impression that our streets are safe.

The other reason that no eyewitnesses = reasonable doubt is philosophical, and it depends on my definition of reasonable doubt.  For me, reasonable doubt means that if there is some alternative course of events that is not ruled out by the evidence, then, there is reasonable doubt.  By way of example, if a witness says that the defendant pointed a gun at the victim’s head and shot him – there is no rational alternative explanation for the victim’s death.  On the other hand, if a witness says he heard a shot, and then saw the defendant and another man run out of a door and down a hallway there are a multitude of rational alternative explanations as to what actually occurred.

If all the evidence, being weighed together, leaves open some rational alternative explanation as to what actually happened, then there is reasonable doubt concerning the prosecutor’s version of the events.  And where there are no eyewitnesses to any critical part of the crime, then there are clearly alternative rational explanations due simply to the reality that some other person could have occupied the physical space at the crime scene and taken the action of which the defendant is accused.  Thus, if there is no eyewitness to the crime, then there must be reasonable doubt.

Admittedly, being a criminal defense lawyer, my definition of reasonable doubt is somewhat left of the average.  I suppose that’s why we have juries though, right?  Each jury member should weigh the evidence against his own understanding of reasonable doubt.  Some jurors will see things my way; others will see things the way that Henry James’ prosecutors saw them.  But if I’m the attorney, I want the jury grappling with their own definition.  I want them to consider what it means to have reasonable doubt.  Otherwise, the trial becomes a game of Clue and justice suffers.

A disclaimer: I am in no way suggesting that where there is eyewitness testimony, then there can be no reasonable doubt.  Even aside from possible ulterior motives of witnesses there is plenty of scientific evidence concluding that eyewitness testimony is unreliable.  But that is another discussion.  What I am saying is simply that eyewitness testimony (in some form, defined broadly) is a pre-condition to conviction ‘beyond a reasonable doubt’.

Dear Washington, I don’t care what you say on I-1183, I just don’t want you to be misled.

If you haven’t heard (and unless you’re in the north west, you probably haven’t) there is a bitter liquor law controversy in Washington.  Special interest groups have spent record campaign money over I-1183 which would privatize the state’s liquor stores.   What it comes down to is business, as always.  Grocery stores, and Costco in particular want to be able to sell hard liquor, but beer wholesalers aren’t super excited about the competition from liquor on store shelves.

I don’t live in Washington, so I don’t have any skin in the game (although there have been similar attempts to privatize in Utah).  What interests me about Washington’s I-1183 controversy, from a DUI and criminal law standpoint, are the tactics these ‘No on I-1183’ campaigns are using.  Specifically, they’re claiming that the initiative would allow gas stations, convenience stores, and mini marts to sell hard liquor.  The ‘No’ campaigns claim that this would be a horrible travesty of public safety, and they seem to be having some success convincing the general public.

The claim that it would allow convenience stores to sell liquor is itself debatable, but that’s another story.  What I’m interested in is the assumption that it creates a public danger.

I see an underlying hypocrisy in the general public’s stance on DUI laws.  An underlying hypocrisy that I think is sub-conscious, and I want to bring it to the forefront of everyone’s attention so that our “community” can eradicate it.

We all agree that driving under the influence is dangerous to the public.  And we all agree that if someone chooses to drink and drive, they are ultimately to blame for their own actions.  Thus, DUI is a crime – you combine the guilty act of driving under the influence with a guilty mind, which consists of an individual who knowingly and intentionally gets behind the wheel after having too much to drink.  “Know your Limits”, “Drink Responsibly”, “Friends don’t let friends…” you get the idea.

Everyone’s with me here, I’m sure.  Nothing groundbreaking, nothing scandalous.  In fact, I think we should all take just a moment, before reading on, to relish in this rare moment of solidarity.  It is not often in the age of the Tea Party, Occupy Wall Street, Sarah Palin, Jon Stewart, Bill O’Reilly, Obamacare and the tears of John Boehner that we can all agree on something.

Moving on, then.

The assumption underlying DUI laws (as with any criminal law) is that a person is responsible for his own actions.  If he chooses to have another Margarita with his fish tacos at dinner, he had better not drive home, and if he does…he cannot blame his actions on the waiter who talked him into it, or the billboard that made him think he would be cooler if he drank just a little more Cuervo.  This man is an evil, horrible, reprehensible, irresponsible, spawn of chaotic terror who is putting your children’s lives at risk, and society has agreed (depending on the jurisdiction) to fine him $1500, make him spend a day in jail, take away his drivers license, and force him to get a lawyer.

And as a DUI lawyer I say, “fine”.  After all, we all agree, even the DUI attorneys, that driving under the influence is dangerous.

Here’s where it gets dicey.  Groups like Protect our Communities and campaigns like ‘No on I-1183’ in Washington are concerned for the safety of our families (or are owners of beer wholesalers that don’t want competition from liquor in grocery stores, depending on how you look at it).  They say that if someone can buy hard liquor at a convenience store, then they’re going to, I guess, stop in on the way home from work and buy a bottle of vodka for the road.  I am literally disgusted by this misleading play on our worry for the safety of our children and families. They’re taking advantage of us.

There is some severe cognitive defect (well, I’ll say ‘misconception’, that’s less offensive) – there is some misconception among the general public that hard liquor will get a person more intoxicated than beer, and these campaigns are playing off of that misconception.  The truth is alcohol is alcohol.  There is no magic, extra-strength alcohol that goes into hard liquor that is different than the stuff in Bud Light.  A shot of 80 proof liquor has the same amount of alcohol as a 12 oz. can of beer.  Consequently it has the same effect on your body.

Now it is true that alcohol in liquor is more concentrated…but have you ever seen someone shotgun a 12 oz. can of Smirnoff?

I didn’t think so…

So ask yourself.  What are the chances that some moron who has nothing to live for is going to stop at a convenience store on the way home and down any significant quantity of vodka?  If he did, what are the chances that he wouldn’t have bought beer instead of vodka if the convenience store were only allowed to sell beer?  Finally, and most importantly, isn’t it true that he himself is responsible for his terribly dangerous choice to do so?  Isn’t it true that he alone should bear the responsibility to drive safely or suffer the consequences of his failure to do so?   That’s what DUI laws say…because if it weren’t his fault for choosing to drink, if he were just a victim of the terrible effects of I-1183, if he just couldn’t stop himself from downing that warm hard liquor without ice and a mixer – or even a glass – then he wouldn’t be guilty under criminal law.  The DA would have to go after the store instead, or the liquor company.

The point is that we, as a society (of questionable understanding of the distinction between the physiological effects beer and liquor) cannot have it both ways.  If we are going to blame the individual for his own decision to drive under the influence, fine, so be it.  But we cannot then turn around and say that a temptation as slight as making hard liquor available at a convenience store is going to create some irrepressible impulse in people to just get shit faced on whiskey while they’re filling their car with gas.

I mean, that’s just ridiculous.  What is the thought process supposed to look like?  Are we really afraid that something like this is going to happen: “Oh I need to stop for gas…boy I really need to get drunk too…but the gas station only sells beer, that wont get me drunk fast enough…oh wait! I forgot that new liquor law passed, now I can buy gin at the gas station, I’ll just stop and run in while my car is filling up, buy a fifth and guzzle it before I get back on the road.  I mean, really I don’t even have a choice, after all I have absolutely no individual will power or impulse control.  Thank God for that law…I would never have just stopped to buy beer at the convenience store, but now that they sell liquor I’m good to go!”

C’mon man.

The campaign also expresses worry that minors are going to be able to get their hands on liquor more easily if it’s available at convenience stores.  They spat out a statistic, something like gas stations sell alcohol to minors on 1 out of every 4 attempts.   So I suppose that the assumption goes: “well, teenagers are already getting beer whenever they want, and if this I-1183 passes they’ll be able to get liquor as well.”  But the thing is, it doesn’t really matter because, as we now know, alcohol is alcohol whether it’s in the form of beer or hard liquor.

Anyway, I’ve seen teens with hard liquor (…when I was one myself…not recently…).  They generally don’t do so well with it.  Sure there’s a few hardened Jack and Jim swiggin’, 17 year old Cheerleaders out there, but let’s face it, the lion’s share of teens tend to prefer beer anyway.

A Personal (well, not really) Portrait of Clarence Thomas

Ralph Rossum has written an opinion piece in the Orange County Register praising Justice Clarence Thomas’ conservative ways.

I don’t think I’ve ever agreed with anything Justice Thomas has said in his opinions. However, I gained great respect for him as a person during law school. He is a bit of a local hero at my old school, and I had the opportunity to hear him speak several times, and to hear the points of view of some of the people that admire him so much.

Here’s the thing, the guy is hilarious. Not in a self-absorbed, stand-up-comedian, “look at me I’m so funny” kind of way, but just because he’s such a ridiculous character. Of all the appellate and high court Judges and Justices I’ve heard speak, or talked with (which is, admittedly, not that many) Justice Thomas is by far the most down-to-Earth. He is exceedingly humble, and easy to talk to.

But he’s just so grumpy! I mean, look at this photo:

Grumpy, grumpy, grumpy! If he were one of the seven dwarfs…well, I don’t have to tell you which one he’d be.

When he speaks he will say that he has the utmost respect for his fellow Justices, whether they agree with him or not. He will say that the court is not-politicized, despite what we all believe. And he will tell you that he doesn’t pay attention to what the media says about him or the court. In short, he will tell you that he can’t stand Washington politics, and thank god, because the court is nothing like the rest of Washington.

You would expect a politician to say as much. Normally, I would chalk it all up to being part of the game, and completely disregard it. But in Justice Thomas’ case, he walks the walk. I’m forced to believe him because his behavior doesn’t make sense otherwise. If there were an award for “Supreme Court Justice most in need of professional public relations consultation” he would walk out in a land slide. I mean, there’s the whole Anita Hill thing. Then there’s the fact that he never asks questions during oral argument, never reads the amicus briefs, and never smiles when a member of the media is present (he actually has a wonderful smile and laugh, but you’d never know it). And it seems that he’s always under hot water for something, last year it was the Heritage Foundation stuff with his wife and refusing to recuse himself. Justice Thomas…I mean…it’s just like…he’s really, really bad at making friends. And for some reason I like that about him. He’s not a game player…I believe what he says. I don’t agree with him, but I trust his authenticity.

Rossum praises Justice Thomas’ approach to Constitutional interpretation (joking aside, you can tell that I really do respect him because I keep referring to him as ‘Justice Thomas’ instead of ‘Thomas’, ‘Clarence’, ‘C-Dizzle’, or ‘the one who always looks constipated and never says a word during oral arguments’). He is, if you don’t know, a super arch-Originalist. Here’s the thing: there’s more than one way to skin a cat. And getting to the bottom of what Constitutional provisions “mean” is not as easy a deciding whether the Constitution is a living document or not. So Rossum’s analogy of basing current Constitutional decisions on precedent rather than the original being like multiple coats of paint distorting a delicately crafted piece of furniture is well taken. Nevertheless, its pretty obvious that having each court reinterpret each Constitutional provision from the bottom up every time it decides a case is going to lead to some wildly diverse decisions. And if Justice Thomas is so afraid of incoherence, as he states in his concurrence in Van Orden v. Perry, well…then…his approach doesn’t seem to solve the problem in the long run.

I don’t really want the current court deciding on the Constitutional merits of abortion, or outlining the 4th Amendment. That’s not a dig on the court as much as it’s just a reflection of my nerves. There’s too much at stake with some of these decisions, and I don’t trust just nine justices. I’d rather we rely on input from the past justices as well, if for no other reason than to level out the frequent political swings of the court.

Also, Rossum doesn’t challenge the integrity of Justice Thomas’ decisions. But all of the current Justices, liberal and conservative alike, should be subject to harsh criticism on this point. Their decisions always magically fall along party lines, and it doesn’t jive with how they keep saying they are depoliticized.

I smell bullshit.

For instance, I can’t say that I know how Justice Thomas feels about religion. But I get the impression that aside from Constitutional issues, Thomas doesn’t have a problem with seeing the Ten Commandments displayed in public. Thomas would swear that he doesn’t mix his beliefs with his jurisprudence. So, never mind that it just so happens that his legal analysis is always in step with his personal convictions. (See Van Orden v. Perry, Gore, and also that whole Heritage Foundation thing…really bothers me, and again the tax thing recently.)

But if you’re gonna target Justice Thomas on that, then you’ve gotta dig all of the Justices out. I mean, lets face it, sad but true: all of us are guilty of backwards rationalization.

Bottom line: Justice Thomas deserves a lot of credit for being who he is, and for getting here from whence he came – even if you disagree with his Constitutional interpretations.

Justice doesn’t nap!

We have to come to an agreement on something people: there is form and there is substance, and what is important to the safety and function of our society is substance.  Form gives us short hand, efficient ways of executing substance.   Consequently, form is only useful as a servant to substance.  Thus, there are safeguards (e.g. the court system) that protect substance when form deviates from its intended function.  That is why when Casey Anthony attempts to argue that she should not have to serve out the rest of her probation due to a  state clerical error, she is de-friggin-nied.

Unfortunately, form has trumped substance in Utah, and the court system has failed to protect us in the recent case of State v. Prawitt, 2011 Ut App. 261.

“On July 27, 2007, at about 2:30 a.m., Officer Salvador Toscano discovered Prawitt asleep in the driver’s seat of a vehicle. The vehicle was legally parked on the side of the road, and Prawitt’s leg was hanging out the window. Toscano determined that Prawitt had actual physical control of the vehicle and was under the influence of alcohol.  Toscano then arrested Prawitt for driving under the influence.”

What are we trying to accomplish by fining and imprisoning drunk drivers?  We want to get them off the street, right?  Because they are dangerous, right?  So, assuming that driver A has had too much to drink, and has already driven some distance in an intoxicated state, that is bad.  Thankfully, driver A has yet to injure anyone, so it is a moot point – his driving  drunk is spilled milk, isn’t it?

The important question is what does the safety of our society call for at this point?  Well, we want him off the road as soon as possible!

This is, in fact, what took place in the Prawitt case…driver A realized he shouldn’t be driving, and he pulled over (“legally” no less).

Now, in living color, this incident may have been slightly more entertaining – and less ‘after school special’ than it sounds.  I’m picturing driver A, who may or may not be wearing a shirt and pants, slurring some profanity at his drunk-dialed ex-girlfriend as he pulls off the road and begins to shove a burger into his mouth – a la David Hasselhoff, YouTube sensation.  He then passes out with one leg hanging out the window, and the other covered in shaving cream, and hot sauce.  Why shaving cream and hot sauce?  Who knows?  I mean, the guy’s toasted…

But the point is, he’s off the road, he’s parked legally, he’s passed out, the keys aren’t in the ignition, he’s not going anywhere.  Society is safe.  Substance over form.

Nope.

This guy was nailed for DUI.  How? Well, I wasn’t there, but I suppose a jury became convinced that the guy was technically “in control” of the automobile, even though he was legally pulled over, fast asleep and with the keys out of the ignition.  Maybe I’ve been watching too much Law and Order, but aren’t the cops supposed to be worried about the criminals “getting off on a technicality” instead of the criminals worrying about getting convicted on a technicality?

And now, a message has been sent.  Every drinking driver who reads this news story, and every friend of a friend of driver A – who heard about how he got busted for DUI in Salt Lake City while he was passed out on the side of the road – is going to remember it next time they’re driving drunk, and they’re gonna keep right on driving…they’re sure as hell not gonna pull over like we’d want them to.  I think we’re all hoping that nobody gets hurt.

C’mon man…substance over form.