Archive for November, 2014

Smoke a Joint and Get Busted for DUI…a Month Later?

Wednesday, November 26th, 2014

How far have we gone in the continuing politically-correct War on Drunk Driving?  How about throwing citizens in jail for driving a car — days, weeks or even months after taking drugs or smoking marijuana?  

Sound ridiculous?


Reformers: Trace Law Unfairly Punishes Drug Users Who Are Not DUI

Proponents are championing legislation to eliminate harsh penalties for drivers who had traces of illegal drugs in their system but were not driving while impaired.

March, 2011.  Chicago, IL.   About a year ago, a 20-year-old Pekin man ran a stop sign, and the ensuing accident killed his passenger. The driver, Brock Meerseman, had marijuana in his system from having ingested the substance a week or more earlier, according to a blood test done at the hospital after the accident.

There was no indication that he was impaired at the time of the accident. Still, under a provision of the Illinois DUI law, Meerseman was cited with driving under the influence and found guilty of aggravated DUI. He faced a sentence of up to 14 years in prison. Had he instead been charged with reckless homicide, the maximum prison sentence would have been three years…

Meerseman is not alone. Many pot-smoking drivers have been charged under the DUI provision. Jeff Hall, a Peoria attorney and member of the ISBA Traffic Laws and Courts Section Council, represented a teenager who had traces of THC in her system from having smoked marijuana earlier. But she was not impaired when she was involved in an accident that resulted in one death and one injury.

“She was sentenced to six years and she has to serve 85 percent of the time,” said Hall, who helped draft an amendment to the DUI law that would eliminate such harsh penalties for drivers who are not impaired at the time of an accident. Tests show that the effects of marijuana typically last a couple of hours, even though the presence of the drug shows up in test results for as long as a month or more.

The National Highway Traffic Safety Administration (NHTSA) acknowledges that THC levels are “impossible” predictors of behavioral impairment and that THC-induced impairment is relatively short-lived, Hall said. In addition, the NHTSA states that “it is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations” (see the report at http://www.nhtsa.gov/People/injury/research/job185drugs/cannabis.htm).

The ISBA and other groups want that provision of the law, which was upheld in a 2011 Illinois Supreme Court ruling, removed. According to an ISBA position paper in support of the proposal, “Under the current Illinois Vehicle Code, a driver who is not impaired is still guilty of a DUI offense or aggravated DUI offense if there is any trace of an unlawful drug in their blood or urine. So, if a driver smoked marijuana two weeks before an accident, it is still a crime even though a urinalysis can’t test for active THC metabolites, and the driver showed no evidence of impairment….This isn’t good policy.”


Is there any rational reason for such laws — other than for politically-correct legislators to look tough to voters?  What is accomplished (other than breeding contempt for the legal system) by throwing a person in jail for driving a car weeks after using a drug?
 

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How Many DUI Arrests Are There in a Year?

Tuesday, November 18th, 2014

 In the "Did you know…?" department, we’ve been getting a lot of traffic and inquiries concerning the "DUI Statistics" section of my DUI defense law firm’s website.  A brief sampling of interesting facts and figures:


- How many drivers were arrested in the U.S. for DUI in 2010?   (1.41 million) 

- What was the estimated number of times drivers drove drunk in 2010?  (112 million)

- How many drunk driving arrests were there in California in 2010?   (195,879)

- What percent of DUI arrests were of women?   (22.4%)

- What is the median age of drivers arrested for DUI?   (30 years old)

- What percent of DUI offenders originally convicted in 1994 reoffended at least once by 2010?   (31%)

- Statistically, what is your chance of being involved in a DUI accident in your lifetime?   (33%) 


For further interesting facts and statistics concerning drunk driving in the United States, visit our website at California’s Premier DUI Defense Attorneys.
 

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Should I Take a Breath or a Blood Test?

Monday, November 17th, 2014

One of the most common questions I get as a DUI defense attorney is “Should I have taken a breath test or a blood test?” As with many questions in DUI law, the answer is, “It depends.”

Just to be clear, I’m talking about a breath or blood chemical test required under California’s implied consent law. This does not include the pre-arrest preliminary alcohol screening test. Although a breathalyzer, the “PAS” test is not a chemical test and is not required under California law. The chemical test, on the other hand, can either be a breath or a blood test and is required under California law once a person is lawfully arrested on suspicion of a California DUI.

The DUI blood test is much more accurate than the DUI breath test. The blood test is far less likely than a DUI breath test to produce a false reading. Another benefit of a DUI blood test is that a sample of the blood is saved for future testing by the DUI suspect’s defense attorney. The defense attorney can have the sample tested by its own blood analyst to contradict the results of the prosecutor’s analyst. This is called a “blood split” and it is commonly used in DUI defense.

Having said that, the blood test can still be subject to scrutiny. See my previous post: http://ltduiblog.wpengine.com/2014/09/15/the-dirty-skin-defense/

In other words, the blood test may be good for someone who is under the legal limit because it is more accurate. The blood test might be bad for someone who is over the legal limit because it is more difficult to refute the accuracy.

The DUI breath test, on the other hand, is far less accurate than the DUI blood test. Breath tests can provide false readings for a number of reasons. See Lawrence Taylor’s post: http://ltduiblog.wpengine.com/2014/09/09/are-breathalyzers-accurate/

While California defense attorneys cannot challenge the unreliability of breathalyzers on a general basis, they can provide evidence that the particular breathalyzer used on the DUI suspect was inaccurate.

The breath test may be good for someone who is over the legal limit because it is easier for a California DUI attorney to refute the results. However, many people who are actually under the legal limit may test over because of the breath test’s inaccuracies.

If you are fairly confident that your blood alcohol content will below the legal limit of 0.08 percent, you’re probably better off opting for the blood test because it will accurately show that you were, in fact, under the legal limit. However, if you think there is a chance that you could be above the legal limit, you might be better off opting for a breath test so that your attorney can challenge the results if you test above the legal limit.

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How Not to Deal with a DUI Bust

Thursday, November 13th, 2014

As a DUI defense attorney, I’m often asked at cocktail parties what to do if you’re stopped or arrested for a DUI.  While I can certainly offer helpful advice on this subject, the following procedure is probably not one I would recommend….


Troopers Arrest Man for Trying to Eat DWI Test

Tarrytown, NY.  Nov. 11 – A 40-year-old man is facing multiple charges after New York state police say he tried to eat his DWI test results.

Troopers say Kenneth Desormes, of Greenwich, Connecticut, was stopped for speeding on Interstate 95 at 5:30 a.m. Sunday. After speaking with him, the troopers determined he was intoxicated and arrested him.  Desormes was transported to the state police barracks in Tarrytown to be processed. Police say that Desormes was found to have a blood alcohol content of 0.13%.

Troopers say when his breathalyzer tests results were printing, Desormes grabbed the paperwork and tried to eat it.

Desormes is charged with driving while intoxicated, obstructing governmental administration, and criminal tampering…


"Candid Camera" would kill for the videotape….
 

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DUI Charges Dismissed for Driver Who Ran a Yellow Light

Monday, November 10th, 2014

I’m always pleased when I read about the court and prosecutors recognizing that police must adhere to the Constitution in investigating crimes. I can say with first-hand knowledge that this, unfortunately, is a rare occurrence for many individuals arrested on suspicion of DUI. Jesse R. White of Charleston, Illinois who was arrested and charged with driving under the influence is one of the lucky few where justice prevailed.

White was stopped because, according to the arresting Eastern Illinois University police officer, he ran a red light. The traffic stop led the officer to believe that White was driving under the influence. And, in fact, White was subsequently arrested for felony drunk driving charges because White had suffered prior DUI convictions. 

In one of my first posts for duiblog.com, I explained why I unreservedly agree with law enforcement equipping squad cars with “dash-cams.” The article can be found here:  http://ltduiblog.wpengine.com/2014/04/25/the-use-of-dash-cams-in-dui-stops-2/. The gist of it is that dash-cams (also called MVARS) are an objective capturing of the evidence, unlike the arresting officer’s memory of the events. What’s more, unlike officers, dash-cams can’t lie.

Fortunately for White, the officer who arrested him had a dash-cam attached to his vehicle. A review of the dash-cam video revealed that White had actually run a yellow light, not a red light as the officer had claimed. As such, the officer had absolutely no reason to pull White over.

The United States Supreme Court has held that law enforcement can initiate a traffic stop if they have reasonable suspicion, based on specific and articulable facts, to believe that an offense has occurred. In fact, on several other occasions, the United States Supreme Court has even held that where an officer has observed a traffic violation, the higher standard of probable cause is met.

Without reasonable suspicion, the traffic stop is illegal and any evidence obtain as a result of the illegal traffic stop is inadmissible as evidence.

Because White had only run a yellow light, not a red light, the arresting officer had no reasonable suspicion that White had committed any offense, thus making the stop illegal. Therefore, the evidence obtained as a result of the illegal stop, presumably the telltale signs of intoxication (bloodshot eyes, distinct odor or alcohol, slurred speech), are inadmissible in a DUI trial.

White’s attorney filed a motion to suppress the evidence arguing exactly this.

At the hearing on the motion to suppress the evidence, the judge dismissed the charges against White after the prosecutor, Coles County State’s Attorney Brian Bower, viewed the dash-cam footage and agreed with the motion.

While Bower was correct in agreeing with the motion, he was wrong in justifying the officer’s stop of White’s vehicle. According to Bower, the officer didn’t do anything wrong and likely saw the red light after it had changed from yellow.

Okay, so either the officer made a mistake or was lying about the red light. Either way, at trial the officer would have testified that White had run the red light. Without other evidence, like a dash-cam, how else are we to determine whether White ran the red light? Unfortunately, we can’t.

How many others have been stopped or arrested when the officer was mistaken, or worse, lied about whether a traffic violation occurred?

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