When someone is stopped by the police for erratic driving, the officer may suspect that a little nipping was involved. Official procedure at this point varies from state to state, but in many states the driver is asked to blow into a breath analyzer, or "breathalyzer," as part of a "field sobriety test." In my state a refusal to submit to the breathalyzer results in an immediate six-month suspension of the driver's license. This doesn't, of course, prevent the driver from being arrested for "drivng under the influence" (DUI) or the more serious "driving while intoxicated" (DWI).

Over my years of studying the behavior of drunken sheriffs, police officers, judges and politicians, I've noted that they almost always refuse the breathalyzer test, opting instead for the license suspension.

Refusing the breath test will later come as a great relief to the defense attorney, who can then argue that at the time of his arrest Judge Branchwater had just been put on a new medication having severe and unforeseen side effects. On the other hand, if Judge Branchwater had taken the test and failed, the defense's only arguments would have to come down to whether the machine was accurate or whether the test had been properly administered.

When accosted by a patrolman, the authorities know what to do from their experiences in court or their background in the law. But your average Joe Blow doesn't, so he foolishly yields to the officer's suggestion to breathe into the breathalyzer.

A case in point

Nevertheless—and despite his advantages—Judge Peter Tourison found himself last March in a New Jersey police station waiting to take a breath test. Here's what happened—

Tourison tried to apply Chapstick to his lips, which delayed the Alcotest because nothing can be in or around a driver's mouth for 20 minutes before the test. When the police took away the Chapstick, Tourison used another tube before it, too, was confiscated.

Then, when a patrolman turned his back, Tourison popped a penny in his mouth.

It's an old trick, and it's one Tourison ... should know. A penny won't affect the machine, but any object in a person's mouth may show that the officer did not perform a proper oral inspection.

Further, Tourison didn't blow properly into the Alcotest machine, so it took seven tries before a confirmed reading could be obtained.

I must confess I was unfamiliar with any of these techniques.

Well, it did the judge no good—or at least not enough—because he still blew a .08 after all that delay. He pled guilty to the DWI charge and then had to go before the state's Advisory Committee on Judicial Conduct for being a lawbreaker and a reprobate and for making the other justices look bad.

His attorney argued that he should receive a reprimand, since that is what New Jersey judges of similar quality had received. But the committee members were incensed by Tourison's antics at the police station.

His attorney responded that—

they were just "stupid things" people do when they are drunk. "I don't see the penny as an aggravating factor," he said. "Look at the 1990 case of Justice [Robert] Clifford, charged with DWI, who refused the Breathalyzer test. His refusal was never considered an aggravating factor by the Supreme Court."

But the Vice Chairman of the committee drew the proper distinction, saying that "refusing a test and 'attempting to fix' a test were two different things."

Before you get on the road

So if you are unwise enough to be caught drinking and driving this holiday season, take these tips from the pros—

• Take care to address the lady or gentleman as "officer." "Ossifer" is not a word.
• Don't ask what it was you were doing. The idea is that you're supposed to know.
• Bring along some gum or mints—or better, a ham sandwich. Exlax, for those who dare, can reveal the fragile state of your health as well as encourage the police to maintain a more hands-off approach.
• Whatever you do, don't exhale—especially into a machine.

Tags: news and politics drunk driving humor

This Year's Most Fashionable Holiday Party Accessories Are Black People —The Gawker

The Gawker seems to be a vaguely liberal, New York–chic online gossip tabloid that Simply Appalling is determined not to become—even if there were money involved. But their headline caught my eye because I don't doubt the truth of it.

As befits a gossip sheet, the evidence for the headline's assertion is skimpy. Hamilton Nolan writes—

Now that Obama has been elected, a tipster inside a PR firm tells us, clients are demanding "an increased number of African Americans added to the guest list" at their holiday parties. In the spirit of hope! The email can't really be "verified," but appears genuine and is just too important not to share. This firm has even assembled an official internal "Diversified Holiday Guest List," in which they rank the top 10 acceptable black socialite attendees, in order of desirability.

Now if they put them up for auction I'll begin to worry.

Tags: news and politics racism lifestyles ethnic diversity

When celebrity lawyer Marc Dreier was arrested in Canada, the press was left wondering what the charges were. A Toronto police spokesman cleared it up—

Basically what they are is that he impersonated himself as someone else and not himself.

Self-impersonation is not a crime—yet. But I worry about that. What is a person with multiple personalities to do, we wonder?

In any event, Dreier showed up at a meeting of the Ontario Teachers Pension Plan claiming to be someone else. Then the real person showed up. No word yet on the gender of the impersonated, but I'm hoping wigs were involved.

Leaping from the frying pan into the cookie jar, there are now allegations that millions are missing from the escrow accounts of Dreier LLP—the accounts that lawyers hold in trust on behalf of someone else.

Dreier is the sole owner of a firm employing some 250 lawyers. He explained this unusual arrangement last year: "This is a system for lawyers who believe democracy is overrated -- or at least that it is in business. Under this alternative model, all policy decisions ultimately reside with the single equity partner." The prosecution may remind him of that in court, and the lawyers cleaning out their desks may be pondering the disadvantages of the "alternative model."

It's going to be a sad Christmas in lawyerville. Above the Law reports that "The firm may not be able to make its next payroll, on December 15. There is only $300,000 in the payroll account, and the next payroll is for $2.6 million."

The annual Christmas party at the Waldorf has been canceled.

Follow-up post
Prison Procedure of the Day: Determining gang status (12/16/08)

Tags: news and politics criminal law attorneys

Get more out of what you're into — Cox
—as heard on TV by Yours Truly

Advertiser's dollars spent for TV ads are usually wasted on me. For one thing, I generally avoid the commercial channels. And for another, if I do happen to be watching a commercial channel I'll flip to fly-fishing or painting-by-the-numbers before I'll watch the commercial.

But occasionally the mind wanders and a commercial will slip in, its attack confined to the subliminal. It was on just such an occasion that I was snapped from my reverie by this commercial for Cox Communications.

I don't know what it was about the ad that caught my attention. Was it the clever tension, the push-pull set up by the prepositions "out of" and "into"? Was it the almost perfect iambic tetrameter—duh-dah duh-duh-dah duh-dah duh-dah?

In the end I can't really say. But the phrase keeps turning in my head, and I fear it will be sometime before I can get it out. So for penetrating my barriers to advertising I thought were nearly impregnable, cheers to the ad agency for a job well done—and here's to Cox!

Tags: news and politics marketing advertising humor