Thursday, April 21, 2005


Today in the Albuquerque Journal we see that the City of Albuquerque intends to give its police the power to take the automobiles of persons arrested for DWI first offense. There are alternatives which may be used, the boot for 30 days, etc. Due process is covered by provision for an administrative hearing after the fact.

The administrative and police authority conferred by the City is based on a lack of trust in the judiciary. It seems that the City has lost confidence that DWI cases filed as criminal cases in Metropolitan Court will result in justice being done in this class of traffic offenses. Is there another explanation for immediate loss of use of an automobile, based upon an accusation of a police officer, without probable cause (if not guilt) being determined by a neutral, independent magistrate?

The City could consider establishing its own Municipal Court, and run the traffic offenses through that Court, or run the DWI cases through that Court. Have the City Council appoint the Municipal Judge, and have the Judge subject to a retention election every two years. There was a time when a person accused of DWI got a jury trial (six-person); now the City wants to eliminate the trial altogether, and replace it with an administrative hearing (or peremptory action by a police officer). What is the reason for this trend? It is especially disturbing in the criminal law, because it indicates that the government has lost confidence in its own criminal justice system. Mandatory sentences are commonplace; why? Because the legislatures have lost confidence in the judiciary to do the right thing. The legislatures (including the City Council) believe that they, or the prosecutor, can be trusted to enforce the law, but the judiciary cannot.

The principal problem with the law relating to DWI is nullification. We have been so frustrated that we increase the penalties (or make them mandatory, which in fact is an increase if it is carried out); and the result is a reluctance on the part of those charged with arrest, prosecution, conviction of guilty, and reasonable punishment of guilty convicts, to do their jobs. Nullification.

One answer is to increase the liklihood of detection, apprehension, prosecution and conviction of dangerous drivers. This can be done with radar video and computers programmed to detect (by driving pattern) the dangerous driver. This should be handled by our police officers, not outside sources; and the surveillance should be on the internet, so that the citizens can monitor the surveillance. The identity of lawful drivers and their vehicles need not be disclosed. This loss of privacy is worth the cost, and can be more palatable than the loss of privacy in some present methods of law enforcement, for example, the road block or surveillance by officers in cherry pickers.

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