Monthly Archives: August 2019
According to the California Highway Patrol, the number of arrests for driving under the influence of marijuana has increased since recreational marijuana in California became legal in 2018. Yet, determining when someone is under the influence of marijuana to a degree that makes them incapable of safely operating a motor vehicle remains as difficult as it always has been…or has it?
California Vehicle Code section 23152(f) makes it “unlawful for a person who is under the influence of any drug to drive a vehicle.”
Quite clearly, marijuana is a drug even if it is recreational. Whether a transportation device qualifies as a “vehicle” for purposes of this law is a different subject for a different day. The bigger question, however, is whether someone is “under the influence” after having smoke marijuana.
To be “under the influence” as the result of consuming marijuana, a person must have his or her mental or physical abilities so impaired that he or she is unable to drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.
While this definition might sound nice, it is still difficult to determine how much marijuana an individual must consume before they are so “high” that they are unable to drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.
Unlike alcohol, there is little correlation between the amount of marijuana someone has consumed and how impaired a person is.
Alcohol is water soluble, which means that it enters and leaves the bloodstream fairly quickly. Additionally, a person’s blood alcohol content, which can be determined rather quickly and accurately, has scientifically been shown to correlate with how drunk (i.e. impaired) someone is. Every state, with the exception of Utah, has a blood alcohol content limit of 0.08 percent because, generally speaking, that is the point at which alcohol begins to affect a person’s motor skills, thus making them “under the influence” for purposes of a DUI with alcohol.
THC (tetrahydrocannabinol), the psychoactive component to marijuana, on the other hand, is fat soluble. Therefore, unlike alcohol, it can stay in a person’s system for much longer than alcohol. In fact, regular users of marijuana can still have THC in their systems weeks after having consumed marijuana and certainly long after being high, which necessarily means that it cannot and should not be used to determine how high someone is, and whether they are “under the influence.” Yet, current blood tests only detect the amount of THC in a person’s system, but there is no way to determine how “high” someone is.
Oakland based Hound Labs is trying to change this by creating the first breathalyzer to measure “recent” marijuana and alcohol use on the breath.
“When you can you find THC in breath, and that can require some incredibly sensitive tools, but when you can find it, then you know that the person used very, very recently,” said Dr. Mike Lynn, emergency room physician, reserve deputy sheriff, and founder of Hound Labs.
Working in conjunction with UCSF, Hound Labs determined that THC can be found on a person’s breath.
“We found THC in all twenty test subjects, and what was really interesting, is that the THC peaked at about 15 minutes, and then it went out of the breath within 2 to 3 hours,” said Dr. Lynn.
According to Dr. Lynn and Hound Labs, if THC is found on the breath, it means that a person had smoked within the last few hours. They also determined that the first two to three hours following marijuana consumption is when a driver is at the greatest risk for being impaired.
Hound Labs were granted $30 million in funding to continue to develop and manufacture the marijuana breath test to be used by law enforcement by the end of the year.
While it may be a step in the right direction in finding the elusive answer to the question, “When is someone too high to drive?” issues remain. When Hound Lab’s device detects that someone consumed marijuana “recently,” how recent is it? Does “recent use” account for even negligible amounts of marijuana consumption? Will “recent use” change the way we draft our DUI of marijuana laws?
Bottom line is that, before we get too carried away, we need to make sure that whatever safeguard and/or preventative measures we put in place to stop high drivers do not infringe on the rights of people who consume marijuana safely and lawfully.
Law enforcement agencies throughout Southern California will increase their efforts to thwart would-be drunk drivers this month and on into the Labor Day weekend. One tool I know they plan on using during this time is the DUI checkpoint.
According to the National Highway Traffic Safety Administration (NHTSA), Labor Day weekend is one of the deadliest holidays of the year when it comes alcohol-related collisions. In 2017, there was 376 deadly crashes nationwide for the Labor Day holiday period which ran from September 1st to September 5th. Of those 376 deadly collisions, more than one-third (36%) involved drunk drivers.
Last year, California saw two deaths and 31 injuries on Labor Day.
Since there is an increased chance of getting stopped at checkpoint in the next couple of weeks, it makes sense to remind our readers what their rights are when it comes to a California DUI checkpoint.
The 4th Amendment of the United States Constitution requires that officers have probable cause and a warrant before they can seize and/or search a person. Well, what is a checkpoint? It is certainly a seizure since the police are stopping people on the roads when they would otherwise be free to drive without interruption. It may be also a search if the law enforcement has drivers take a breathalyzer since by doing so they are looking for evidence of drunk driving.
So, checkpoints can involve both searches and seizures, yet police don’t have warrants to stop and breathalyze drivers. How?
In the 1987 case of Ingersoll v. Palmer, the California Supreme Court set forth guidelines to ensure the constitutionality of checkpoints in California such that law enforcement doesn’t need a warrant. Those guidelines are:
- The decision to conduct checkpoint must be at the supervisory level.
- There must be limits on the discretion of field officers.
- Checkpoints must be maintained safely for both the officers and the motorists.
- Checkpoints must be set up at reasonable locations such that the effectiveness of the checkpoint is optimized.
- The time at which a checkpoint is set up should also optimize the effectiveness of the checkpoint.
- The checkpoint must show indicia of official nature of the roadblock.
- Motorists must only be stopped for a reasonable amount of time which is only long enough to briefly question the motorist and look for signs of intoxication.
- Lastly, the Court in the Ingersoll decision was strongly in favor of the belief that there should be advance publicity of the checkpoint. To meet this requirement law enforcement usually make the checkpoints highly visible with signs and lights.
Three years later in the case of Michigan Department of State Police v. Sitz, the United States Supreme Court held that the state’s interest in preventing drunk driving was a “substantial government interest.” It further held that this government interest outweighed motorists’ interests against unreasonable searches and seizures when considering the brevity and nature of the stop. In doing so, the court held that sobriety checkpoints were constitutional even though officers were technically violating the 4th Amendment (because they don’t have a warrant when they seize and search motorists at DUI checkpoints).
Now that we’ve determined that sobriety checkpoints are constitutional, I would be remiss if I did not tell you what your rights and obligations are, as the driver, should you happen to find yourself stopped at a sobriety checkpoint.
Based on the last of the Ingersoll v. Palmer requirements, checkpoints must be highly visible. As a result, drivers are often aware of the checkpoint before they drive up to it. Believe it or not, drivers are allowed to turn around so as to avoid the checkpoint. They, however, must do so without breaking any traffic laws such as making an illegal U-turn.
If you do not turn away, but rather pull up to the checkpoint, the officer might first ask you some questions such as: Where are you coming from? Where are you going? Have you had anything to drink?
The 5th Amendment to the Constitution gives you the right not to say anything to law enforcement ever. And don’t! Invoke your right to remain silent by telling the officer, “I would like invoke my 5th Amendment right and respectfully decline to answer any of your questions.” Now keep your mouth shut until given the opportunity to call your attorney.
Surely this is not going to sit well with the officer. They may, at that point, have the driver exit the car and request that they perform field sobriety tests. Drivers should absolutely decline to perform the field sobriety tests. They are an inaccurate indicator of intoxication, but fortunately they are optional. I and many other people would have trouble doing them sober.
At this point, the officer is likely fuming, but who cares? You are exercising your constitutional rights.
As a last-ditch effort, they may request that you take a roadside breathalyzer commonly referred to as a “PAS” (preliminary alcohol screening) test. Under California’s implied consent rule, as a driver, you must submit to a chemical test after you have been arrested on suspicion of a DUI. The key word is “after.” Therefore, when you happen upon a checkpoint and the officer requests that you to take the PAS test, you can legally refuse. If, however, the officer has arrested you on suspicion of DUI you must submit to either a blood test or a breath test.
This Labor Day be on the lookout for sobriety checkpoints. But should you find yourself about to drive through one with no way to legally turn around, know your rights and use them. That’s what they’re there for.
Anyone who has known someone that has been convicted of a DUI, or who has themselves had the unfortunate experience of suffering the consequences of a DUI, might know that there is the possibility of a obtaining a restricted license during the period of time where driving privileges are suspended. While driving privileges might be restricted during this time, a driver can still drive to and from work with a restricted license.
If a law enforcement officer happens to get caught for a DUI, wouldn’t we expect to hold the officer to the same standard as the rest of us drivers, possibly even a higher standard?
I bring this up because a police officer from Melbourne, Florida is now back behind the wheel of her police cruiser after having been charged with DUI while off duty back in September.
Audrey Poole of the Melbourne Police Department was pulled over for driving 20mph above the speed limit in Palm Bay. Her arrest affidavit as well as a statement from the arresting officer indicates that her eyes were bloodshot, and she smelled of alcohol even before she attempted field sobriety tests. She allegedly failed multiple field sobriety tests and refused to submit to a breathalyzer test, which led to her arrest. The interaction was even caught on dashboard camera footage.
Poole had been working in dispatch since 2012 and was hired as an officer in March 2018. After the arrest, she was suspended for a week without pay, then was placed on administrative leave with pay until Nov. 12th and was assigned desk duty. Under Florida law, she automatically lost her license for one year for refusing a chemical test. A month after the arrest, the state attorney’s office dismissed the DUI charge. According to Assistant State Attorney Leo Domenick, “Although there is sufficient evidence of probable cause for the arrest, based on the lack of a breath (Blood Alcohol Concentration) test, combined with the defendant’s performance on the field sobriety exercises, there is no reasonable likelihood of success at a jury trial.” After two months, Poole was reinstated and allowed to drive a Melbourne police cruiser under a “business purpose only” license which allows her to drive during her on duty hours.
Following the dismissal of charges, she was disciplined for multiple department violations, including conduct unbecoming of an officer, non-compliance with the law, and unlawful consumption of alcohol. In addition, she was also required to complete an alcohol education course and had her probationary status as a new officer extended.
According to some local DUI lawyers, a complete dismissal is unusual for Poole’s case. “It’s pretty rare that you see cases completely dropped, but every case is different. They might get knocked down to a reckless driving or a careless driving sometimes, but with more refusals they won’t negotiate… a dismissal,” says Melbourne-based DUI lawyer Mark Germain.
However, despite earlier reports that Poole failed multiple field sobriety tests, State Attorney spokesperson Todd Brown explained that the lack of a breath test and Poole’s actual performance on the field sobriety tests were sufficient enough to make the burden of proof for trial difficult to meet. Since prosecutors also have an obligation to drop charges that do not meet the burden of proof, it was decided that they would drop the charges. He believes that a member of the public charged in the same circumstances would have resulted in the same conclusion.
Let’s put aside the question that we have regarding the dropped charges for a moment. As an officer of the law, who is supposed to be enforcing the very laws that she disregarded, she was allowed to apply for and was approved for a “business only” license during her license suspension period.
There are multiple factors that can be considered to reach the conclusion that was reached. Poole was off duty, so the charge should have no bearing towards the responsibility she holds during her on duty hours. No chemical test seemed to have taken place, even after her arrest, so there is no factual evidence that she was over the legal limit. Because the charges were dropped, there is no conviction on her record. These are all arguments to allow her to continue to drive for work purposes. Would the same treatment have been given to a non-police officer?
When it comes to the actual charges, at least here in California, Poole would have been charged with a DUI. Prosecutors here in California have actually said that they would rather go to trial and lose a DUI case for lack of evidence than to dismiss it for lack of evidence. As the local DUI attorneys have pointed out, it’s extremely rare for a prosecutor to dismiss a DUI case give the facts of Poole’s case. In fact, drivers have been charged with a DUI with much less evidence than in Poole’s case.
Again, questions remain: Had Poole been anyone other than an officer, would she have been treated differently? Probably. Would she have been approved for the “business only” driving license? Probably not. Are police held to a different standard when it comes to DUI prosecutions than the rest of us? Although I’d like to answer in the negative, Poole’s case has me thinking otherwise.
Most of us will agree that we want the courtroom to be a place of fairness and justice. Sadly, some days that just doesn’t seem to be the case. According to Mississippi Department of Public Safety Commissioner, Marshall Fisher, the day a judge made the decision to throw out a DUI case against the Tupelo city attorney was such a day.
According to Fisher, “Judges are to use the law and facts when deciding whether police actions are constitutional, and Justice Court Judge Chuck Hopkins had neither the law nor the facts on his side when he dismissed the case against Tupelo city attorney Ben Logan.”
Back in December, Mr. Logan was stopped at a Mississippi Highway Patrol safety checkpoint and arrested for driving under the influence. He had been seen attempting to avoid the checkpoint by pulling into a private lot of a closed business. Multiple officers witnessed Logan showing visible signs of intoxication such as glassy eyes and slurred speech. He was taken to the Lee County jail but was never booked. He was, however, released to his girlfriend who was allowed to drive him home.
Although hearing was scheduled at the Lee County Justice Court, Logan’s attorneys filed a motion claiming that the checkpoint was unconstitutional. Judge Hopkins agreed with the motion and dismissed the case on July 11th citing court records which apparently did not show that the troopers who conducted the checkpoint had permission from their supervisors.
However, according to Fisher, “No Mississippi Supreme Court case requires law enforcement have permission from their superior before conducting a safety checkpoint. But even if that permission was required, the troopers in this case had it. The Master Sergeant was present and even witnessed Ben Logan avoid the safety checkpoint.”
Mississippi Justice Court is the only court in the state where judges are not required to be attorneys. They are elected positions and according to Jackson County’s website, Justice Court Judges are elected officials serving four-year terms. To qualify to serve as a Justice Judge the candidate must meet the following requirements:
- High School diploma is mandated
- Justice Court Training Course provided by the Mississippi Judicial College of the University of Mississippi Law Center
- Annual continuing education requirement prescribed by the Judicial College
- Resident of the County at least two years prior to serving.
- Hold at least one session of court per month, but not more than two.
Guess what? Judge Hopkins is not an attorney and, according to Fisher, “created his own requirements for [the] safety checkpoint.”
Does this bother anyone else? Does it bother anyone else that Judge Hopkins doesn’t need a license to practice law, doesn’t need a law degree, and doesn’t even need an undergraduate college degree? What’s more, according to the Mississippi Code, newly elected justices have six months to complete their Justice Court Training Course. This essentially means that someone could potentially finish the courses in less time than that.
Attorneys in every other state, for the most part, are required to obtain a four-year undergraduate bachelor’s degree before attending law school. Law schools then select only a handful of top-performing undergraduate students to attend and obtain a law degree. After three grueling years of law school, students obtain a law degree…if they survive law school. Then, if they graduate law school, students can take the bar exam for their respective state, the pass rate of which is often very low (especially here in California). If they pass the bar exam, only then can they become lawyers who can later become judges. This is a screening process to ensure that only qualified, legally versed professionals are able to make important decisions which affect the lives of citizens.
Now contrast this with Mississippi’s lax (to put it mildly) standards.
Lives are literally in the hands of judges and justices. It takes years to learn the law so that it can be applied properly to achieve a just result. It does not and should not take a high school diploma and a six-month (likely less) course. Otherwise, as Fisher pointed out, you have lay-people sitting on judge benches making decision which affect the lives of people, not based on the law, but based on their own personal beliefs, gut feelings, or political preferences.
I find this appalling.
“This case is nothing more than local politics getting the end result they wanted by blaming a state agency,” Fisher said. “When non-lawyer judges start making decisions on what is considered constitutional under the law, these types of mistakes will continue to happen.”
The body of a New Jersey man was recovered from Lake Hopatcong in New Jersey this week. The driver of the pontoon boat that he was a passenger on has since been charged with boating under the influence.
This past weekend, 24-year-old Jason Gill of Mr. Arlington was a passenger on a pontoon boat operated by Nicholas Zarantonello, also 24-years-old and from Lake Hopatcong, the lake from which Gill’s body was recovered from. According to state police, Gill fell into the state’s largest fresh-water lake this past Saturday. Although a search started that evening, it was suspended due to poor visibility and lighting in the area.
Search operations continued on Sunday using a helicopter, side-scan SONAR sub-surface detection equipment, the State Police TEAMS Unit, and rescue boats from a nearby fire department. Gill’s body, however, was not recovered until Monday.
Zarantonello, the boat’s operator, has since been arrested, charged with boating under the influence, and has since been released from custody with a future court date.
The drowning took place in an area of the lake that had been under an advisory to avoid swimming because of high levels of harmful algae bloom. Boating, however, was not affected by the advisory.
It goes without saying that DUI laws exist to protect us and others on the road from drivers whose judgment and motor skills have been impaired as the result of alcohol and other intoxicants. The same logic can be applied to laws that prohibit operating a boat while under the influence; namely to protect ourselves and others on the water from boat operators whose judgment and motor skills have been impaired.
Don’t think that because it’s a boat out on the open water that drunk driving laws don’t apply to you.
Boating under the influence is treated in very much the same way as a DUI is treated here in California.
California Harbors and Navigation Code section 655 states in pertinent part:
(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.
(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.
The Harbors and Navigation Code also provides a zero tolerance for aquaplanes and water skis.
What’s more, the penalties for boating under the influence in California are similar to those for a California DUI; up to six months in jail, up to $1,000 in fines and fees, and a California DUI school.
Unlike a California DUI, however, any prior boating under the influence or driving under the influence conviction will only enhance a future boating under the influence charge if the prior conviction occurred within seven years. If you are charged with a California DUI, any California DUI or BUI that occurred in the last 10 years will increase the penalties of the current DUI.
Also, while the passengers of vehicles cannot drink alcohol within the vehicle under California open container laws, passengers of boats can legally drink alcohol on the boat.
In addition to running the risk of getting arrested, charged and convicted, boaters need to also realize the danger to themselves and others when boating under the influence. There are no lanes, no rules of the road, just open water.