Monthly Archives: June 2014

U.S. Supreme Court Bans Scientific Evidence of Breathalyzer Inaccuracy

Yesterday, our Supreme Court handed down a ruling which has to be one of the most blatant examples of policy and political expediency over truth and justice I’ve confronted in 44 years of law practice….

U.S. Supreme Court Rejects Challenge to DUI Machines

Washington, D.C.  June 23 – The U.S. Supreme Court on Monday rejected a motorist’s challenge to the reliability of the machines used in California to test the blood alcohol content of drivers.

The justices, without comment, denied review of a state Supreme Court ruling in November that concluded that the machines are accurate and can be used to determine whether a driver’s blood alcohol was over the legal limit of .08 percent.

The state court noted that the devices have been studied by the Legislature and certified by the U.S. Department of Transportation. The ruling meant that the defense can’t present testimony from scientists who contend that breath-testing machines are inherently unreliable, although a defendant can try to show that a particular machine was defective or was used improperly, the court said.

The case comes from San Diego County, where Terry Vangelder was stopped by a highway patrolman in December 2007 after driving his pickup truck at speeds of more than 125 mph. With Vangelder’s consent, the officer administered two breath tests that registered .095 and .086 percent.

At Vangelder’s trial, the defense offered testimony by Michael Hlastala, a University of Washington professor of medicine and physiology. He said breath-testing machines are unreliable because they measure the content of exhaled air, which can be affected by the rate of breathing and other variables, rather than air that is deep in the lungs and closer to the bloodstream.

A trial judge ruled the testimony speculative and largely inadmissible. Vangelder was convicted of speeding and driving with an excessive blood alcohol level and fined nearly $2,000.

Vangelder’s lawyer, Charles Sevilla, said Monday he was disappointed that the U.S. Supreme Court had refused to take up the case. The California ruling was “unduly trusting in the infallibility of government testing of these machines,” he said.

Try to forget for a moment that you think drunk drivers should all be punished severely.  None of us wants drunk drivers on the road.  None of us.  But at what cost?  Banning scientific truth?  Denying the right to a fair trial?  Convicting innocent people?  

Think about what the Court is saying….

Beaurocrats at the Department of Transportation (with a political agenda but no scientific knowledge) and state politicians (anxious to be mollify MADD and be re-elected) decide that these breathalyzers are foolproof.  Therefore, their decisions can’t be contradicted in a court of law by a citizen accused of a crime based almost entirely on the accuracy and reliability of the machine.  In other words, these political hacks are more knowledgeable than Dr. Michael Hlastala — a professor at the University of Washington School of Medicine and probably the foremost expert in the U.S. on breath alcohol analysis.

Welcome to our cirminal justice system and the “War on Drunk Driving”.

Marijuana Breathalyzer in the Offing?

With marijuana legalization making as much progress as it has in the last few years, it was only a matter of time before someone developed a marijuana breathalyzer. It seems a former Royal Canadian Mounted Police is close to doing exactly that.

The new device called the Cannabix was developed by Kal Malhi and will be able to detect whether a person has smoked marijuana in the last two hours. The Cannabix supposedly works in a manner similar to that of traditional breathalyzers used by law enforcement to determine the blood alcohol content of drivers.

“People are becoming very afraid to drink and drive nowadays because they feel that they will get caught and charged, but they’re not afraid to drug and drive because they don’t feel that law enforcement will do anything about it,” said Malhi.

Although the Cannabix is pending a patent and still has further field testing to undergo, it’s a step in the direction long awaited by law enforcement: a bright line test for DUI of marijuana.

States which have legalized recreational marijuana and some states which have legalized medical marijuana have established a per se impairment level at 5 nanograms of THC per milliliter of blood. Ohio and Nevada have established a per se limit of 2 nanograms of THC per milliliter of blood. Some states which allow medical marijuana have established a zero tolerance rule.

You’ve heard me hoot and holler about the flaws of such standards. THC can stay in a person’s system for over a month. A month after smoking marijuana, the “high” is long gone but, unfortunately, the THC is not. Yet these standards allow officers to arrest someone even though they are no long impaired.

As promising as something like the Cannabix looks to law enforcement, it too does not determine how impaired a person is after smoking. Sure, proximity in time to the smoking of marijuana certainly has a correlation to degree of impairment. (Remember, the Cannabix will tell officers if a person has smoked within the last two hours) We still don’t know how much someone has smoked or how impaired a person is two hours after smoking.

The purpose of alcohol and marijuana DUI laws are to prevent impaired driving. Being impaired is what makes our streets dangerous, not whether someone has smoked marijuana at a given point in the past. The Cannabix creates a DUI standard of how long it’s been since someone has smoked, not whether they are actually impaired.

Imagine if we had the same standard for alcohol: You have one beer at dinner. You drive home an hour and a half later. For whatever reason, you’re pulled over and given a breathalyzer. The breathalyzer tells the officer that you’ve ingested alcohol in the last two hours. Although you’re clearly not impaired after one beer, you’re arrested for DUI simply because you’ve had something to drink in the last two hours.


DUIblog Named One of “101 Great Criminal Justice Sites”

I am proud to announce that "Lawrence Taylor's DUI Blog" has been chosen by Criminal Justice Degree as one of "101 Great Sites to Bookmark".  

The educational organization's excellent and informative criminal justice blog "is an online resource for students, prospective students, working professionals, and other visitors with an interest in the field of criminal justice".

The California Wet Reckless

In speaking with many people who have been charged with a DUI throughout the course of my career, it became very apparent early on that there were a lot of misconceptions as to exactly what a “wet reckless” actually was and what it entails.

The “wet reckless” is the first of several reductions that can be offered by a prosecutor in a California DUI case. A wet reckless is usually offered when the blood alcohol content of a DUI defendant is close to 0.08 percent or the prosecutor realizes that their case leaves something to be desired. Rather than risk going to trial and losing, prosecutors offer the wet reckless to secure the conviction.

So we know what the benefit is for the prosecutor. What’s in it for the DUI defendant?

First off, it’s not a DUI conviction. When someone pleads guilty or no contest to a wet reckless, they’re actually pleading guilty or no contest to California Vehicle Code section 23103 pursuant to 23103.5. These codes essentially provide that a person is actually pleading guilty or no contest to a charge of reckless driving involving alcohol.

The wet reckless is unique in that it cannot be charged, but only offered as a reduction of a California DUI.

Unlike a DUI, there are no mandatory sentencing enhancements for a wet reckless conviction. Following a first-time DUI conviction, each subsequent DUI conviction within a 10-year period carries enhanced mandatory minimum jail sentences; 96 hours for a second DUI, 120 for a third. However, if a subsequent DUI charge is eventually reduced to a wet reckless, there is no mandatory minimum jail sentence.

Having said that, a wet reckless does, however, count as a “prior” to enhance the mandatory sentencing enhancements for subsequent DUIs. In other words, if a person is convicted of a wet reckless and then subsequently convicted of a DUI within 10 years, the wet reckless can be used to make the DUI a “2nd,” thus providing for a mandatory minimum jail sentence of 96 hours.

A wet reckless carries a lesser jail sentence that a DUI. A California DUI carries a maximum six-month jail sentence, whereas a wet reckless carries a maximum 90-day maximum jail sentence.

There is no automatic suspension of a driver’s license with a wet reckless conviction. When someone is found guilty of a California DUI, their license is automatically suspended. This is not the case when someone pleads guilty or no contest to a wet reckless. Although there may be no suspension stemming from the conviction, the DMV may still issue a suspension if the person loses their DMV hearing. Therefore, in order for someone who is eventually convicted of a wet reckless to keep their license, they must also win their DMV hearing.

The wet reckless also usually carries a shorter probation period, a smaller amount in fines and fees, and a shorter DUI school.

The California wet reckless is often a good alternative to a California DUI conviction, and now, at least, you’ll know exactly what it is.

The Necessity Defense

What do you do if you've been drinking too much…and are suddenly confronted with a dangerous situation — possibly a threat to your life?  You try to escape, of course.  But what if the only way to escape is…to jump in your car and flee?

Minneapolis, MN.  June 1 – On Memorial Day weekend 2011, Jennifer Axelberg and her husband, Jason, argued after a night of drinking at a resort. He turned violent, hitting her twice and breaking her car’s windshield after she locked herself in it. She then drove away, about a mile back to the resort. He pursued, and both were soon arrested — she for drunken driving after testing at double the legal blood-alcohol limit.

Axelberg’s driver’s license was revoked. She appealed, saying she should be able to plead “necessity” — a traditional common-law defense.

But writing for the majority, Chief Justice Lorie Skjerven Gildea held that the necessity defense is not available to Axelberg under Minnesota law. The Legislature, Gildea said, has explicity limited the issues courts may consider in an appeal of license revocation — and necessity isn’t one of them…

Three justices dissented emphatically. Each wrote separately and joined the dissents of the others. In what constitutes strong language for this often courteous court, they called the majority’s ruling “stingy” and “slavish” and satirized it as meaning that “losing the privilege to drive is a small price to pay for saving your life.”

Judicial review should not be “mechanical,” they argued, but “a place where justice can be done.”…

So….confronted with such a situation, what would you do?  Drive away and be prosecuted for drunk driving?  Or stay…and get beaten up — or worse? 

The "necessity" defense is a tradiional common law doctrine that can be summarized as:  "A defense that permits a person to act in a criminal manner when an emergency situation, not of the person's own creation, compels the person to act in a criminal manner to avoid greater harm from occurring."       

Sounds reasonable…except, apparently, in MADD's "War on Drunk Driving".

(For a further discussion, see my post The Necessity Defense to DUI.)

(Thanks to Joe.)