Monthly Archives: January 2020

Is Utah’s Cannabis DUI Law Too Lenient?

Although many states have started to legalize the use of recreational cannabis, some still continue to oppose. We have previously covered the difficulties of how to effectively and accurately measure or even quantify impairment with THC levels (see Marijuana Breath Detector). And yet, there are many who refuse to see the importance in exacting the correlation between THC and impairment, and what it means for drivers who may occasionally partake.

Utah State Representative Steve Waldrip (R- Eden), is one of those people. His plan is to introduce a bill that would presume impairment in DUI cases when one has reached or exceeded a specific level of THC in their blood, and “simply mirror what happens with alcohol.” He feels that it is unfair to treat marijuana intoxication as a lesser offense than in the case of intoxication with alcohol. However, his view seems to ignore the fundamental differences between the two substances. In a previous article, we covered the difference between alcohol which is water soluble and THC (tetrahydrocannabinol) which is fat soluble and how that affects levels found the blood stream, as well as how that affects the determination of impairment. His approach would completely ignore the scientific differences of these two substances and create a double standard in addition to the already unfair legal standard.

Waldrip’s reaction was mainly based on an accident where a driver, who tested positive for THC, hit a pedestrian on a highway and now faces misdemeanor charges. As a misdemeanor, the charge is punishable by up to six months in jail. Waldrip and the victim’s family felt that the penalty for the charge was too lenient.

According to the police report for the accident, the driver, though tested positive for THC, was driving under the speed limit of 50 mph at the time of the accident, stopped quickly, and attempted to aid. Under current Utah law, when a crash results in a serious injury or death, the offense can be charged as a felony. In this case, due to the contents of the police report, prosecutors were not able to prove impairment as the law requires evidence of impairment beyond blood test results. This was also combined with the fact that the pedestrian was found to have been under the influence of alcohol at the time of the crash with a blood alcohol content of 0.21 percent, over four times the legal limit in Utah.

Waldrip’s argument seems to be a double standard in how alcohol and marijuana are treated, and wants to do away with the impairment standard, ignoring the fact that driving with “any measurable controlled substance or metabolite of a controlled substance” in your blood is a Class B misdemeanor. Given that THC metabolizes much slower than alcohol, this current law is already unfairly skewed for cannabis users. He also conveniently ignores the fact that there are other elements of the current law that can convict without evidence of impairment. Misdemeanor DUI convictions may also trigger, upon a first offense, suspension of the driver’s license and mandatory attendance in an education program; for a second offense, minimum jail time or community service increases from two days to 10 days; and a third offense is a felony. All of these can be triggered without additional evidence of impairment. As an article by Reason pointed out, “That is the real double standard.”

Can Colorado Keep Up?

Questions regarding Colorado’s ability to keep up with the flow of DUI blood tests have come to light since the state’s major policy change that could potentially jeopardize cases.

As of July 1, 2019, rather than sending out their blood tests to private labs, the Colorado Bureau of Investigations (CBI) has taken on the workload themselves in their attempt to cut back on spending. Private lab testing costs, at minimum $300, per case. This switch was in attempt to ease financial burdens on the smaller law enforcement agencies and to better collect data regarding marijuana use among motorists. The hope was that the state would be able to gather more information since the smaller agencies who refrained from sending in samples previously due to the cost, would be more likely to send in their data.

In addition to the fear that the CBI will not be able to handle the overflow that would result from the change in policy, there is also concern regarding the effects on the private labs they took work away from.

Back in 2013, when the Colorado Department of Public Health and Environment closed its labs due to concerns regarding accuracy, a small private lab called ChemaTox, made its way onto the market and has since handled thousands of cases for the state’s law enforcement. However, when CBI dropped its fees at the start of July, it hit ChemaTox hard. According to its owner Sarah Urfer, the business couldn’t keep up.

“It was never our intention to negatively impact a private business. I’m embarrassed and I’m responsible. Where we failed was to do the stakeholder outreach that I expect our agency to do and I should have done in this case to reach out to ChemaTox,” said John Camper, Director of the CBI.

The loss of business that Urfer and her 25 full-time employees suffered within weeks of the change was significant enough that she felt unable to rebuild, leading her to close within the month.

With one of the labs that handled the workload closed for good, all of the tests that were run by them fell onto the CBI.

As of October of last year, Camper announced that the CBI is doing a good job handling its workload and that they are still operating well within the time limits set for speedy trial requirements. However, it must also be noted that the state budgets that have been sent in by the CBI shows that, while they did not clock in any overtime during the months of June and July, the month of August reported that they worked nearly 160 hours of overtime. Camper has stated that he has no intention of asking the legislature for more funding to handle the workload that has already doubled over the last few months and that they still have open positions to fill that will help to keep the turnaround times low.

Prosecutors are still wary and have warned the CBI that, should the department become overwhelmed, they will have to resort to dropping cases because of the inability of the labs to present evidence that the prosecution needs to move forward. The prosecution uses test results for not only DUI cases, but also cases such as vehicular homicide and murder, and toxicology in its many forms are crucial to such cases. In the case of trial proceedings, the prosecution is also worried about the CBI’s ability to be able to provide experts available for testimony at trial.

Lastly, at the Joint Budget Committee in July, a point was made by State Representative Jonathan Singer (D-Longmont) when it was announced that the CBI would be running a full panel test on every DUI case sample that comes through its doors, regardless of whether or not the sample came in for just alcohol analysis. The reason for the full panel was to gather information about the effects of marijuana use throughout the state. Colorado’s current DUI law is not specific to alcohol or drugs, thus there is a grey area, but the CBI has admitted to the potential for challenges on the practice.

Singer questions the constitutionality of such actions. “If we’re looking for substances that weren’t the initiating or even the secondary reason for an arrest or a charge, are we wandering into any federal constitutional concerns about custody of evidence?”

That definitely sounds like something that could be a concern.

 

Breathalyzers in Michigan Called into Question Amid Suspicions of Fraud

We’ve been saying it for years: breathalyzers are inaccurate for a multitude of reasons. Recall just a few months ago The New York Times confirmed exactly this stating that after interviewing “more than 100 attorneys, scientists, executives and police officers and [reviewing] ten of thousands of pages of court records, corporate filings, confidential emails and contracts,” it revealed “the depth of a nationwide [breathalyzer] problem that has attracted only sporadic attention.”

In January of last year, a Massachusetts judge threw out the breathalyzer results of over 400 DUI cases as the result of inaccurate results.

In late 2018, New Jersey’s highest court ruled that 20,667 breathalyzer results were faulty and therefore inadmissible in the DUI cases where the defendant’s blood alcohol content was used to secure the defendant’s conviction.

As if breathalyzer accuracy wasn’t unreliable enough already, now state police in Michigan are looking into the alleged fraudulent certification of breathalyzers used throughout that state.

Accuracy of breathalyzers thrown into question amid Michigan State Police investigation

January 14, 2020. Detroit Metro Times –  Michigan State Police are investigating three contract employees who ensure the accuracy of breathalyzers used during traffic stops after authorities discovered “performance-related issues” and possible fraud.

State police notified law enforcement officers across the state to stop using more than 200 breathalyzers from longtime vendor Intoximeters.

The investigation focuses on three Intoximeters contract employees, who were responsible for certifying and calibrating Datamaster DMT breathalyzers to ensure they are accurate.

Investigators said they suspect fraud after finding discrepancies in paperwork.

Stopping the use of the breathalyzers “is an absolutely necessary move to safeguard the integrity of the criminal justice process,” Michigan State Police Director Col. Joseph Gasper said in a news release.

“Upon learning of additional and more egregious discrepancies, I am no longer comfortable having police agencies using these instruments until we can be confident they are certified, calibrated and serviced according to state law and industry standard,” Gasper says.

In a letter to law enforcement officers across the state, state police said prosecutors have been alerted to the suspected fraudulent activity.

“Prosecutors with cases impacted by the contractor errors identified by the MSP have already been notified,” Michigan State Police Maj. Greg Zarotney wrote to law enforcement officials. “However, out of an abundance of caution, we are examining all available data to determine if any additional tests are impacted by the contractor errors.”

The following law enforcement agencies were using breathalyzers with “possible discrepancies”: Alpena County Sheriff’s Department, Beverly Hills Police Department, Detroit Detention Center, Montcalm County Sheriff’s Department, Niles Police Department, Pittsfield Township Police Department, Tecumseh Police Department, and Van Buren County Sheriff’s Department.

In California courts, a person cannot challenge the accuracy of breathalyzers in general. If, however, an individual breathalyzer was inaccurate during a DUI stop, that person may challenge the accuracy of the individual breathalyzer used on them during the stop.

Why risk the uncertainty of a breathalyzer result when so much is on the line?

If an officer requests that a driver submit to a pre-arrest breathalyzer, that breathalyzer is optional. Although the officer may make it seem as though it is mandatory, the law does not require that the driver submit to a pre-arrest breathalyzer.

What is required, however, is that a driver submit to a chemical test, which can either be breath test or a blood test, but only after that driver is lawfully arrested on suspicion of a DUI. Until then, don’t do it.

 

12 Million Americans Drove While High in 2018, 21 Million Drove Drunk

According to a study conducted by the U.S. Centers for Disease Control and Prevention and data derived from the Substance Abuse and Mental Health Services Administration’s National Survey on Drug Use and Health (NSDUH), 12 million drivers over the age of 16 admitted to driving stoned in 2018. In the same year, close to 21 million said they drove drunk.

The report, published in Morbidity and Morality Weekly Report, mentions “Driving under the influence of marijuana was defined as an affirmative response to the question ‘During the past 12 months, have you driven a vehicle while you were under the influence of marijuana?’”

According to the report, “The prevalences of driving under the influence of marijuana and driving under the influence of illicit drugs other than marijuana were higher among males (6.2%, 1.3%, respectively) than among females (3.2%, 0.5%, respectively). The prevalence of driving under the influence of marijuana was highest among non-Hispanic multiracial persons (9.2%). The prevalence of driving under the influence of marijuana ranged from 0.6% among persons aged ≥65 years to 12.4% among persons aged 21–25 years; the second highest prevalence (9.2%) was reported among persons aged 16–20 years. The highest reported prevalences of driving under the influence of illegal drugs other than marijuana were among persons aged 21–25 years (1.9%) and 26–34 years (1.9%).”

It is also worth noting that the highest prevalence of drug use was in the age groups 21-25 years of age with the second highest prevalence of drug use was noted in the age group 16-20 years old.

What’s more, according to the report, the numbers for those claiming to have driven under the influence of marijuana is still significantly lower than that of those who claim to have driven drunk.

These numbers are based on self-reported responses from the participants. Therefore, the accuracy and scope of the information is limited to the truthfulness and completeness of the responses. The report acknowledges this in its findings. 

Nonetheless, numbers such as these worry people like Helen Witty, president of Mothers Against Drunk Driving (MADD), who said, “Driving under the influence of marijuana is a huge concern, and it’s a huge public health problem that we have such young people using marijuana… It’s natural, they say. But so is snake venom. Natural doesn’t mean that it’s good for you.”

The report by the CDC concludes their discussion by stating, “Impaired driving is a serious public health concern that needs to be addressed to safeguard the health and safety of all who use the road, including drivers, passengers, pedestrians, bicyclists, and motorcyclists. Collaboration among public health, transportation safety, law enforcement, and federal and state officials is needed for the development, evaluation, and further implementation of strategies to prevent alcohol-, drug-, and polysubstance-impaired driving. In addition, standardized testing for alcohol and drugs among impaired drivers and drivers involved in fatal crashes could advance understanding of drug- and polysubstance-impaired driving and assist states and communities with targeted prevention efforts.”              

I wonder, however, how many of the 12 million who claim to have used marijuana before driving can actually be considered impaired? More importantly, how do we inform the public about understanding impairment from the use of marijuana if we still don’t have a valid method of determining it?

The Costs of a California DUI

Often the new year brings with it the need to re-assess finances, including money that might be stashed away for an unexpected “rainy day,” and I thought it might be worth discussing the unexpected expense of a California DUI arrest.

For some, the prospect of jail isn’t as scary as the costs that might be associated with a California DUI. Personal preference aside, the costs are by no means trivial. For many, the monetary costs of a DUI are just as much of a deterrent as the threat of jail itself. So, let’s break it down, but before I do, let me begin by saying the following is general information about basic first-time California DUI cases without injuries or other aggravating circumstances. It goes without saying that California DUI cases are unique with unique circumstances and, as such, the costs associated with different aspects of a DUI case will vary.

First of all, if you can afford an attorney, hire one. Doing so will help your chances at the best possible outcome for the case. However, admittedly, attorneys are not cheap. If you cannot afford one, request the public defender at the first court appearance. Almost all private DUI attorneys charge on a flat fee basis. Usually the flat fee is for pre-trial, and only once a plea deal cannot be reached does a case go to trial. Then the attorney can charge a separate fee for trial should a case make it to trial. Some attorneys do not bifurcate these fees.

Pre-trial is the phase of the court proceedings where the attorney obtains the evidence, makes motions (if applicable), and negotiates a plea deal with the prosecutor. For this stage, attorneys can range between $1,000 and $7,500 depending on the complexity of the case, the experience of the attorney, and the size of their office. There’s no right or wrong number. Pay what you can afford and, generally, with quality comes price. Having said that, do your homework. Make sure that you actually consult with the attorney first and that you’re comfortable with them. Make sure that they specialize in DUI defense. Often, the lower-cost attorneys are the ones who don’t have much experience defending DUI cases.

During pre-trial, it may be recommended that a blood re-test be conducted. You, not the attorney, bears the responsibility of paying for this expense and it’ll run several hundred dollars, depending on what the blood is being tested for. You attorney may also recommend hiring an expert to consult regarding the blood re-test results. This too can cost several hundred dollars.

Most cases settle with a plea deal of some fashion, which means that very few cases actually make it to trial (which is why most DUI attorneys charge separately for pre-trial and trial). For those who wish to push their case to a trial, they can expect anywhere from $5,000 to $15,000 to conduct the trial. Since most DUI’s don’t ever make it to trial, I won’t say anything more about trial costs.

Let’s stop here and reflect on what the cost will be to either prevent a DUI conviction or do damage control and take a plea deal. I do this because the costs following a DUI conviction are just as intimidating as the costs to try and prevent the conviction.

The fine for a DUI is a minimum of $390 up to a maximum of $1,000. Having practiced DUI defense now for close to 10 years, I can say that the fine for most DUI’s ends up being $390 to $500. This number, however, does not include the “penalties and assessments” that get added to the base fine mentioned above. Think of these as “court taxes.” The amount varies from courthouse to courthouse and many judges don’t even know how the court calculates the penalties and assessments. However, as a rule of thumb, I tell people to expect about $2,000 give or take a couple hundred of dollars.

The sentence for a first-time DUI will almost inevitably result in the driver having to take a DUI class, if not for the court, quite possibly to get their license back from the DMV. For a first-time DUI, a person is looking at either a three, six, or nine-month DUI course, depending on the severity of the case. Although the costs vary depending on the length of the course and the program that you take the course from, people should expect to pay between $600 and $1,800 for the DUI course.

Sometimes, a driver convicted of a California DUI will have to pay the arresting agency a booking fee. This ranges between $200 and $400.

When the driver is eligible to have their license reinstated, the reinstatement fee to the DMV is $125. (You can read previous posts about the license suspension following a DUI)

Lastly, a person must consider the ancillary costs of the increase in car insurance. Most people forget to include this figure in their estimations of total DUI costs because it’s not directly related to the courts. The estimate cost of car insurance over 10 years is approximately $10,000.

DUIs can be avoided. Going into 2020, do not let a California DUI be the thing that uses up your rainy day fund this year.