Archive for November, 2013

Don’t Smoke Pot and Drive…for a Month

Friday, November 8th, 2013

So this is how insane it's all gotten….

Evidence of Pot Smoking Weeks Earlier Enough for DUI Charge, State Says

Phoenix, AZ.  Nov. 6 — A prosecutor argued Tuesday there’s nothing wrong with charging a motorist who smoked marijuana up to a month earlier with driving while drugged.

In arguments to the Arizona Supreme Court, Susan Luder, a deputy Maricopa County attorney, acknowledged that Carboxy-THC, a secondary metabolite of marijuana, can show up in blood tests for a month after someone has used the drug. And she did not dispute the concession of her own expert witness that the presence of that metabolite does not indicate someone is impaired.

But Luder told the justices the Legislature is legally entitled to declare that a positive blood test for Carboxy-THC can be used to prosecute someone who, if convicted, can lose a driver’s license for a year.

Chief Justice Rebecca Berch questioned how far that logic can be stretched, asking Luder whether her argument falls apart if it turns out that Carboxy-THC can be measured a year, or even five years, after someone smoked the drug.

Luder said she understands arguments about why it may not be fair to charge someone 30 days later, “But that’s up to the Legislature to decide,” she said.

Justice Robert Brutinel also questioned where the line is drawn. He said some otherwise illegal drugs eventually metabolize all the way down to water.

“Where do you draw the line to when the metabolite’s no longer illegal?” he asked.

“It’s hard to say,” Luder responded.

The court ruling affects whether any of the 40,000 Arizonans who are legal medical marijuana users will effectively be banned from driving, given how long metabolite remains in the system. And it also makes potential criminals out of anyone else who drives and also has used marijuana in the last 30 days, including those who might be visiting from Washington or Colorado, where recreational use of the drug is legal.

The immediate court case involves a driver cited for a traffic violation who, when given a blood test, was found to have Carboxy-THC in his system and was charged with driving with an illegal drug or its metabolite in his body.

A trial judge threw out the charge. But the Court of Appeals said the laws on impaired driving “must be interpreted broadly.”

Attorney Michael Alarid said that ruling effectively bans driving by anyone with the slightest amount of Carboxy-THC in the blood, “which is an absurd result.”

But Justice Scott Bales said the fact remains that anyone who tests positive for that drug had, in fact, used marijuana. And he said there is no way for police to “extrapolate backwards” to determine exactly when that person was impaired.

“If we don’t know that, wouldn’t it be reasonable for the Legislature to prohibit driving while you have Carboxy-THC in your system?” Bales asked.

Bales acknowledged some people who test positive for Carboxy-THC never drove when they were impaired. But he said, “if it’s a choice between erring on over-inclusive or under-inclusive, why isn’t that … a policy question for the Legislature rather than one for us?’’

Alarid, however, said the only issue is whether there is specific evidence of impairment while someone is driving, which police could determine.

A simple ban on driving with Carboxy-THC in the blood is not rationally related to the purpose of the statute, which is to protect the public from “impaired’’ drivers, he said.

The justices gave no indication when they will rule.


To put this into perspective, imagine the legislature in your state passing a law defining drunk driving to include anyone who the prosecution can prove has had a drink of alcohol within the previous month.  Of course, this is the logical extension of MADD's endless "War on Drunk Driving":   laws designed not to punish criminals or protect the public, but to make it easier to convict — guilty or not.

As for the deputy county attorney in this case, when I was a deputy D.A. many years ago we were taught that the canons of ethics required us to seek truth and justice — not just to win or convict as many people as possible.  Today, the running joke in prosecutors''s offices is, "Anyone can convict a guilty man, but it takes skill to convict an innocent one."

Times change…

(Thanks to Joe.)


How to Avoid Scientific Facts: Pass a Law

Sunday, November 3rd, 2013

The drunk driving laws make it a criminal offense to drive a vehicle while under the influence of alcohol (DUI) or while having a blood-alcohol concentration (BAC) of .08% or higher. It is not, however, a criminal offense to be under the influence or to have a BAC of .08% while taking a breath or blood test in a police station an hour or two after driving.

So how does the prosecution prove what the BAC was when the defendant was driving?

It's a problem. You can try to guess what the BAC was in a DUI case by projecting backwards, using average alcohol absorption and elimination rates, but it's only a very inaccurate guess. The process is called retrograde extrapolation – a fancy name for trying to guess backwards.

The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates depending on many variables. In one study, for example, researchers found a wide range of matabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. Dubowski, "Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects", Journal on Studies of Alcohol (July 1985).

As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged. From the recognized expert in the field, Professor Kurt Dubowski of the University of Oklahoma:

It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded.  21(1) Journal of Forensic Sciences 9 (Jan. 1976).

So, Mr. Prosecutor, you've got a breathalyzer reading of .10% an hour or two after the driving and the scientists say you can't accurately project that BAC back to the time of driving: if alcohol was still being absorbed and the BAC was rising, for example, it could have been a .07% or lower. That kind of leaves you in a pickle. What do you do?

Simple: You just get the legislature to pass a law saying that the blood-alcohol when tested is the same as it was when driving.

What? But that's just not true: It’s a scientific fact that BAC constantly changes as alcohol is metabolized. How can we legally presume to be true what we know is simply not true?

Well, yes, but we can never really know, can we? And it sure makes the prosecutor's job easier, doesn't it?  Let the defendant try to prove what his BAC was an hour or two earlier.

That's right: Most states now have laws saying your BAC was the same 2 or 3 hours earlier — unless you can prove it wasn't! Typical is California's law:

It is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving.  Vehicle Code sec. 23152(b).

Wait a minute!  What about the truth?  And what about the State having the burden of proof  beyond a reasonable doubt? How can the law simply presume guilt and force the defendant to disprove it? What about the presumption of innocence?

Details, details. The important thing here is that we get these drunk drivers off the road, right?