Archive for January, 2007

Does Marijuana Impair Driving?

Sunday, January 14th, 2007

It is against the law to drive while under the influence of marijuana. It has always been assumed that cannabis, like alcohol, impairs the perception, coordination, reflexes and judgment necessary for the safe operation of a motor vehicle. And, of course, there have been governmental studies addressing the question: Does marijuana impair driving?

Interestingly, however, the findings do not necessarily support popular opinion…. On the one hand, the California Department of Justice has found that marijuana undoubtedly impairs psychomotor abilities that are functionally related to driving and that driving skills may be impaired, particularly at high-dose levels or among inexperienced users. "Marijuana and Alcohol: A Driver Performance Study", California Office of Traffic Safety Project No. 087902 (Sept. 1986).

Contradicting these conclusions, however, are two federal studies. The U.S. Department of Transportation conducted research with a fully interactive simulator on the effects of alcohol and marijuana, alone and in combination, on driver-controlled behavior and performance. Although alcohol was found consistently and significantly to cause impairment, marijuana had only an occasional effect. Also, there was little evidence of interaction between alcohol and marijuana. Accidents and speeding tickets reliably increased with alcohol, but no marijuana or combined alcohol-marijuana influence was noted. "The Effects of Alcohol on Driver-Controlled Behavior in a Driving Simulator, Phase I", DOT-HS-806-414.

A more recent report entitled "Marijuana and Actual Performance", DOT-HS-808-078, noted that "THC is not a profoundly impairing drug….It apparently affects controlled information processing in a variety of laboratory tests, but not to the extent which is beyond the individual’s ability to control when he is motivated and permitted to do so in driving". The study concluded that:

An important practical objective of this study was to determine whether degrees of driving impairment can be actually predicted from either measured concentration of THC in plasma or performance measured in potential roadside "sobriety" tests of tracking ability or hand and posture stability. The results, like many reported before, indicated that none of these measures accurately predicts changes in actual performance under the influence of THC…

The researchers found that it "appears not possible to conclude anything about a driver’s impairment on the basis of his/her plasma concentrations of THC and THC-COOH determined in a single sample".

Note: "THC" stands for Delta-9-tetrahydrocannabinol, which is the intoxicating ingredient in marijuana. THC is fairly quickly converted by the body into inert metabolites, which can stay in the body for hours or even days. It is these metabolites that police blood tests in DUI arrests detect and measure. In other words, (1) marijuna may not impair driving ability at all, and (2) the blood "evidence" only measures an inactive substance which may have been there for days.


MADD: OK to Let .14% Driver Go — If He’s a Politician

Friday, January 12th, 2007

MADD has apparently developed a separate standard for politicians and police in its War on Drunk Driving:


MADD Supports OC Police in DUI Non-Arrest

Ocean City, MD.  Jan. 12  – Mothers Against Drunk Driving praised the Ocean City Police Department on Thursday for how officers handled the Oct. 29 traffic stop and non-arrest of Delaware State Rep. John C. Atkins.

MADD representatives were particularly quick to support decisions made by Pfc. Douglas A. Smith, OCPD’s toughest DUI enforcement officer, who along with trainee Natalie R. Smolko, performed the stop.

OCPD came under fire when news broke that Smith and Smolko stopped Atkins, who was allegedly driving erratically and blew a .14 in his preliminary breath test, but decided against making a DUI arrest…

After Atkins blew nearly double the .08 legal limit, officers did conclude that he was unfit to re-enter traffic. He then contacted a friend, who drove him and his wife to their Millsboro home.

Atkins was arrested hours later by Millsboro police and charged with offensive touching — a charge to which he pleaded guilty in December — after a dispute with his wife.

Many in the community believed Atkins, who flashed his legislator ID to police during the stop, received preferential treatment in being let off with a warning…

Though the breath test result has been the sticking point in raising doubts about officers’ handling of the incident, MADD Eastern Shore Victim Advocate David Elzey praised the proper use of the tool.

"He administered the (test) after he had decided not to make an arrest and he made the right call by not letting him continue driving," Elzey said. "He probably saved lives by not letting him drive home."

MADD representatives expressed absolute faith in Smith, who lost his mother-in-law to a drunken driver and who was himself struck by one in another incident…

"He’s had a couple hundred DUI arrests in a few years," Elzey said. "Doug Smith has done so much. We have faith he knows what he’s doing."

Isn’t faith a wonderful thing?  If only they had that much faith in the Constitution…


Who Cares About Drunk Drivers?

Saturday, January 6th, 2007

For many years now I’ve written and lectured extensively on drunk driving litigation –on the science of blood and breath alcohol analysis, the flaws in breathalyzers, the ineffectiveness of field sobriety testing. In recent years, however, my focus has increasingly shifted to the gradual erosion of constitutional rights in DUI cases.

So who cares about people accused of drunk driving and their constitutional rights?

You should care. The importance of what is happening in DUI law and procedures can be summarized in one word: precedent.

We are a nation of laws, more specifically, the common law inherited from the British legal system. Unlike most nations, which use some version of the French civil law where laws are found in codes, we look to the precedent of judicial decisions interpreting statutory law. When a court looks at the facts in a specific case, it applies not only statutes but decisions in appellate court cases to determine what the law is.The genius of this common law system of precedent is its flexibility; its flaw is what many call "judicial legislation".

The flaw becomes particularly noticeable when dealing with politically unpopular subjects. And few topics are as politically "incorrect" as drunk driving. Judges are, after all, politically sensitive animals who want to be reelected. Put another way, it is very easy to rule in favor of the prosecution in DUI cases — particularly when powerful pressure groups like Mothers Against Drunk Driving (annual revenues of over $51 million) are so influential in elections and in legislatures. There are few advocates for the accused or the Constitution during election campaigns.

This judicial attitude is not limited to judges with an eye on re-election. A majority of the U.S. Supreme Court has been consistent in depriving the accused in DUI cases their constitutional rights. To mention but a few examples:

Michigan v. Sitz. The Court held that sobriety roadblocks were permissible — that the admitted violation of the Fourth Amendment was "outweighed" by the government’s interest in combating drunk driving.

South Dakota v. Neville. The Fifth Amendment right against self-incrimination was held inapplicable in drunk driving cases (refusing to submit to testing).

Blanton v. North Las Vegas. Even though punishable by six months in jail, fines and diver’s license suspension, there is no Sixth Amendment right to a jury trial in a drunk driving case.

California v. Trombetta. Although police normally have to save evidence, they do not have to save breath samples in DUI cases (even though it is easy and inexpensive to do so).

So…we have seen a steady flow of appellate decisions at all levels taking away the constitutional rights of those accused of DUI. Again, so what?

Again, precedent: What happens today to a citizen accused of DUI can happen tommorrow to a person accused of any other offense. If police can set up roadblocks to check everyone for intoxication, they can set them up to search for drugs (which, incidentally, has already happened). If a citizen accused of DUI has no right to a jury of his peers, then the precedent exists to deny the right to citizens accused of any other crime.

The danger of precedent in the DUI field is not limited to judicial decisions. Legislatures are also guilty of passing unfair and unconstitutional — but politically popular — laws. We have certainly seen a seemingly unending series of unfair and unconstitutional statutes across the country in recent years: immediate license suspensions at the police station; double jeopardy/punishment (license suspension and criminal prosecution); so-called per se laws (.08% blood-alcohol is illegal, even if sober); presumption of guilt (if .08%, presumed to be under the influence; if .08% when tested, presumed to be .08% when driving); ad nauseum. And having passed such laws relating to DUI, they are less reluctant to do so in other areas as well.

So who cares about DUI? To paraphrase, "First they came for the drunks, but I was not a drunk so I did not speak up….."


Toyota Announces DUI-Proof Cars

Wednesday, January 3rd, 2007

The latest half-baked weapons in the War on Drunk Driving:

Tokyo, Jan. 3  -  Japanese auto giant Toyota Motor Corp. will develop a system to stop a vehicle if it detects the driver is drunk as part of efforts to cope with a serious social problem, a report said on Wednesday.

The system, expected to become available in 2009, analyzes sweat on the palms of the driver’s hands to assess blood alcohol content and would then not allow the vehicle to be started if the reading was above safety limits, the Asahi Shimbun said. The system would also analyze the driver’s eye movement, driving performance and other factors, the Asahi said.

European automakers have developed systems that require the driver to blow into a tube attached to a vehicle to detect alcohol in the breath.  Toyota opted not to use that system as it may fail if the driver asks another person to blow into the tube, the Asahi said. Toyota rival Nissan Motor said last year it was planning similar steps.

Brilliant!  No one will ever think of wearing gloves or dark glasses…

(Thanks to William C. Head and Gary Pirosko.)


Truth, Justice…and Expediency

Monday, January 1st, 2007

As any experienced criminal attorney knows, truth, justice and fairness can be rare commodities in our courts when dealing with a drunk driving offense. This has become such a common phenomena that I long ago gave it a label: "The DUI exception to the Constitution". When it comes to cases involving driving under the influence of alcohol or drugs, there seems to be a distinct bias in favor of "streamlining" procedures and facilitating convictions.

Cynics might suggest that this may have something to do with political considerations — with the desire of some judges to get reelected. We’ll talk about that in a moment….. In the meantime, let’s take a look at an example of what kind of thinking goes on in the judicial mind in a DUI case. In fact, let’s go to the highest court of the most populated state in the country: the Supreme Court of California.

In People v. Bransford, the Supreme Court was confronted with a defendant who was challenging his .08% conviction on the grounds that he was not permitted to offer scientific evidence of defects in the breathalyzer to the jury. Specifically, he was not permitted to offer the testimony of recognized experts that the machine’s computer was programmed to assume that there were 2100 parts of alcohol in his blood for every 1 part measured in his breath. He was also prevented by the trial judge from offering further evidence that this 2100:1 ratio was only an average — and that the actual ratio varied widely from person to person, and within one person from moment to moment. (If, for example, a suspect’s ratio had been 1300:1 at the time he blew a .10% on the machine, his true blood-alcohol would have actually been .06% — that is, he would have been innocent.)

The Supreme Court of California affirmed the conviction, ruling that such scientific facts are irrelevant: the law was written in a way that concerned the amount of alcohol in the blood "as measured on the breath". In a display of either twisted logic or ignorance of the scientific facts involved, the Court simply said that the crime consisted of the amount of alcohol in the blood — but only as measured on the breath. In other words, although the crime is having .08% alcohol in the blood, you can’t offer evidence about the amount of alcohol actually in the blood! An amazing decision.

More interesting, perhaps, is language in the opinion — an opinion which gives us a window into the justices’ minds. In what must have been a complete failure to appreciate the significance of what they were writing, the Court justified its ruling in a rather frank — and incredible — admission of its hidden agenda:

It will increase the likelihood of convicting such a driver, because the prosecution need not prove actual impairment…Adjudication of such criminal charges will also require fewer legal resources, because fewer legal issues will arise. And individuals prosecuted under such a statute will be less likely to contest the charges. People v. Bransford, 8 Cal.4th 894 (1994).

In other words, barring an accused from defending himself with scientific truth serves justice by making it easier to get convictions. Are all judges oblivious to the truth? Not entirely. One judge, Justice Joyce Kennard, dissented from the majority opinion in Bransford. She wrote in a separate opinion: "The majority…has on its own created the new crime of driving with alcohol in one’s breath."