Month: September 2015

In every case, the government has the burden to prove their case beyond a reasonable doubt. “Beyond a reasonable doubt” is a highly debated standard. However, everyone is in firm agreement that the government must have significant evidence that the defendant committed the alleged crime in order to prevail at trial.

When the government charges an individual with driving under the influence (DUI), they need to have evidence to support the charge. Usually, the government’s evidence for DUI cases include the results of various tests that officers administer when they suspect a driver of driving under the influence. The major tests include:

  • Field Sobriety Test (FST): At the scene, the officer submits the driver to tests intended to show balance, eye movements, and cognitive abilities. If the driver fails the FST, the officer will usually administer one of the scientific tests, discussed below.
  • Blood Test: Blood tests are often considered the most accurate test, because blood tests literally determine the percentage of alcohol in the blood, or Blood Alcohol Content (BAC), from the individual. A blood test shows alcohol or drugs in the driver’s system at the time of the test.
  • Urine Test: Urine tests are usually seen as the least accurate test because the test results are dependent on when and how often the individual empties his or her bladder.
  • Breath Test: Breath tests determine how much alcohol is in the portion of the breath exhaled into the device. Officers usually administer breath tests on the scene, and the results often contribute to the officer’s decision to arrest the driver for a DUI.

Of all of these tests, the government most frequently relies on breath tests when prosecuting DUI cases. In Washington, D.C., the police use Intoximeters to conduct these breath tests. However, the Washington Post recently reported that only one of the police department’s eight Intoximeters has been in use this summer.

The Intoximeters are required to be regularly calibrated in order to ensure accuracy. The results of the breath test are not supposed to be allowed into evidence unless the police department can ensure that the Intoximeter was properly calibrated.

Apparently, the only employee at the police department who knew how to calibrate the Intoximeters quit early this summer. Because no one else in the entire department knew how to calibrate the breath machines, the police could not use the other seven Intoximeters. There was literally only one Intoximeter in use in the entire District of Columbia throughout summer.

The spokesperson for the Office of the Attorney General who prosecutes DUI cases, called the impact “minimal.” As you can image, the numbers do not support that assertion.

In reality, police arrested far less people on suspicion of DUI this summer – specifically, 179 people compared to 249 people last summer. This is a 28.11% decrease in DUI arrests. It is possible that this decrease was intentional in order to avoid the chaos that occurred in 2011, when a similar equipment deficiency cost the city over $300,000 in civil settlements to individuals convicted using faulty equipment.

According to the Post, the police labor union leaders said the deficiency this summer has led to an increase in Operating While Impaired (OWI) charges, which is the easiest “drunk driving” offense to prove and carries the lightest penalties. The OWI charge carries the lightest penalties of a maximum sentence of 90 days and only requires the government to prove that the individual’s ability to operate a vehicle was noticeably impaired.

As far as the Intoximeters, the Office of the Chief Medical Examiner said that they have finally hired an employee to replace the one employee who knew how to calibrate the machines. Further, they claim that they are training multiple employees on how to calibrate the machines so that this kind of embarrassment does not happen in the future.

Making the life-changing decision to marry another person is a long and difficult process. You first have to participate in the dating scene, which often involves sifting through a lot of lemons before you find someone with whom you are even remotely compatible. If you are lucky, you may finally find a person with whom you actually enjoy spending your time and is in your similar stage of life. You then have to determine if this person is the one person out of the seven billion people on earth with whom you want to spend all of your time – for the rest of your life. As if all of this is not hard enough, the other person has to agree…to everything.

It actually happens. The two of you have decided to make the ultimate commitment. You are ready for your wedding, and you go to check off the last thing on your list: the marriage license.

Then, you meet Kim Davis – and everything comes crashing to a halt. At least, that is what happened for two heterosexual couples and two homosexual couples in Rowan County, Kentucky this past summer.

Kim Davis had the power to ruin the “big day” for these four couples because she is the county clerk for Rowan County, Kentucky. In Kentucky, the county clerk handles the clerical duties of the court, which include issuing licenses for hunting, fishing, and marriages. For marriage licenses, her office issues and signs the license for all legally qualified applicants.

Here, when eligible applicants went to the clerk’s office in Rowan County to obtain their marriage license, Davis simply refused to do the job that she was elected – and paid by taxpayers – to perform. Davis unilaterally decided that she would not issue any marriage licenses at all.

In denying these marriage licenses, Kim Davis was making her feeble protest against the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). In Obergefell, the Supreme Court found that all adult couples, regardless of their sexual orientation, have a fundamental right to marriage guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Davis was also, in effect, protesting Kentucky Governor Steven Beshear’s post-Obergefell directive ordering Kentucky county clerks to issue marriage licenses to all qualified couples in conformity with the Supreme Court’s decision. In the directive, Governor Beshear acknowledged: “Neither your oath nor the Supreme Court dictates what you must believe. But as elected officials, they do prescribe how we must act.” Unfortunately, Davis chose to defy both the highest Court in the land and the direct orders from the chief executive of her state.

The couples that were denied licenses sued Davis in federal court and, not surprisingly, won. Judge David L. Bunning, a United States federal judge for the Eastern District of Kentucky, found in favor of the couples’ request for a preliminary injunction. Judge Bunning held that the plaintiffs’ fundamental right to marry outweighed Davis’ meritless claims under the First Amendment and Kentucky’s version of the Religious Freedom Restoration Act. Judge Bunning astutely pointed out that:

“Our form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions. Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that does not excuse her from complying with it. To hold otherwise would set a dangerous precedent.”

Judge Bunning granted the couples’ request to preliminarily enjoin Kim Davis, in her capacity as Rowan County Clerk, from applying her “no marriage licenses” policy to future marriage requests.

Davis’s request to stay the ruling pending appeal was denied by the District Court of the Eastern District of Kentucky and the Sixth Circuit Court of Appeals. Both courts determined that Davis’s appeal was meritless. Davis’s appeal to the United States Supreme Court was also denied in a one-line unsigned order.

The day after the Supreme Court denied Davis’s request for a stay, the couples went back to the Rowan County Clerk’s Office to obtain their marriage licenses. However, despite every judge finding against her, Kim Davis still refused to issue the licenses. Davis said that she was acting “under God’s authority.”

In response, Judge Bunning ordered Kim Davis into custody and held her in indirect civil contempt for her failure to comply with his Order. Davis was released on September 8, 2015 after Davis’s deputy clerks issued the plaintiffs marriage licenses. As a condition of release, Judge Bunning ordered Davis not to interfere in any way with eligible couples receiving marriage licenses from the Rowan County Clerk’s Office.

Kim Davis returned to her post as County Clerk on Monday, September 14. If she chooses again not to comply with the court’s order, Judge Bunning has the power to charge her with civil contempt again. Alternatively, criminal contempt proceedings could be initiated against Davis for her failure to comply with the Court’s order.

But, here is the problem with all of this: you shouldn’t need an order from a federal court – or the United States Supreme Court – to do your job. Kim Davis’s job description requires that she issue marriage licenses to all eligible couples, and the law states that same-sex couples are eligible. This should not be a civil law or criminal law issue – this should be an employment issue. Plain and simple: Kim Davis should no longer be the County Clerk for Rowan County because she is unwilling to do her job as required by law.

Unfortunately, Kim Davis cannot be fired. As an elected Kentucky county clerk, Davis can only be removed from her position if the Kentucky General Assembly impeaches her or if she resigns. Even Governor Beshear cannot unilaterally fire Davis. Regrettably for the people of Rowan County, the General Assembly does not meet again until January 2016, and Kim Davis has no interest in resigning. Therefore, the citizens of Rowan County will have to watch their hard-earned tax money pay the salary of their ineffective County Clerk for at least another four months.

While Kim Davis’s story highlights unfortunate and embarrassing social, prejudicial, and discriminatory opinions of some of the American populace, it also emphasizes problems in our governmental structure. Just like anyone else, elected officials should be fired if they cannot do their job and uphold the constitution of the United States. It should not require an order from the Supreme Court of the United States to force government employees to do their jobs. Similarly, it should not take a federal case for a couple to obtain a marriage license from their county – planning a wedding is hard enough.

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