Monthly Archives: April 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.
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.
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.”
A new study published in the American Journal of Public Health suggests that raising the taxes on alcohol could reduce the number of drunk driving related collisions.
Researchers from the University of Florida studied the results of a 2009 tax increase on alcohol in the state of Illinois. In that year, the state increased its excise tax on beer by 4.6 cents a gallon, on wine by 66 cents a gallon and on distilled spirits by $4.05 a gallon, or by 1 cent more that consumers pay per glass of beer or wine and nearly 5 cents more for a serving of spirits.
According to the researchers, alcohol-related traffic deaths in Illinois fell 26 percent. The decrease was higher among young people, at 37 percent. Fatal crashes involving alcohol-impaired and extremely drunk drivers fell 22 percent and 25 percent, respectively.
"Similar alcohol tax increases implemented across the country could prevent thousands of deaths from car crashes each year," Alexander Wagenaar, a professor in the Department of Health Outcomes and Policy at the University of Florida, said in a university news release. "If policymakers are looking to address dangerous drivers on our roads and reduce the number of fatalities, they should reverse the trend of allowing inflation to erode alcohol taxes.”
Wagenaar’s comments reflect the study’s observation that alcohol has become less expensive in recent years as the result of a decrease in alcohol tax rates. The study notes that having 10 or more drinks a day would have costs the average person approximately half of their disposable income in 1950. Modernly, however, having 10 or more drinks a day would cost the average person about three percent of their disposable income.
"This goes against the conventional wisdom of many economists, who assert that heavy drinkers are less responsive to tax changes, and has powerful implications for how we can keep our communities safer," said Wagenaar.
As with many studies, you have to ask yourself, “Is this a true cause and effect situation?”
U.S. News reported that David Ozgo, vice president for economic and strategic analysis for the Distilled Spirits Council of the United States, had the same question. According to Ozgo, fatal collisions involving alcohol were decreasing before the tax increase.
“In fact, the largest annual decline over the last eight years occurred in 2008, the year before the tax rate changed,” he said. “Importantly, Illinois alcohol-related traffic fatalities declined faster than the national average before the tax increase and this has not been the case since the tax increase.”
Ozgo’s observation makes us wonder whether it really is the tax that is causing the decrease in DUI related fatalities in the state.
Think about the averages alcohol abuser. Is the rather trivial increase in alcohol taxes mentioned above really going to stop someone from purchasing the alcohol? Is it going to keep them from driving after drinking?
A Kansas Court of Appeals ruled that a trial court incorrectly suppressed evidence because, although it was illegal for the officer to obtain it without a warrant, the officer acted in good faith in obtaining it.
In 2008 Kansas enacted a law which allowed law enforcement to conduct a warrantless search in drawing blood from someone who was involved in an accident that resulted in serious injury or death. In other words, according to the law, the mere involvement in a traffic violation which led to injury or death constituted the probable cause to allow officers to obtain blood without a warrant to determine if the person was driving drunk.
A traffic violation resulting in injury or death does not, by itself, constitute probable cause that a person is driving drunk.
In State vs. Declerck, a 2014 case, the Kansas Supreme Court held the law to be “unconstitutional to the extent it requires a search and seizure absent probable cause the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol.
“We are acutely aware the statute in question attempts to address the terrible toll impaired drivers inflict on our state’s highways, but we are reminded of the ‘truism that constitutional protections have costs,’” said the Declerck court citing the United State Supreme Court ‘s decision in Coy v. Iowa.
In February of 2012, Troy Meitler was involved in an accident in Reno County, Kansas where a person was killed. A Kansas Highway Patrol trooper obtained blood from Meitler while he was unconscious and receiving emergency medical treatment. Meitler was charged with involuntary manslaughter, aggravated battery and driving under the influence of drugs.
The trial court judge, however, suppressed the blood evidence because the trooper did not have probable cause to believe Meitler. In suppressing the evidence, the trial court cited the Declerek decision.
Prosecutors appealed the trial court’s decision to suppress the blood evidence.
The Kansas Court of Appeals reversed the trial court’s decision. Two of three appellate judges held, “we are unable to conclude that on February 10, 2012 (the day of the accident), a reasonable law enforcement officer should have known that (the 2008 Kansas statute) was unconstitutional. The district court’s contrary legal conclusion finding that the good-faith exception did not apply in this case was error.”
The dissenting judge acknowledged that evidence generally could be admitted when police officers acted under an existing law that eventually is found to be unconstitutional. However, Judge Gordon Atcheson, cited the Supreme Court, in pointing out that an officer’s good faith reliance does not apply “if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws.”
“State legislatures may not override decisions of the United States Supreme Court construing federal constitutional rights by passing statutes designed to thwart those decisions and dilute those rights,” Atcheson wrote. “That is a fundamental precept of our system of governance integrating the dual sovereignty of state and federal authorities.”
Atcheson is exactly right. This, unfortunately, was lost on the majority of the court.
There is no question that the law was unconstitutional. And there’s no question that the officer was relying on it.
However, as I read about Meitler’s appeal, I wondered how we even got to this point. Shouldn’t those entrusted with creating laws that affect citizens so significantly have at least a fundamental understanding of the Constitution? One would think.
At the time the officer drew the blood, the law had not yet been officially deemed unconstitutional. So only slightly less culpable than the legislature is the trooper. As the authority who enforces the laws that the legislature enacts, I would like to think that the trooper questioned whether he actually had probable cause to believe that Meitler was under the influence. Although I doubt it.