Another (Defective) Weapon in the “War on Drunk Driving”

Posted by Lawrence Taylor on May 12th, 2015

 As I’ve mentioned in past posts, law enforcement has a major problem in determining whether a driver is under the influence of, say, marijuana.  Actually, there are two problems…

The usual procedure is to take a blood sample and have it analyzed for the presence of marijuana — or, more accurately, for the presence of the active ingredient, tetrahydrocannabinol, or THC, in the blood.  However, this does not tell us whether the subject is under the influence to the extent that he is impaired — that is, "unable to safely operate a motor vehicle".  The simple fact is that no reputable laboratory or governmental agency has been able to establish what the critical level of THC is that constitutes impairment.  Unlike with alcohol, where there is a presumption of intoxication at a level of .10% percent alcohol in the blood, we simply don’t know what amount of marijuana causes what level of impairment.

Second problem:  the presence of THC does not tell us when the marijuana was consumed — and whether it is still active in the system.  The fact is that metabolites can remain in the blood — inert and thus not causing any impairment — for weeks after being initially taken.  A driver could be stopped a week after smoking a joint and a blood test would show him positive for THC.

Despite this, governmental agencies and law enforcement continue to come up with new, quick and easy technology to "detect" levels of impairment in drivers.  And politicians, in their desire to look "tough on drunk driving" to voters, continue to fall over themselves in passing laws enabling these new weapons in the "War of Drunk Driving"…the most recent being a new device which supposedly permits cops to pull a driver over, take a swab of saliva from his mouth, and have it instantly analyzed at the scene for marijuana and drugs.

California Looking at New Drug-Detecting DUI Technology 

Sacramento, CA.  May 11 – California lawmakers are considering a proposal that would give cops permission to use technology that identifies drivers under the influence of marijuana, cocaine and other drugs.

Assembly Bill 1356 changes California law to state that any person driving a motor vehicle has given their consent to chemical testing of his or her blood or oral fluids. Under the measure, law enforcement officers are then authorized to use a new device that can detect drugs in someone’s system using a swab of saliva.

The DDS 2 Mobile Test System was developed by Alere and is reported to have a 90 percent accuracy rate, according to the company. The device screens the saliva sample and determines in a matter of minutes whether the driver has taken amphetamines, cocaine, marijuana, methamphetamines or opiates…

Sounds great:  A new gizmo that can quickly tell a cop if a driver is under the influence of, say, marijuana.  For a more detailed discussion of the flaws in this new DDS2 Mobile Test System, see my post from April 27th, "California Proposes New Law to Allow Roadside Marijuana Test".


Can You Fail Field Sobriety Tests While Sober?

Posted by Jon Ibanez on May 11th, 2015

I have never seen a police report say that a California DUI suspect “passed” the field sobriety tests performed after a DUI stop. Does that mean that all of those suspects were intoxicated? No.

This necessarily means that people can fail field sobriety tests while sober. But how?

Unfortunately it’s not all that difficult.

Field sobriety tests are notoriously unreliable. Yet law enforcement agencies continue to employ the Horizontal Gaze Nystagmus (HGN) Test, the Walk-and-Turn Test, and the One-Leg Stand Test to determine intoxication. These are the tests that the National Highway Traffic Safety Administration has designated as standard. Other tests include the Rhomberg Balance Test, the Finger-to-Nose Test, and the Finger Tap Test.

Field sobriety tests are used to gauge a person’s coordination, balance, and simple motor skills after they have consumed alcohol. And while they may, in fact, test coordination, there are a number of reasons why a sober person might fail a field sobriety test.

Needless to say, most people are both stressed and nervous when they are pulled over and asked to step out of their vehicle. The stress and nervousness inevitably make it difficult to concentrate. Yet officers regularly fail a person for having trouble following the field sobriety test instructions.

A person who is intoxicated may likely exhibit trouble with balance. Lack of balance is what officers look for when a suspected drunk driver performs field sobriety tests. However, balance can be affected by many things, one of which is inner ear problems. The inner ear contains a small organ called the labyrinth that helps us maintain balance. When the labyrinth is disrupted, so too is that person’s balance. Some of the things that can disrupt the labyrinth include infections and illness, head trauma, age, and tumors, to name a few.

Physical problems and disabilities can also affect a person’s performance on field sobriety tests. Physical problems such as knee pain or lower back pain may make it difficult to, say, walk heel to toe in a straight line or stand on one leg perfectly still for 30 seconds.

For the same reasons, people who are older or who are overweight may also have trouble performing field sobriety tests that require coordination and balance.

While it may be dangerous to drive while tired, it is not illegal like driving under the influence. However, lack of sleep can cause many of the same symptoms as intoxication. When people are tired they can experience poor balance, lack of coordination, and trouble with motor skills. What’s more, when someone is sleep deprived and tired, they exhibit bloodshot, watery eyes. Unfortunately, bloodshot, watery eyes are amongst law enforcement’s favorite indicators of intoxication.

Perhaps one of the most powerful factors affecting a person’s purported performance on field sobriety tests is the officer’s interpretation of that person’s performance. Law enforcement officers have already decided that a person is intoxicated even before the person performs the field sobriety test. As a result, the officers are going to see what they expect (or want) to see.

I could go on with many other reasons why sober drivers fail field sobriety tests, but that would make this post extremely lengthy. Suffice it to say, field sobriety tests are unreliable and sober people do fail them.

Having said that, drivers have a right not to and should not ever agree to perform field sobriety tests because they will fail whether they were intoxicated or not.  

Can You Get a California DUI While Parked?

Posted by Jon Ibanez on May 4th, 2015

The first word in the acronym DUI is “drive,” yet many people believe that a person can get a California DUI even if they didn’t drive a vehicle. While that may be the case in other states, in California a prosecutor needs to prove that a person actually drove a vehicle while intoxicated.

California Vehicle Code section 23152 (a) and (b) reads, “It is unlawful for a person who is under the influence of any alcoholic beverage or who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

So can a person be arrested and subsequently convicted if police find them drunk and passed out in a parked car?

In the 1991 case of Mercer v. Department of Motor Vehicles, the California Supreme Court held that the word “drive” for purposes of California’s DUI law required evidence of a defendant’s volitional movement of a vehicle. With his holding, the California Supreme Court upheld “decades of case law” on the issue.

In 1985, it was held in the case of People v. Wilson that “[w]ith regard to the offence of driving under the influence…a ‘slight movement’ of the vehicle in the officer’s presence has been a determinative factor in concluding whether or not a defendant was ‘driving’ in the presence of the officer.”

So does that mean that the officer must witness a “slight movement” of the vehicle? No.

The court in Wilson went on to say, “On the other hand, where the sufficiency of the evidence to support the judgement is in question, as contrasted with the validity of a defendant’s arrest, it is clear that the existence of evidence establishing a ‘slight movement’ of the vehicle does not present a problem. In the absence of such direct evidence of ‘driving’ the element of ‘driving’ may nonetheless be established at trial through circumstantial evidence…”

Simply put, a prosecutor needs to prove that a DUI suspect, at the very least, caused a vehicle to slightly move. The easiest way to prove that the DUI suspect was driving is if an officer observes a “slight movement” of the vehicle. However, if an officer does not observe a “slight movement,” a prosecutor can still prove that a person drove a vehicle with circumstantial evidence.

Circumstantial evidence that has been used to prove that a person drove for purposes of a California DUI include, but not limited to, officers finding the vehicle at or close to an accident site or finding the vehicle in the middle of the road.

California’s DUI law is different than several other states which only require “dominion and control” over a vehicle. In those states, DUI suspects can be charged and convicted if they are found intoxicated while having “dominion and control” over a vehicle with the potential to drive it.

So to answer our initial question of whether a person can arrested and subsequently convicted of a California DUI if they’re found drunk and passed out in a parked car, the answer is it depends. It depends on whether the prosecutor can prove that the person actually drove the vehicle.

California Proposes New Law to Allow Roadside Marijuana Test

Posted by Jon Ibanez on April 27th, 2015

Assembly Bill 1356 has made its way to Capitol Hill and, if passed, would allow law enforcement to use a device similar to a breathalyzer that could detect the presence of marijuana and a number of other drugs in a driver’s system in a matter of minutes.

“It’s very clear that the usage of marijuana is becoming more and more common,” said Assemblyman Tom Lackey from Palmdale, California, who proposed the law.

The law would expand California’s current implied consent law to “provide that a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or oral fluids for the purpose of determining the drug content of his or her blood or oral fluids.”

Currently, if law enforcement want to test for the presence of drugs in a driver’s system following the lawful arrest of that driver, they need to withdraw blood which could take hours.

According to CBS San Francisco, officers would be able to use a portable drug detection device called Alere™ DDS®2 that would allow law enforcement to perform a test on drivers’ oral fluids gathered from the gum line and cheeks. The swabbed fluid samples could provide results within five minutes according to the device’s developers.

"We’d be testing for marijuana, cocaine, opiates, amphetamines, methamphetamines and benzodiazepine," said Fred Delfino, spokesperson for Alere DDS 2, the company behind the new device.

You may recall from my previous posts that the Los Angeles Police Department had been given a federal grant to test these devices.

“The number of drugged drivers is increasing rapidly, and those of us in law enforcement simply do not have the tools necessary to determine the level of impairment on anything other than alcohol,” said Ron Lawrence, chief of police for Rocklin. “If the legalization of marijuana is in our future, we in California law enforcement need to be prepared to deal with the roadways and safety precautions of tomorrow."

The problem is that the device does not test for impairment. It only tests for the presence of the drugs.

It has yet to be determined what amount of drugs found in a person’s system will constitute impairment. According to Lackey, that part of the bill has not yet been worked out.

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment.

"I think that people want to have a clear-cut, black-and-white solution," says Mason Tvert, the communications director for the Marijuana Policy Project, a pro-legalization group. "They want a specific number that we can use to just say that this person is impaired or not. Unfortunately, it’s a little more of a gray area than that."

Unfortunately, Tvert is correct and that gray area can lead to sober drivers getting arrested for DUI of marijuana.

Tetrahydrocannabinol or THC is the active component of marijuana. Unlike alcohol which dissipates after several hours, THC can stay in a person’s system for weeks at a time and well after the person has smoked.

Simply put, the mere presence of THC in a person does not necessarily mean that the person is impaired and incapable of safely operating a vehicle and the new device, if AB1356 passes, could be used to prosecute sober drivers.

Court Makes it Easier for DMV to Suspend License After a California DUI

Posted by Jon Ibanez on April 20th, 2015

As if it wasn’t easy enough for the DMV to suspend a driver’s license following a California DUI arrest. Recall my numerous posting on the uphill and one-sided process that is the DMV’s administrative per se hearing. Now the DMV can consider circumstantial evidence such as an officer’s observations in determining that a person had a blood alcohol content of 0.08 percent or more.

Ashley Jourdan Coffey was arrested on November 13th, 2011 after an officer spotted her swerving on the Costa Mesa (55) freeway. The officer determined that Coffey was intoxicated based on her red eyes, the smell of alcohol and her failure of field sobriety tests.

Coffey claimed that, although she was out at the bar because she had just turned 21, she had not consumed any alcohol.

After having trouble completing several breathalyzers, Coffey eventually took a blood test about an hour after she was pulled over. That test determined that her blood alcohol content was 0.08 percent. Another blood test done three minutes later showed that her blood alcohol content had risen to 0.09 percent. Her blood was again tested at a later time and determined to have a 0.95 percent blood alcohol content.

Coffey accepted a plea deal in her court case admitting to misdemeanor reckless driving. However, because the chemical test showed that Coffey had a blood alcohol content of 0.08 or above, Coffey faced a suspension of her license through the DMV.

At the DMV admin per se hearing, Coffey hired an expert to testify that Coffey’s blood alcohol content was rising at the time of her DUI arrest. The expert testified that since her blood alcohol content was 0.08 percent about an hour after the arrest, it must have been below the legal limit at the time she was driving.

Notwithstanding the expert testimony, the DMV hearing officer ruled against Coffey. The hearing officer rejected the expert testimony claiming that it was inconsistent with the officer’s testimony that indicated Coffey was above a 0.08 percent blood alcohol content.

So let’s make this perfectly clear. We have a hearing officer, who is not a lawyer or a judge or a scientist, disregarding an expert’s testimony which based on scientific fact. In fact, the DMV hearing officer doesn’t even need to have a bachelor’s degree, yet they are entrusted with determining the facts which they are the proponents of.

An appellate court sided with the DMV.

The California Supreme Court ruled that the circumstantial evidence that the officer provided was relevant to determining whether the Coffey was at a 0.08 percent blood alcohol content or above. It, however, cautioned against widely using the evidence to discredit expert testimony.

“This is basically the first case to say, ‘Yes, hearing officer, you can consider this evidence, but be careful not to go too far.’ It has to be reasonable, you can’t just exclude expert testimony,” said Coffey’s DUI defense attorney, Chad Maddox. “They said it should be look at on a case-by-case basis.”