Is It Possible to Prove “Driving Under the Influence of Drugs”?

Posted by Lawrence Taylor on October 7th, 2015

In dealing with a case of driving under the influence of alcohol, the primary evidence is the driver’s blood-alcohol level, determined by blood or breath testing.  If it is .08% or higher, the driver is presumed to be under the influence to the degree that he cannot safely operate a motor vehicle.  With the passage of so-called "per se" laws in all states, a second crime can also be charged — the crime of simply having a blood-alcohol level of 08% or higher.

Although the breath and blood analysis procedures may be unreliable and inaccurate, the scientific principles underlying them have been shown.  Blood-alcohol concentrations can be measured, if not always accurately,and the majority of people will be "under the influence" with .08% or higher of alcohol in their blood.  This, of course, varies greatly with individual metabolism, tolerance, etc.

But what about driving under the influence of drugs or marijuana?  How do you measure the amounts in the blood?  At what levels is a driver "under the influence"?

Answer:  No one knows.

The following are excerpts from a news release issued one week ago by the Governors Highway Safety Association.  Entitled "Drug Impaired Driving: A Guide for What States Can Do", the press release presents scientific conclusions from a study authored by Dr. Jim Hedlund, formerly a senior official with the National Highway Traffic Safety Administration.

New Report Urges National, State Action on Drugged Driving

Washington, DC.  Sept. 30 – This report summarizes the current state of knowledge on drug impaired driving, including what little is known about the costs
and effectiveness of these actions, and identifies actions states can take to reduce drug-impaired driving…

The relations between a drug’s presence in the body, its concentration, measured in blood, breath, saliva or urine, and its
impairing effects are complex and not understood well.  A drug may be present at low levels without any impairing effects. Some
drugs or metabolites may remain in the body for days or weeks, long after any impairment has disappeared (Berning et al., 2015;
GAO, 2015).

In particular, marijuana metabolites can be detected in the body for weeks after use (Berning and Smither, 2014).
On the other hand, concentrations in the body of some drugs decrease rapidly while impairing effects persist. For marijuana,
THC concentrations fall to about 60% of their peak within 15 minutes after the end of smoking and to about 20% of their peak
30 minutes after the end of smoking while impairment lasts for 2 to 4 hours (Kelly-Baker, 2014; Logan, 2014).

In addition, individuals differ in how their bodies absorb and metabolize a drug. In experimental settings, wide ranges of drug
concentrations produce similar levels of impairment in different individuals (Berning et al., 2015). NHTSA’s observation is generally
accepted: “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver
impairment” (Berning et al., 2015). GAO (2015) agrees: “identifying a link between impairment and drug concentrations in the body,
similar to the 0.08 BAC threshold established for alcohol, is complex and, according to officials from the Society of Forensic
Toxicologists, possibly infeasible.”

Alcohol is far simpler because it is quickly absorbed into the body and impairment is directly related to BAC.
The only generally accepted conclusion regarding drug levels and impairment is that impairment usually increases as a drug’s
concentration increases…

In other words, law enforcement has no accurate way to prove that a suspect is impaired by drugs or marijuana.  The only "evidence" of driving under the influence of drugs: the police officer’s subjective and less-than-expert opinion.

(Thanks to DUI defense attorney George Bianchi of Seattle, Washington.) 

Beat the IID with Raccoon Breath?

Posted by Jon Ibanez on October 5th, 2015

 Yes, you read that title correctly. And yes, this was the buzz on the internet last week when a police report of a San Diego naval officer who used a raccoon to beat the ignition interlock device that was installed on his vehicle was posted on

According to the police report, which was originally reported on by the Telegraph and CBS Detroit, the naval officer, who was stationed at Camp Pendleton in Oceanside, California, was attempting to drive home after drinking in town.

An ignition interlock device prevented the serviceman from starting his vehicle. As the report described, “[The] suspect was too intoxicated to successfully start the vehicle so he went into the park where he captured a raccoon rummaging in a trash receptacle.”

The report went on to say that the “individual utilized the raccoon to blow into the interlock system successfully, but the raccoon became unconscious from being squeezed and was discarded on the floorboard of the vehicle until a short time later when the raccoon regained consciousness and began to attack the suspect while driving, causing the vehicle to crash into a residential fence. The vehicle came to a complete stop in an inground [sic] swimming pool. The suspect sustained numerous scratches and bite marks to the hands, face, stomach, and arms.”

As humorous as it might be to envision a naval officer squeezing a raccoon into an ignition interlock device, unfortunately it isn’t a true story.

Public affairs officer for Camp Pendleton, Lt. Abigail Dredge told The Huffington Post that the incident number on the report did not match the numbering system used by the base.

According to the San Diego Union-Tribune, base officials confirmed that no breathalyzer incidents involving raccoons were found.

The Telegraph updated its story to confirm that the report was an internet hoax.

While it might seem like a good idea at the time, when you’re drunk and desperate to start your vehicle, squeezing a raccoon into an ignition interlock device will not will not successfully bypass the system. Aside from running the risk of being attacked by the raccoon, attempting to bypass an IID is illegal.

Expunging a California DUI Conviction

Posted by Jon Ibanez on October 3rd, 2015

Many of my DUI clients are mistaken in the belief that their DUI conviction magically disappears from their record after a number of years. I’ve heard clients believe the number to be anywhere from three years to ten years. Often they discover that they were mistaken when, years later, they apply for a job and discover that the DUI conviction is, in fact, still on their record.

Fortunately for those clients and anyone else convicted of a California DUI, California Penal Code section 1203.4 allows a person to petition to have their DUI conviction “expunged.”

California Penal Code section 1203.4 provides, “In any case in which a defendant has fulfilled the conditions of probation…or in any case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted relief under this section, the defendant shall…be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; of, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and…he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted…”

In other words, if a person has successfully completed probation and if the court deems it appropriate, that person can petition to withdraw their guilty plea or guilty verdict and the court will then dismiss the case.

Although commonly used to describe the relief provided by California Penal Code section 1203.4, the term “expungement.” is actually a misnomer. Despite what most people think about expungements, it does not actually expunge or delete the conviction from the record. Rather, if the expungement is granted, the record will still show that the person was arrested and charged with a California DUI, but was dismissed by the court.

When applying for jobs to private employers, a person who has successfully petitioned the court for an expungement of their California DUI conviction does not need to disclose the conviction.

Clients are often concerned that, notwithstanding the expungement, the mere arrest will keep an employer from hiring them. However, the California Business and Professions Code prevents employers from asking about and using an arrest against a person. Simply put, an arrest legally means nothing without a conviction.

The caveat to these benefits, however, is that the conviction must be disclosed when applying for a government position, a state license, public office, or for contracting with the state lottery. If this is the case, however, a person can then say that the conviction was dismissed under Penal Code section 1203.4 after they have disclosed it.

Crime Lab Breath Test Results “Unreliable”

Posted by Lawrence Taylor on September 30th, 2015

I’ve written repeatedly in the past about the inherent inaccuracy and unreliability of breath testing machines (generically referred to as "breathalyzers").  See, for example, How Breathalyzers Work — and Why They Don’tWhat Makes Breathalyzers Inaccurate? and Ohio Rejects Popular Breathalyzer: Accuracy Challenged.  And see a treatment of the issue on my law firm’s website, Breathalyzer Accuracy.  

Independent of the inherent problems in the machines and the variations of human physiology involved, a further issue has always been the reliability of the governmental crime laboratories responsible for the calibration and maintenance of the machines.  See my posts, Lab Fraud Discovered in Breathalyzer Accuracy ChecksHow to Prove Breathalyzer Accuracy: Falsify the Records and Houston Grand Jury Subpoenas DAs in Breathalyzer Cover-Up.

As an example, consider the following recent ABC-TV news story:

Forensic Failures at State Crime Labs May Jeopardize Cases

Chicago, IL.  Sept. 23 – Some drunk drivers could go free because of law and disorder at Illinois State Police crime labs.

The ABC7 I-Team uncovered a pattern of forensic failures that could put criminal cases in jeopardy and risk thousands of charges and convictions being thrown out.

Unreliability in science is like a bull in a china shop: it can wreck everything. The Illinois state crime lab is under fire by a criminal defendant who may have been wrongly charged- using evidence with inaccurate or unreliable test results – and under fire by defense attorneys and experts alarmed by what they see as shoddy science.

James Kisla struck a pedestrian on Yackly Avenue in Lisle. According to court records, a couple ran across the middle of a street, into traffic, in front of Kisla’s car.

Kisla wasn’t ticketed in the 2011 accident but a sobriety test had him just beyond the legal limit. Then Kisla’s lawyer discovered this – a 2011 internal audit of the Illinois State Police Laboratories and blood alcohol test inaccuracies.

State police officials tell the I-Team their tests results were accurate.  But the audit called for corrective action – a revision of the labs’ "scientific method" and ordered "in-service training for the state police toxicology section."

Kisla’s lawyer, Don Ramsell, showed the audit to prosecutors.  "The prosecutor decided not to even bring the blood test results into evidence. It only took one day after for the judge to declare Mr. Kisla innocent of all the charges," Ramsell said.

Up to 15 years in jail – but Kisla was cleared because the state police forensic tests were unreliable…

The I-Team found more lab mistakes occurring in the state’s labs. We examined these internal Illinois State Police lab audits and reports going back to 2003 and found numerous blood and urine testing errors. "Test samples (were) switched," there were "mislabeled specimens", a "mix up of results," "improper calibrations" of tests, "improper methods (were) used," and "samples wrongly destroyed."

But Ramsell says the biggest problem is none of the state’s lab results for blood and alcohol tests can be considered reliable. That is because their lab technicians have never performed "method validations" on their testing procedures – a fundamental check and balance in the science world.

"Not only is it completely unacceptable but it’s shocking that no one from the state police ever reported that to anybody," Ramsell said…

Yet the readings from these unreliable machines are automatically assumed by law to be reliable and admissible in evidence — unless the defendant can somehow prove they aren’t.  And once admitted in evidence, the jury in most states is given jury instruction stating that if the reading is over .08%, the defendant is rebuttably presumed by law to be guilty.  See my post, Whatever Happened to the Presumption of Innocence?.

Do Officers Need to Read Miranda Rights During a California DUI Stop?

Posted by Jon Ibanez on September 28th, 2015

We see it on T.V. and in the movies; officers arresting someone and immediately reading them their Miranda Rights. Unfortunately it is a common misconception that a California DUI case will be thrown out because an officer does not read a DUI suspect the Miranda Rights after a DUI stop. Unbeknownst to many, the law is very specific as to when Miranda Rights must be read.               

In the landmark case of Miranda v. Arizona, the United States Supreme Court said that a confession that is the fruit of an interrogation after someone is arrested is not voluntary if the suspect does not know that he or she has the right to remain silent under the 5th Amendment. And only voluntary confessions are allowed as evidence. Therefore, all suspects must be advised of their rights before a "custodial interrogation.”. Voila! The Miranda Rights were born.

From what we’ve seen on T.V. and in the movies, most of us can recite the Miranda Warnings verbatim. However, if you’re one of the rare few who haven’t watched Law and Order recently, they go a little something like this:

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

According to the United States Supreme Court, two things must occur before Miranda Rights attach; 1.) a custody and, 2.) an interrogation.

Having said that, most of the questions asked during a California DUI stop occur after a traffic stop, but before the person is arrested. Questions that occur during this time are merely for investigatory purposes. The officer cannot arrest someone for a California DUI unless they have probable cause to believe that the person is driving drunk. The pre-arrest investigatory questions are aimed at obtaining this probable cause.

“Where are you coming from? Where are you going to? Have you been drinking? How many drinks have you had? Have you taken any medication?”

Even though a person is not yet advised of their right to remain silent, they still need not answer the questions. In fact, you never need to speak with officers.

If the officer obtains the probable cause to believe that the person is driving drunk, either through incriminating answers to the pre-arrest questions, performance on field sobriety tests, or the officer’s observation of the signs of intoxication, they will conduct a DUI arrest.

Even after a person is arrested for a California DUI, the officer still need not read a person their Miranda Rights, although they almost always do. If the driver is arrested, the officer only needs to advise someone of their rights before they conduct any questioning.

And when that happens, God forbid, remember:

“I do not consent to any search, I am invoking my 5th Amendment right to remain silent, and I want my lawyer now.”