Daily Archives: January 13, 2017
We pride ourselves in this country on our Constitution and the protections it gives us from the abuses of Big Government. Perhaps most prominent of these rights is the "presumption of innocence", and the associated right not to have our freedoms or property taken without due process of law.
Except in drunk driving cases…
As I’ve written ad nauseum in the past, there is clearly a DUI Exception to the Constitution in our criminal justice system — and has been for many years. See, for example, The Disappearing Right to Jury Trials…in DUI Cases, Another DUI Exception to the Constitution and The DUI Exception Continues.
If you need any examples of this, just consider the following news article published online this morning….
Federal Appeals Court Upholds Ferrari Confiscation
Suffolk County, NY. Jan. 13 – The Second Circuit US Court of Appeals upheld the government’s confiscation of James B. Ferrari’s Ferrari in a ruling last week. Officials in Suffolk County, New York had grabbed the 2003 Ferrari Modena coupe, valued at $95,000, after Ferrari was stopped and accused of driving under the influence of alcohol (DUI) on May 26, 2009.
A police officer saw the Ferrari allegedly reaching speeds over 100 MPH on South Country Road in Bellport. Ferrari was arrested and his Ferrari confiscated under the state’s drunk driving statute. Ferrari’s attorney argued the Due Process clause of the Constitution required the exotic automobile be returned after his client posted a bond — at least while the charges were being litigated in court. At that point, Ferrari had not be found guilty of any crime. Ferrari’s attorney insisted that it was the county’s burden to prove the seizure was the only possible remedy to the situation, and a judge and jury both agreed. They ordered the county to pay $95,000 to Ferrari to compensate for the loss of his automobile.
A three-judge appellate panel overturned that judgment in last week’s decision, pointing to Ferrari’s long and sordid history of serious driving offenses, including past DUIs…
"Indeed, if the ultimate forfeiture of a car may validly serve the purpose of preventing this forfeited item of property from being further used as an instrumentality of crime, it is not evident why retention pendente lite [i.e. while litigation is pending] cannot serve, in at least some circumstances, a similar purpose," Judge Debra Ann Livingston wrote for the Second Circuit…
So before the defendant was ever convicted of any crime, his car (not incidentally worth a lot of money to local government authorities) was confiscated by the government. Maybe I’m missing something, but isn’t there a presumption of guilt being applied here? And isn’t the appellate judge basically saying, "Yes, you are presumed not to have been driving drunk — and we’re going to confiscate your car so that you don’t do it again"?
(Thanks to Joe.)
A recent decision by the Arizona Court of Appeals held that medical marijuana patients who have been arrested for driving under the influence of marijuana can fight the charges by arguing that they were not stoned enough to drive.
In 2013 Nadir Ishak was stopped by Mesa police when they saw his vehicle drift into another lane. The officer who arrested Ishak testified that Ishak admitted to using marijuana that morning and that his eyes were bloodshot and watery.
It was later determined that Ishak had a concentration of 26.9 nanograms of tetrahydrocannabinol (THC) per milliliter of blood.
Ishak was charged with driving while impaired and driving with marijuana in his system. During trial, Ishak wanted to inform the jury that he possessed a state-issued medical marijuana card at the time of his arrest. The trial judge, however, denied his request. The trial judge also determined that Ishak bore the burden of proving that he was not under the influence. Ishak was subsequently convicted and sentenced to 90 days in jail.
Ishak appealed arguing that the denial prevented him from having a fair trial.
The Arizona Court of Appeals, in a 2-1 decision, agreed with Ishak and concluded that the jury should have been made aware that Ishak was medical marijuana user. Additionally, the court also concluded that prosecutors, not defendants, must prove that a medical marijuana license-carrying driver was actually under the influence of the marijuana, not merely driving with the drug in their system.
In 2010, Arizona voters approved the Arizona Medical Marijuana Act which does not absolve stoned drivers from being charged for driving under the influence of marijuana. However, the Act also said that a medical marijuana user cannot automatically considered under the influence of the drug “solely because the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.”
What’s more, the Arizona Supreme Court in 2015 held that medical marijuana users charged with a DUI can argue “that the concentration of marijuana or its impairing metabolite in [his or her body] was insufficient to cause impairment.”
The prosecutor in Ishak’s case argued that the Arizona Medical Marijuana Act requires medical marijuana users who are arrested on suspicion of driving under the influence prove through expert testimony that the THC in their system was insufficient to cause impairment. He also argued that it is irrelevant whether Ishak was actually impaired.
What ever happened to the fundamental canon of American criminal jurisprudence, “innocent until proven guilty?” Although I can’t say that it surprises me that a DUI prosecutor would actually argue “guilty until proven innocent.”
Fortunately, however, Arizona Appellate Judge Diane Johnson, who wrote for the majority, disagreed with the prosecutor.
"Nothing in the statute … requires a cardholder to present expert testimony (or precludes a cardholder from offering non-expert testimony) on the question of whether the cardholder was impaired due to THC,'’ wrote Johnson. "And, according to evidence here, there is no scientific consensus about the concentration of THC that generally is sufficient to impair a human being.”
I’m happy to say Judge Johnson got it right.