Archive for March, 2014

Marijuana-Impaired Driving: A Prosecutor’s Nightmare?…or the Beginning of Criminal Unimpaired Driving?

Friday, March 28th, 2014

I've posted in the past about the difficulties of proving that a DUI suspect was impaired from using marijuana.  See DUI Marijuana: Does Marijuana Impair Driving?,  Identifying and Proving DUI Marijuana ("Stoned Driving").  I've also commented upon some states' simple solution to those difficulties:  set arbitrary legal limits of marijuana in the blood — or simply outlaw driving with any trace of marijuana in the blood — regardless of lack of impairment ("zero tolerance").  See Driving + Trace of Marijuana = DUI.

This situation became even more difficult for the prosecution with the decision by the Supreme Court of the United States (SCOTUS) in Missouri vs. McNeely last year, requiring the police to obtain a warrant before drawing blood without the driver's consent.  Since a breathalyzer can't measure or even detect marijuana, this left the police in a difficult situation.

Recently, I was interviewed at some length about this by a reporter from the American Bar Association Journal.  Unlike many interviews I've given reporters, this one resulted in a very thorough and well-done article about the entire issue…

 

SCOTUS Ruling Could Complicate Laws on Impaired Driving

ABA Journal, April 2014 issue — In December 2012, Emily Sue Falkenstein of Renton, Wash., drove into a marked crosswalk where wheelchair-bound Gregory Ramirez, 48, was crossing with his 6-year-old niece in his lap. The crash broke his leg and his wheelchair, and it left the girl with bruises and scrapes, according to court papers.

The responding officer said Falkenstein's car smelled strongly of marijuana, but Falkenstein refused to take a blood test voluntarily. At the time, Washington law made blood draws mandatory for anyone arrested on charges of felony DUI, vehicular homicide or vehicular assault. A warrantless test eventually showed above-legal levels of alcohol and marijuana in Falkenstein's bloodstream.

Initially, Falkenstein faced felony charges of vehicular assault and reckless endangerment. But between the crash and her July 2013 plea deal, the U.S. Supreme Court decided Missouri v. McNeely. In that case, the court said officers may not take blood samples from drivers who refuse to provide them voluntarily, unless they have a warrant or some kind of "exigent circumstance." The rapid disappearance of alcohol from the bloodstream is not considered an exigent circumstance, the court said, though it might be a factor.

Because of the ruling, King County prosecutors decided not to use the results of the blood test as evidence, says Falkenstein's attorney, Philip Petersen of Auburn, Wash…

As in the Falkenstein case, McNeely could complicate intoxicated-driving prosecutions all over the country. According to federal Department of Transportation research, about 20 percent of drivers nationwide refuse to take a test when asked. But a long wait for a warrant may destroy key evidence by allowing the driver's body to metabolize alcohol or drugs.

Although the Supreme Court said this is not a per se exigent circumstance, it's still a problem for police agencies without the procedures or technologies to get a warrant quickly. That's especially so in the 15 states that expressly or implicitly decline to allow electronic warrant applications.

The wait may pose a special problem with drug-impaired driving, which is generally detected by a blood test. McNeely came down just months after Colorado and Washington legalized the possession and use of small amounts of marijuana. Prosecutors in those states expect a rise in marijuana-intoxicated driving; a marijuana "legal limit" was built into Washington's ballot initiative to address that concern.

Meanwhile, the rate of prescription drug abuse—particularly abuse of opioid or narcotic painkillers—has gone up dramatically since 1999, according to the Atlanta-based Centers for Disease Control and Prevention. In 2012, Kerry Kennedy (daughter of Robert F. Kennedy and ex-wife of New York Gov. Andrew Cuomo) was charged with DUI after an accident involving the sleep aid Ambien; she was acquitted Feb. 28.

Another controversial concern about McNeely is that it could invalidate the blood-testing requirements in states that imply consent laws, which say drivers consent to take tests by receiving driver's licenses. Because McNeely reaffirms that there's a constitutional right to refuse blood tests, some attorneys believe states won't be able to make waiving that right a condition of driving privileges. If courts agree, it could increase test refusals and thus make it harder to prove intoxicated driving.

"This means we can no longer sanction drivers who refuse blood testing by using that refusal as consciousness of guilt at trial. Nor, as was the case in Washington, can we mandate blood testing even in fatality cases," says Moses Garcia, a traffic safety prosecutor for the state of Washington. "This is a huge setback."

Lawyers on both sides say the wait time for a warrant is unlikely to cause many problems—at least not new problems. Leonard Stamm, a defense attorney who helped to write an amicus brief in McNeely for the National College for DUI Defense and the National Association of Criminal Defense Lawyers, says the new problems are arising in the few jurisdictions that were routinely taking blood without a warrant before McNeely. Some jurisdictions agreed with Missouri that alcohol dissipation creates a per se exigency; other states also had laws permitting warrantless draws in specific circumstances, such as after a crash.

In those areas, McNeely forced judges to consider whether the warrantless blood draw evidence, from cases pending while McNeely was decided, is admissible. Stamm of Greenbelt, Md., says the U.S. Park Police were routinely taking blood from test refusers without a warrant. He says the local judge who has the resulting cases has been granting or denying suppression motions based on whether each case has exigent circumstances. In other jurisdictions, he says, some judges have used the good-faith exception to the exclusionary rule.

In practice, there's a delay before almost any DUI test. The NCDD's brief said there are built-in delays even when a driver agrees to a roadside breath test, the quickest kind. The officer must read the implied consent advisory, sometimes permit a phone call to counsel, and observe the driver for 15 to 20 minutes to ensure the test results are not tainted.

For a test refusal, the NCDD brief said, it typically takes about two hours for police to get blood drawn. In an outlier case it cited, the blood draw took four hours from the time of the traffic stop. And in 21 states, the NCDD said, it "has long been the norm" to get a warrant after all or most test refusals…

Delays before the blood test are not generally fatal to an alcohol DUI case, even if the results show a driver is just under the legal limit, which is 0.08 percent blood-alcohol content in every state. That's because alcohol is metabolized at a predictable rate. Usually, the prosecution can bring in an expert to testify about the driver's likely blood-alcohol content at the time he or she was driving. (However, Garcia says that's not true when the alcohol level was low to start with, as well as when dealing with someone whose body metabolizes alcohol quickly.)

But the situation is more complicated with drugs. Drugs are not eliminated from the body in a predictable way, Garcia explains, so toxicologists can't extrapolate backward.

"With alcohol, you have a predictable metabolism," says Stamm. "But with the drugs you test for, you can't say that."

That's one reason the warrant requirement could exacerbate problems with proving drug DUIs. Garcia says future litigation might focus on whether this problem creates a per se exigency in drug DUI cases, even though McNeely found none for alcohol.

The extrapolation problem is part of a general lack of science helping prosecutors connect intoxication with impairment, DUI defense lawyers say. And that makes it harder to convict a drugged driver.

"I used to be a district attorney in LA," says Long Beach, Calif., defense attorney Lawrence Taylor, whose Drunk Driving Defense treatise was cited by Chief Justice John G. Roberts Jr. in his concurrence to McNeely. "When they filed a case, I would make darn sure that there was sufficient evidence independent of the blood test to convict, because the blood test is probably not going to help you a whole lot."

The trouble, Taylor says, is telling the jury what the test results mean. In some states, there are "zero tolerance" laws that permit juries to convict if a blood test shows the presence of any controlled substance. (Some of these laws apply only to certain drivers or certain drugs.) But the standard in the majority of states, including California, is whether the driver was under the influence or incapable of driving safely.

"Let's say [the blood test] comes back and says Xanax or amphetamines. OK, how much? Some figure. OK, what does that mean? That's where they don't know," Taylor says. "Because there are very few studies and specific drugs tested as to how they impact the ability to drive a car safely. So they can't translate it for a jury into whether the person is under the influence."

"They might have a statement from the defendant that 'I took such and such a drug at such and such a time,' " Stamm says. "They almost need that in order to prove those kinds of cases."

In these states, prosecutors might also have to show that any subjective evidence of impairment at the scene, such as stumbling or slurred speech, was actually caused by the drugs.

"Jurors want proof that the impairment is from the drugs and not from any other potential basis," says Garcia. "That means disproving chronic medical issues, injuries and tolerance—to name a few issues that arise in blood cases. When we are talking about prescription drugs, jurors also want us to prove the driver 'knew' about the harmful effects of the drug by some kind of warning."

This isn't to say that blood tests are completely useless, Garcia notes. Blood tests are an objective-seeming way to corroborate the officer's observations of things like bloodshot eyes.

"It tends to support the officer's observations," Garcia says, "even though he had no idea what the result was going to be."

Getting a warrant to test for marijuana presents a special challenge. First, marijuana is the most widely used illicit drug, according to the National Institutes of Health. It's also increasingly available, thanks to medical marijuana statutes in 20 states and Washington, D.C., and recreational legalization in Colorado and Washington.

There's some evidence that legalization has increased driving under the influence of marijuana in Washington state. After the state's December 2012 legalization date for possession, the Washington State Patrol's toxicology lab reported a 47.8 percent increase in DUI marijuana cases between January and July 2012 and from January to July 2013. Studies correlating traffic fatalities with marijuana have been less conclusive; one study found that fatalities actually went down after medical marijuana laws, and it suggested drivers were substituting marijuana for alcohol.

McNeely's warrant requirement could also complicate marijuana cases because THC, the active ingredient in marijuana, is eliminated from a user's bloodstream relatively quickly. By contrast, opiates like heroin or Oxycontin may take days to leave the bloodstream.

"A person who smokes marijuana can go from zero to well over 100 nanograms [of THC in the bloodstream] in a couple of minutes,” says Chris Halsor, a traffic safety resource prosecutor for the state of Colorado. “But as soon as they ingest it, it starts to dissipate out of the system precipitously. [The driver can be] under 20 or under 10 within an hour."

To address concerns about marijuana-impaired driving, states are increasingly trying to establish legal limits for blood-THC content like the 0.08 percent limit for alcohol. In the last 10 years, six states have set higher-than-zero legal limits for THC: Colorado, Nevada, Ohio, Pennsylvania, Washington and, most recently, Montana. In five of those states, prosecutors can use blood test evidence to show a per se violation. In Colorado, the evidence creates a "permissible inference" that the driver was unsafe, allowing the jury to consider other parts of the situation.

Garcia says regardless of dosage, studies show THC will drop below 5 to 6 nanograms per milliliter—Washington's per se limit is 5 ng—60 to 75 minutes after the smoker's last puff. If the THC level is below 2 ng, the state's toxicology lab won't even confirm it was there. This is an especially big problem, he says, because drivers generally stop smoking before they get into the car.

"In most cases … the 75-minute clock will have already started at the time of the stop," he says. "If officers could know when the driver last smoked, they could estimate how long they have before the evidence is completely lost."

As a result, time is important when taking a blood sample from an allegedly stoned driver—at least in the states with zero tolerance and per se rules. If there's a several-hour delay while the officer gets a warrant and takes the driver to a hospital, the blood evidence can be lost. And as with other drugs, it's difficult to extrapolate backward from a low test result.

In other states, however, marijuana-intoxicated driving is just as hard to prove with a blood test as other drugged driving. In fact, it may be harder in some ways. Colorado marijuana activist Mason Tvert, a spokesman for the Marijuana Policy Project, says scientists haven't been able to come up with a clear limit above which most or all drivers are unsafe. That's partly for the same reasons that the 0.08 alcohol limit isn't truly universal, he says: body weight and tolerance differ between drivers. But in addition, frequent marijuana use can leave a small amount of THC in the blood of sober people, throwing off test results.

That's one reason that, when considering a marijuana DUI legal limit for a sixth time, the Colorado legislature chose the permissible inference rule.

"Per se failed in Colorado multiple times because legislators could not accept the possibility that people who are not impaired could be automatically guilty of DUI," Tvert says. Furthermore, he says, there's some evidence that low levels of marijuana intoxication can actually make drivers safer. That's both because marijuana can reduce risk-taking behavior, and because drivers tend to recognize that they are impaired. In two studies, one by the Department of Transportation, subjects expressed a growing reluctance to drive as they got high—even on a closed course.

DUI defense attorney Taylor believes legislatures' solution to this will be more zero tolerance laws, which make it easier to convict without examining whether the driver was impaired. He says there's a movement in the California legislature toward such a law for marijuana. Tvert says a lot of elected officials have embraced a 5-nanogram limit, as seen in Colorado, Montana and Washington.
 

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“First they came for the drunk drivers…”

Monday, March 24th, 2014

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 drunk drivers 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 $50 million) are so vocal in elections and in legislatures.

In contrast, there are few advocates for the accused or the Constitution during election campaigns. This judicial attitude is not limited to judges considering 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 just a few notable examples:
 

Michigan v. Sitz. The Court held that sobriety roadblocks were permissible — despite the fact that there is no exception in the Fourth Amendment for stopping citizens without reasonable suspicion.

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 tomorrow to a person accused of any other crime. 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 offense.

The danger of precedent in the DUI field is not limited to judicial decisions. Legislatures are also guilty of passing unfair and/or unconstitutional — but politically popular — statutes. 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 (dual license suspension and criminal prosecutions); so-called per se laws (.08% blood-alcohol is illegal, even if the driver is sober); presumption of guilt (if .08%, driver is presumed to be under the influence; if .08% when tested, it is presumed to be .08% when driving); ad nauseum. And having passed such unfair and unconstitutional laws relating to DUI, they are less reluctant to do so in other areas as well.

So who cares about DUI?

To paraphrase the famous quote about the rise of Hitler"First they came for the drunk drivers, but I was not a drunk driver so I did not speak up….."

 

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Can I Find Out Where and When There Will Be Sobriety Checkpoints?

Wednesday, March 19th, 2014

As most of us are aware, this past 3-day St. Patrick's Day weekend was filled with parties, revelry…and DUI sobriety checkpoints.  As most of us are also aware, these can be irritating, frightening and/or cause traffic delays.

So, I've been asked repeatedly, is there any way I can find out where checkpoints are going to be held in my town?

Yes.  As the U.S. Supreme Court held in the landmark case of Michigan vs. Sitz, which established an exception to the Fourth Amendment for sobriety checkpoints.  See DUI Sobriety Checkpoints: Unconstitutional?  Police agencies, however, are required to publish advance notice of where and when they are to be held.  

Law Enforcement, of course, has been reluctant to tip off driver to this information.  Accordingly, many if not most agencies will publish the locations and times in the back pages of small local newspapers.  Fortunately, however, the internet has proven a valuable source for ferreting out this information.

So….how do you get this information?  Easy, if you are in California:  visit the "Sobriety Checkpoints" section of my law firm's popular DUI defense website.  Along with information about sobriety checkpoints generally, there are links to lists of checkpoints scheduled in most Southern California counties.
 

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The Futility and Costs of the “War on Drunk Driving”

Sunday, March 16th, 2014

For the past couple of decades we have seen increasingly severe punishment for misdemeanor drunk driving offenses, often exceeding those imposed for serious felonies.  Spurred on by MADD's "War on Drunk Driving", this never-ending flood of politically-popular laws has continued to blindly accept the idea that imposing harsher sentences will eventually eradicate DUI-caused traffic fatalities.  With each new law, MADD issues press releases trumpeting their latest achievement with promises of an end to the "carnage on the highways" — along with solicitations for contributions to their over $50 million annual revenue.  And yet it continues…along with the collateral costs to our Constitution (see The DUI Exception to the Constitution).

Albert Einstein once defined insanity as "Doing the same thing over and over again and expecting different results".  Maybe it's time for a change….

I have not dealt with 1000s of DUI clients over the years without drawing certain conclusions:

1. The system, clearly, does not work: despite unfair laws, constitutional violations and increasingly harsh penalties, the problem remains…and people continue to die on the highways.

2. Playing games with statistics, as MADD and the government are so fond of doing, only obscures the problem.

3. The problem is not black-and-white, but involves shades of gray. It is convenient to punish anyone with a .08% blood-alcohol concentration, but neither fair nor productive. It is easy to lump all offenders into the same category of "drunk drivers" and simply adjust jail time by a reading on a machine, but neither fair nor productive.

4. You cannot simply identify what the problem is ("drunk drivers are dangerous"), but who the problem is. The problem is not people who drive with .08% BAC or higher, but people who represent a real danger to others on the highway. Who are they?

The problem is the person who severely abuses alcohol and chooses to drive. You can call him an "alcoholic", but it has been my experience in dealing with those 1000s of clients that there are different kinds of "alcoholics" and that using a simple label is no answer (we do love to put things in neat categories).

Statistics repeatedly show that the vastly disproportionate majority of alcohol-caused injuries and deaths are caused by a few "problem drinkers" (for want of a better term). Thus, the first objective in any solution is to identify these individuals. In my experience, they can usually be identified by a combination of factors:

1. Their blood-alcohol level is not just high — it is very high, say .16% to .30% or more.

2. This is probably not the first DUI — and prior incidents are likely to be relatively recent.

3. There is a genetic flag: the individual is likely to have one or two "alcoholic" parents.

All right, we've identified some markers for who the problem is , but what do we do with them? To begin, let's understand what we don't do: we don't hit them with stiff jail sentences. If we do, we simply remove the person from society for a few days or months — and on the day he gets out, he gets in his car and drives directly to a bar. What has been accomplished? Is society being protected — or are we simply punishing people for drinking too much?

Since the punishment model clearly doesn't work for the problem drinker, we must consider the other criminal justice models — isolation, deterrence and rehabilitation.  

1. Isolation. Yes, we can put the problem drinker in jail for a few months or even a few years, and we are safe from him for that period. But can we really afford to house tens of thousands more inmates? For how long? And what happens when they get out? For that matter, given the evidence, aren't we punishing them for a genetic condition?

2. Deterrence. How do you deter an "alcoholic"?

3. Rehabilitation. Once the favored approach in the criminal justice system, rehabilitation fell into widespread disfavor many years ago. Yet, this would appear to be the only logical approach with problem drinkers.

Ok, but what about the driver who is not a problem drinker but who is simply impaired from drinking too much? Answer: Treat him like any other misdemeanant. Statistically, we know he is unlikely to cause serious injury or death, but there is undeniably some risk there. Can this individual be deterred from such future conduct? Unlike with the "alcoholics", statistics show he can. Thus, it may be fair and productive to impose a fine on the typical first-offender, perhaps even suspend his driver's license for a short period; if a high blood-alcohol level is involved, say .20%, the punishment may include a 2-day jail term. But certainly not the punishments so destructive to families and careers that are now being administered to all caught up in the dragnet.

While we're at it, a refreshing approach — and a healthy one for society — would be to reinstate constitutional rights in DUI cases: due process, presumptions of guilt, timely right to counsel, protectiona against double jeopardy, the 5th Amendment right against self-incrimination, the right to confront witnesses, 4th Amendment "sobriety checkpoint" violations, ad nauseum. (Again, see The DUI Exception to the Constitution.)

Does all of this finally solve the drunk driving problem? No: people will always drink and drive. But it will focus on the real threat — the truly dangerous driver — rather than on drinking and driving per se. And, in the process, reinstate the essential fairness and due process that has been slowly removed from the criminal justice system.
 

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The National College for DUI Defense

Monday, March 10th, 2014

Until a few years ago, attorneys attempting to defend a client against drunk driving charges were general practitioners who had little, if any, understanding of the nature of the offense. They were unfamiliar with such DUI investigatory methods as field sobriety tests, and there was an almost complete lack of seminars on how to defend these clients.

Most importantly, defense lawyers were completely ignorant about the complexities of blood alcohol analysis — whether of blood, breath or urine samples. How does this breathalyzer work? What is infrared analysis? Gas chromatography? How is alcohol metabolized in the human body? What is "Widmark’s formula"? Hematocrit? What is "retrograde extrapolation" and how does it work? What physiological variables occur between individuals? What medical conditions can effect a breathalyzer reading and how? What happens if blood samples ferment or coagulate?

Chemical analysis of blood, breath or urine involved knowledge of such highly technical fields as physiology, organic chemistry, physics, biophysics, electrical engineering — subjects far beyond the experience and training of lawyers.

Then about 20 years ago, 11 of the most prominent DUI defense attorneys in the country met in a hotel conference room at Chicago’s O’Hare Airport. Over the following three days they hammered out plans for a new professional organization: "The National College for DUI Defense". They created this as a non-profit organization dedicated to improving the quality of the DUI defense Bar, primarily through providing educational seminars.

An important secondary purpose of the organization was to address the problem of insularity in the profession — the isolation of lawyers: the College would be a tool with which attorneys across the country could share information, ideas and experiences.

I am proud to say that I was one of those 11 original founders, and soon after served as Dean and on its Board of Regents. For each of us, the College was a true labor of love.

Soon after the College's inception, the first national seminar was held at Harvard Law School. It was an intense 3-day series of lectures, demonstrations and workshops, featuring a faculty of 22 of the top lawyers, scientists and forensic toxicologists in the field. The experiment was a huge success, and has been repeated every July at Harvard for the past 20 years. In fact, the College’s governing Board of Regents soon expanded this educational effort by creating a second annual seminar in conjunction with the National Association of Criminal Defense Attorneys.  This proved another resounding success: in recent sessions held in Las Vegas, there have been over 500 lawyers attending from all over the country.  A fourth annual seminar was soon added:  "Mastering Scientific Evidence".

The National College for DUI Defense also created an internet website, along with an email discussion group where attorneys could share information and ideas. There are currently hundreds of members across the country (and in other countries) using this forum — and discovering that what one lawyer in Texas has found effective in dealing with DUI sobriety checkpoints can be helpful to another in Oregon.  In addition, the College website contains information for laymen on such topics as state DUI laws and finding a DUI defense attorney, information concerning upcoming College seminars, as well an extensive online library of legal and scientific literature on DUI-related subjects for attorneys.

Having provided the means to develop greater skills in this demanding field, the College next addressed the need to recognize those lawyers who had achieved the highest levels of competence. Within recent years, they began certifying attorneys as specialists in DUI defense. In order to achieve Board-certification, an applicant must satisfy demanding requirements of practice and trial experience, as well as pass intensive written and oral examinations.

Most recently, the College has been successful in applying to the American Bar Association for recognition of a new legal specialty: DUI Defense. After considerable study, the ABA went further and recognized the National College for DUI Defense as the sole organization authorized to certify attorneys as specialists in this new field.

The College maintains its headquarters in Montgomery, Alabama, and currently has a membership of over 1300 attorneys.
 

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