Author Archives: Lawrence Taylor
Imagine that you’ve had a nice evening out, highlighted by a fine dinner accompanied by a glass of wine. On your way home from the restaurant, however, you and your companion are rear-ended by another vehicle. Minutes later, an ambulance arrives and takes you to a nearby hospital. You are examined and treated in the emergency room.
Soon after the attending physician is finished, you are released — and promptly arrested by waiting police officers for DUI.
Unknown to you, the hospital had called the police and reported that blood tests taken as part of your medical examination revealed a blood-alcohol level over .08%.
They can’t do that, you say? This isn’t a police state? Consider a recent court decision from Oregon where exactly this situation happened…and continues to happen:
Feds Force Hospitals to Report Alleged DUI Patients to Police
Portland, OR. April 27 – This month, an Oregon Appeals court agreed with a district court ruling which forces first responders to become state actors.
"Oregon statue 676.260 says a health care facility “shall notify” a law enforcement officer in the course of treatment when a person’s blood alcohol level exceeds .08 percent or their blood contains a controlled substance."…
"As part of defendant’s medical treatment, hospital staff had drawn a sample of his blood and tested it, ascertaining that his BAC was .333 percent. After defendant refused to consent to a blood draw, Trooper Dunlap did not seek a warrant for a blood draw. Nor did he ask hospital staff for the results of the blood test. However, pursuant to their duty under ORS 676.260, hospital staff verbally disclosed to Dunlap that defendant’s BAC was .333 percent and Dunlap included that information in his police report."…
The District court ruled that police couldn’t violate a person’s Constitutional rights because it was the hospital that informed the police.
"After a hearing, the trial court denied defendant’s motion, concluding, as relevant here, that the hospital’s disclosure of defendant’s BAC test result to Dunlap did not violate defendant’s constitutional rights because it did not constitute state action."
"We need not, and do not, consider whether the fact that OR S676.260 required the hospital staff to disclose defendant’s BAC to law enforcement means that the disclosure constituted state action."…
In other words, it would have been a violation of the driver’s constitutional rights if a governmental agency had reported the test results. But the hospital was a private organization, and so there was no "state action" involved. Yet, it was a state law that forced that private organization to report the test and the results to the police.
(Thanks to Joe.)
So let’s say you are at a friend’s party and some of you are passing around a joint. Suddenly, the police show up at the front door. After conducting an investigation, they arrest you for possession of marijuana. You later plead guilty, and are sentenced to pay a fine and are put on probation for three years..
Oh yes, and the court orders you to pay for the cost of the police investigation — $500.
No way, you say? Well, you would be right….unless maybe it was a DUI you had been arrested for. In a typical example of the double standard applied to drunk driving cases (see The DUI Exception to the Constitution), some states are permitting or even requiring a defendant convicted of driving under the influence to pay for the investigation and arrest in his own case.
Fortunately, not all courts are buying into this double standard:
Iowa Supreme Court Nullifies DUI Arrest Fees
Des Moines, IA. Jan 20 – Driving under the influence (DUI) is a serious crime carrying court-imposed penalties that typically cost those convicted around $10,000. Officials in Scott County, Iowa decided they could get some of that money for themselves by directly billing DUI suspects for the "emergency response" provided by police. The practice ended Friday with the Iowa Supreme Court declaring it unlawful…
…Davenport Police Officer Michael Stegall pulled over Homer Christner, spending two hours conducting roadside sobriety tests and booking him in the county jail. So before the court had sentenced Christner, the city billed the man for the officer’s time at the rate of $61 per hour, plus $36 for the two hours that his police squad car was out of service.
At least they didn’t bill him for room and board before he bailed out. Or maybe that’s coming next….
A number of posts on this blog have addressed the problems encountered in trying to measure levels of marijuana — or, more accurately the active ingredient Tetrahydrocannabinol ("THC") — in the blood of a person when he was driving. See, for example, Oregon Legislative Study Criticizes "Per Se" DUI Marijuana Laws and Marijuana Legalization and the California DUI.
More importantly, these and other posts have also raised the related but unanswered question: How much marijuana in the human body does it take to render a driver unable to safely operate a motor vehicle in the manner of a sober person (the rough definition of "driving under the influence" or "driving while intoxicated")? See New Efforts to Push Roadside Marijuana DUI Test.
The following excerpts from a recent article in The Atlantic, entitled "When Are You Too Stoned To Drive?", provide an excellent analysis of these important issues:
…We take for granted that not being able to walk a straight line or stand on one leg means that you’re drunk, and that being drunk means it’s unacceptably dangerous to drive. But there is no clear scientific consensus when it comes to smoking pot and driving. And few of the tools police officers have long relied on to determine whether a driver is too drunk to drive, like a breathalyzer, exist for marijuana…
Most (but not all) studies find that using pot impairs one’s ability to drive. However, overall, the impairment appears to be modest—akin to driving with a blood alcohol level of between .01 and .05, which is legal in all states. (The much greater risk is in combining pot with alcohol.) The increased crash risk with pot alone “is so small you can compare it to driving in darkness compared to driving in daylight,” says University of Oslo political scientist Rune Elvik, who conducted several major meta-analyses evaluating the risk of drugged driving…
When it comes to alcohol, science and the courts have long established a direct line between number of drinks, blood alcohol level, and crash risk. As one goes up, so do the others. Not so for pot. Scientists can’t say with confidence how much pot, in what concentration, used in what period of time, will reliably make someone “high.”…
Blood levels of THC—tetrahydrocannabinol, the chemical component of pot that makes you high—spike quickly after smoking and then decline rapidly in the hours afterwards, during the window when a smoker would feel most high. What’s more, regular smokers could have THC in their blood for days or weeks after smoking, when they are clearly no longer high.
Still, laws in 18 states tie drugged driving charges to whether drivers have THC (or related compounds) in their blood. Some states prohibit driving with any amount, and some specify a threshold modeled after the .08 limit states use for blood alcohol. But the lag time between being pulled over and being transported to a hospital for a blood draw—on average, more than two hours—can lead to false negatives, while the tolerance developed by regular users (and the tendency for THC to stick around in their bloodstreams) can lead to false positives. This is why, researchers say, blood THC laws make little sense…
Scientific facts, however, have never prevented politicians from passing expedient and politically-popular laws, or police and prosecutors from enforcing them.
As I’ve posted often in the recent past, with the increasing use — and legalization — of marijuana, legislators and law enforcement are falling over themselves trying to come up with answers to many uncomfortable questions, such as:
Does marijuana, in fact, impair driving ability?
How does an officer detect recent use of marijuana in the field?
How do you measure the amount of active marijuana (THC) in the body at the time of driving?
At what level of active ingredients in the body is a person impaired?
How long do measurable amounts of marijuana stay in the body?
If impairment levels cannot be determined, is there an illegal per se level that can be used, such as .08% with alcohol?
And as I’ve posted in the past, there are no accepted satisfactory answers to these and related questions. See, for example, California Law Attempts to Prevent Marijuana Use While Driving, Is it Possible to Prove "Driving Under the Influence of Drugs? and Legal Defenses to a California DUI of Marijuana.
Unlike with alcohol, the various states have taken a variety of different approaches to criminalizing marijuana and driving. See What Are Your State’s Drugged Driving Laws? One recent and growing approach is to simply create so-called "per se" laws which criminalize driving with specific levels of THC in the blood, regardless of impairment. This was recently considered by the Oregon Legislature, resulting in the following Oregon House Bill Legislative Report, excerpts of which follow:
Salem, OR. Dec. 31 — …While Colorado and Washington, the first states to legalize recreational marijuana, instituted a per se THC blood concentration limit of 5 ng/ml, Oregon did not. Instead, Oregon relies on evaluations by Drug Recognition Experts (DRE) to assess drivers for intoxication if they have already passed a breathalyzer test (i.e. have blood alcohol content below 0.08)….
Differences in how the body processes marijuana as compared to alcohol makes accurate detection of THC concentration and its intoxicating effect significantly more difficult. It is especially difficult to detect recent use of marijuana in the field…
Due to restrictions on cannabis research and limited data, it is difficult to make definitive statements about the risk of THC-intoxicated driving. The body of evidence that does exist indicates that while attitudes towards driving after marijuana use are considerably more relaxed than in the case of alcohol, the risk of crashes while driving under the influence of THC is lower than drunk driving. Little evidence exists to compel a significant change in status quo policy or institute a per se intoxication standard for THC.
While the confusion, floundering and passage of inconsistent laws continue, so do the arrests and convictions of innocent drivers.
"Drunk driving" is a fairly well-defined criminal offense in all 50 states. There are generally two crimes set forth by statute: (1) driving a vehicle under the influence of alcohol and (2) driving a vehicle with a blood-alcohol content of .08% or higher. The only differences are in relatively minor variations as to what a "vehicle" is and what constitutes being "under the influence".
In marked contrast, however, the definitions of driving under the influence of drugs (so-called "drugged driving" or "DUI drugs") vary significantly from state to state. In one state, for example, the crime consists of driving while "impaired by" or "under the influence of" a drug. In another, it may be defined as driving with a specifically designated amount of the drug in the blood. In yet another, the offense is committed if there is any measurable amount of the drug in the body — and in some states this will include marijuana, while in others it does not.
Do you know what the drugged driving laws are in your state?
Fortunately, the National Alliance for Model State Drug Laws (NAMSDL) in Charlottesville, Virginia, supported by grant from the U.S. Office of National Drug Control Policy, has provided a chart entitled State Drugged Driving Standards which readily identifies the laws of each state.