Tag Archives: Driving under the influence

New PA Bill to Protect Medical Marijuana Users from Arbitrary DUIs

Pennsylvania, which has legalized medical marijuana, has introduced a bill that would exempt medical marijuana users from the state’s arbitrary per se marijuana DUI law.

Although Pennsylvania legalized medical marijuana in 2016, with dispensaries opening up in the state in 2018, laws still remain on the books that would arbitrarily punish medical marijuana users merely for having THC in their system, even though they are no longer “high.” The new bill aims to close that loophole.

Prior to Pennsylvania’s legalization of marijuana for medical purposes, it was illegal to have any THC in a driver’s system while driving. At the time, the law did not conflict with itself because it was illegal to have any THC in the system because marijuana use, as a whole, was illegal. Thus, it did not matter whether a driver was still high or not; if they had THC in their system, it was illegal because all marijuana use was illegal.

Since the state has now legalized medical marijuana, at a minimum, those laws cannot remain on the books. Otherwise, it is possible for a legal medical marijuana to be arrested, charged, and convicted of a DUI in the state even though they haven’t smoked in days, possibly even weeks, and are perfectly sober when pulled over for that DUI.

 Unlike alcohol, the intoxicating chemical of marijuana, tetrahydrocannabinol or “THC,” can possibly stay in a person’s system for weeks. Also, unlike alcohol, THC levels do not necessarily correspond to how intoxicated or high a person is. Science suggests that when a person has a blood alcohol content of 0.08 percent, they typically are at a level of intoxication that would make it unsafe to drive. This is why it is illegal to drive while under the influence and with a 0.08 percent (0.05 in Utah). It is dangerous to society when people drive when they are under the influence, or when their blood alcohol content suggests that they are “under the influence.” No such scientific correlation exists between THC and degree of intoxication from marijuana use.

Therefore, when Pennsylvania legalized medical marijuana, it put every single user of medical marijuana at risk of an arbitrary DUI by not also updating its DUI laws. It was possible for a cancer patient to smoke marijuana on Monday, become sober by Tuesday, remain sober for the rest of the week, and then get arrested for a DUI on Sunday simply because they still had THC in their system (as a result of taking prescribed medicine for cancer!).

Pennsylvania’s new law would require police and prosecutors to prove that a medical marijuana user was actually impaired while driving rather than merely proving that the person had used marijuana sometime in the past.

“We need to ensure that the legal use of this medicine does not give rise to a criminal conviction,” state Sen. Camera Bartolotta (R), who introduced the legislation, said in a statement about her bill. “Patients fought tooth and nail for years to see the use of medical cannabis legalized to treat a variety of terrible health conditions. They should have the peace of mind to know that they will not be punished later for using their prescriptions responsibly.”

Although some states still have per se limit laws for THC, like they do with alcohol (0.08% BAC in all states except Utah where it is 0.05%), a 2019 study, published in the journal Addiction by a team of Canadian researchers, found that drivers who had 2-5 nanograms of THC per milliliter of blood (the level of some states’ per se laws) were no more likely to cause a crash than people who had not consumed marijuana.

“Given the very serious consequences of a DUI conviction, my legislation will provide critical protections for medical cannabis patients by ensuring responsible use of their legal medicine does not give rise to a criminal conviction,” said Bartolotta.

My response: It’s about time. Until states can figure out a way link THC levels (or any other quantifiable measure) with intoxication, per se laws DUI laws for marijuana usage in states that have legalized it are unconstitutional.

 

States with the Toughest DUI Laws in the Country

It is no secret that some states prioritize enforcing certain laws over other laws. Similarly, some states have much harsher penalties for certain crimes than other states do. For instance, some states, like California, are known for strict gun laws. Other states, like Virginia and New Jersey, are known for imposing strict penalties on thieves. Each state’s decision on how strictly it will enforce a law and how severe the penalties are for violating it, in part, comes down to what each state prioritizes. These decisions are related to public policy and what each state’s populous values. On that note, there are certain states that are known for their strict enforcement of DUI laws and others that are known for imposing strict penalties on DUI law violators. Keep this in mind if you find yourself in the following states as the ramifications of driving under the influence of drugs or alcohol can be severe.

Arizona: The Grand Canyon State is known for deserts, sunshine, hiking, and . . . being the worst state to get a DUI in. Arizona’s DUI laws, like most states, prevent all motorists from driving a vehicle with a blood alcohol concentration (“BAC”) of 0.08 percent or more. Additionally, Arizona DUI laws prohibit motorists from driving under the influence of drugs or alcohol if the driver is even impaired “to the slightest degree.” Arizona’s impaired “to the slightest degree” distinction is stricter than other states. For instance, California law enforcement officers can arrest motorists with DUI for having a BAC greater than or equal to 0.08 percent or being “under the influence,” which has been held to mean that a driver is not able to drive as a reasonable and sober driver would because of an intoxicant. Finally, Arizona has a “not-a-drop” DUI law for all motorists under the age of 21 years old. This “not-a-drop” law prohibits anyone under the age of 21 years old from driving with any measurable amount of alcohol in their system. Although the “not a drop” law seems harsh, many other states enforce the same or a similar law. Additionally, it is possible to get a DUI in Arizona without actually driving. If an individual is “in physical control” of a car while impaired, they can be cited for DUI. Other states, like California, require actual movement of the vehicle. Arizona’s justification for this particular law is that it helps to stop impaired driving before it starts.

Arizona is also known for being the toughest state on first-time DUI offenders. It was the first state to implement a mandatory interlock device installation policy for first time offenders. Other states have since followed suit and implemented similar policies. Also, Arizona has some of the highest fees for first-time offenders and mandatory jail time as well.

Massachusetts: Like Arizona, Massachusetts DUI laws prevent all motorists from driving a vehicle with a BAC of 0.08 percent or more. Unlike Arizona’s “slightest degree” standard, a driver in Massachusetts can also arrested on suspicion of a DUI if they are “under the influence.” However, the Bay State dishes out the most jail time for a DUI conviction. A first-time DUI offender in Massachusetts can face up to two and a half years in jail. The state also has a strict penalty for driving under the influence with child passengers under 14 years old in the vehicle. If a driver is caught with a child in their vehicle while under the influence, the driver can be convicted of child endangerment—which is separate offense to DUI. The child endangerment offense carries with it up to $5,000 in fines, a one-year license suspension, and 90 days to two and a half years in jail. However, Massachusetts is not alone in imposing additional penalties for DUI with minors in the vehicle. For instance, Pennsylvania and the District of Columbia have similar penalties for this aggravating factor. 

Ohio: The Buckeye State is known for lengthy driver’s license suspensions for DUI offenders. If an individual is convicted of DUI in Ohio, it is possible that they could lose their driver’s license for up to three years. This is a stark contrast to some other states. For instance, Kentucky, Michigan, Montana, New Jersey, Pennsylvania, Rhode Island, South Carolina, South Dakota, and Tennessee do not mandate that a DUI offender’s driver’s license be suspended. Also, California generally limits a first-time DUI offense to a six-month license suspension. Therefore, Ohio is undoubtedly tougher on DUI offenders when it comes to license suspensions than many other states. Individuals should keep this in mind before operating a motor vehicle while under the influence in Ohio as it might be difficult to get around for several years if convicted of DUI.

Utah: The Beehive State has the lowest BAC limit of any state. In Utah, any motorist in physical control of a vehicle while having a BAC of 0.05% or higher has per se committed a DUI offense. This is currently the lowest BAC limit in the country, and the only state with such a limit. Also, in Utah, a first or second DUI offense is generally categorized a Class B misdemeanor. However, the DUI offense increases to a Class A misdemeanor if the impaired driver inflicted bodily injury upon another as a proximate result of driving under the influence or the impaired driver has a passenger under the age of sixteen years old in the vehicle at the time of the offense. While Utah’s misdemeanor class distinctions are somewhat comparable to other states, the state’s low BAC limit is entirely unique. Although Utah’s DUI arrest rates have been relatively consistent since the lowering of the BAC limit, other states could follow suit in their own efforts to curb drunk driving. For more info on Utah’s 0.05 percent limit see Utah Now has the Lowest BAC Limit in the Country and How Effective is Utah’s New BAC Limit?

Clearly, some states adopt more stringent measures to prevent individuals from driving under the influence than others. Arizona, Massachusetts, Ohio, and Utah are known for either strictly enforcing their DUI laws or imposing harsh penalties on violators of their DUI laws. Although nobody should get behind the wheel after consuming alcohol, motorists should be aware of the rather harsh DUI laws and penalties they face when driving in other states.

 

Police Misconduct in DUI Cases

Cops, like all employees, can be good, bad, or somewhere in the middle. However, it would be difficult to argue that there are many employment positions out there that require the same degree of care, competency and honesty as law enforcement. Sometimes an arresting officer is just a good person who made a bad judgement call. Other times, the officer abused their position. There are serious consequences when a police officer’s misconduct affects a DUI case. Police misconduct in DUI cases is very much real and happens more often than enforcement departments admit or that the public is aware of. In early 2019, amidst public call for police accountability, California enacted a transparency law, which essentially makes police misconduct records available to the public.

After the law was enacted, the Modesto Bee dove into newly released records and found numerous accounts of police misconduct. The documents detailed a lot of dishonesty. Of the records that the outlet uncovered, what it found as probably the most egregious misconduct, was that of an officer who had previously received commendations and public praise for his DUI enforcement efforts. Unfortunately, his elevated DUI numbers were the product of misconduct.

Footage did not match his written reports, which included that he observed signs of intoxication when none were present on the footage and relying on an “odor of alcohol” when the suspect’s BAC turned out to 0.00 percent. The officer “stopped drivers without reasonable suspicion, based on nothing more than the fact they were leaving the parking lot of a bar. He mocked the drivers he pulled over, … recorded evidence of impairment that did not objectively exist and arrested them without probable cause.” Additionally, an internal affairs review of his record concluded that the officer’s conduct was “often rude, belittling, abrupt and arrogant.”

All too often, this type of misconduct is chalked up to as an overzealous pursuit of justice on the officers’ part. Sometimes misconduct isn’t so egregious as what the Modesto Bee’s uncovered but can just be incompetently handling cases. The Modesto Bee’s efforts are only a small glimpse into misconduct in DUI Cases. Unfortunately, misconduct is not an anomaly and virtually every department struggles to address police misconduct within. Because of transparency laws like those in California and other states, law enforcement is coming to grips with the fact that they can’t keep turning a blind eye to bad policing.

Some examples of police misconduct, include:

  • Invalid Investigatory Stop: A police officer must have reasonable suspicion that a crime occurred to stop your vehicle. This means that the officer must be able to show he or she had a supported reason for stopping you other than mere suspicion. Generally speaking, traffic violations and equipment failures (i.e., a blown-out taillight), are examples of proper reasons for a stop. However, it is misconduct for an officer to stop without any reason, or, since many officers know this, to fabricate the reason for the stop in their police report.
  • Invalid Arrest: Likewise, a police officer must have probable cause that a driver was DUI before they can be arrested. Probable cause means that the officer has reasonable and trustworthy facts that the driver is DUI. It is misconduct for an officer to arrest without probable cause, or, since many officers also know this, to fabricate the reasons for the arrest.
  • Out-Of-Uniform, Unmarked Vehicle Stop: In some states, off-duty police officers who are neither in uniform nor in a marked vehicle cannot conduct traffic stops. In those states that prohibit out-of-uniform, unmarked police vehicle stops, doing so is misconduct and evidence obtained from such a stop can be suppressed.
  • Improper Administration and Recording of Field Sobriety Tests: There are several standardized field sobriety tests that an arresting officer can use to determine the sobriety of a driver. That officer must understand and properly administer the test, as well as, properly evaluate the results in order for his conclusion regarding intoxication or impairment to be supported. Improper administration of the field sobriety test may invalidate the test and cast reasonable doubt. It should go without saying that intentional or negligent misrepresentation of the driver’s performance is also misconduct.
  • Improper Administration of Breathalyzers and Blood Test: Most states require that an officer strictly follow an approved methodof administering breathalyzers and blood tests. Whether a driver is submitting to the optional pre-arrest breathalyzer test, or the required post-arrest chemical tests (that can be either a breath test or a blood test), intentional deviations or mistakes made during this process are considered misconduct and can result in suppression of the results.
  • Hostile Attitude: Though certainly not always the case, some officers struggle to be civil to suspects, defendants and attorneys. Often, video footage, like those required in the type of transparency laws that California has enacted, expose the hostile attitude often taken by officers against drivers suspected of drunk driving. Often the hostile attitude is the result of the officer’s preconceived notion that the driver is drunk even though the officer has nothing to base their opinion on.
  • Failure to Document: Speaking of transparency laws, there is absolutely no excuse for the lack of a video footage or other documentation of police interactions with drivers in those departments who employ it. Logic would dictate that documentation and video footage would only assist and corroborate an officer’s observation. So why is it that the footage is often left out? Sometimes, video footage that is supposed to be available isn’t because it has gone missing, exists as a corrupted digital file, or the equipment wasn’t working. Would it have corroborated what the officer wrote in his or her report, or would it have shown something else, perhaps misconduct?

Fighting for your rights does not, in and of itself, mean that you are fighting against the officer. However, if an officer fails to follow normal department protocols, whether intentionally or not, your attorney should expose the misconduct and possibly get the a DUI dismissed or at the least to persuade the prosecutor to reduce the charges or penalties.

 

Buoys and BUI: Boating Under the Influence

As boating season nears us, it is important that boaters remember marine traffic laws in order to avoid accidents and injuries. Law enforcement officials routinely patrol waterways with the hopes of stopping and arresting people for boating while intoxicated the same as they could if they were driving a vehicle on a traditional road.

Every state has a set of driving under the influence (DUI) laws to help keep drivers, passengers, and the community safe. Many people, however, don’t realize that DUI laws apply to more than cars and trucks. In fact, today, every state and the federal government have laws against Boating Under the Influence (‘BUI’). These boating under the influence laws allow officers to stop boats and other watercraft to make sure that the operators and their passengers are sober and safe enough to be allowed on the water.

A stark rise in alcohol and drug-related boating injuries and fatalities prompted state legislatures to enact BUI laws. More than half of all boating accidents involve some level of alcohol or drug consumption, and alcohol is the leading contributing factor in fatal boating accidents, according to the Insurance Information Institute and the U.S. Guard.

The Basics of a BUI

For the same reasons that the legislature enacted driving under the influence laws, BUI regulations exist to hopefully minimize the possibility that a person will operate a boat or watercraft while drunk or under the influence of narcotics. The U.S. Coast Guard warns that “alcohol is more hazardous on water than on land.” Perhaps they’re correct. There are no lanes, few signs, and just open water.

Law enforcement authorities can pull a boater over, just like a driver on the road, if they are suspected of a BUI. Law enforcement officials are also permitted to set up BUI checkpoints on the water, similar to roadside DUI checkpoints, to question boat operators for boating under the influence.

Additionally, boaters face other factors (sometimes referred to as “boater’s fatigue”) that car drivers don’t need to worry, which include heat, sun, noise, wind, and the general effects of being on the water for a long period of time. When alcohol and drugs are also involved, the ability to operate a vessel on the water can be severely affected and become very dangerous.

As you can see, the basics of a BUI are very much like a DUI, possibly even more dangerous.

BUI: Elements of the Offense

Most state laws define crimes of drunk boating as follows: operating a watercraft on a body of water while under the influence of alcohol or drugs. Some state laws also provide a per se BUI offense when a BAC is over a certain amount. Other water related laws apply as well—for instance, in California, people younger than 21 years-old with BAC levels of at least .01 percent cannot even use water skis.

More specifically, California’s BUI law makes it a crime to operate a water “vessel” or a “similar device” while under the influence of alcohol, or drugs, or both, or with a blood alcohol content of 0.08 percent or more.

The Harbors and Navigations Code also provides a zero tolerance for aquaplanes and water skis.

Consequences of a BUI Conviction

Convictions for boating under the influence can have severe consequences. These consequences are due in part to the rise in boating injuries and fatalities. In addition to a possible criminal conviction, boat operators can have their boating licenses suspended or revoked. It is also common for your driver’s license to be affected by a BUI conviction. Aggravating circumstances, such as repeat offenses or boating with minors on board, could face higher consequences. However, a standard BUI 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 program.

Boating Safety Tips

To avoid situations that could affect not only your own rights and safety, but that of friends, family, and others on the water, boaters should be cognizant of the following:

  • Exercise increased caution during major holiday weekends: Holiday weekends are usually considered the deadliest weekends for accidents involving alcohol, both on the water and on the road.
  • Know your local boating regulations: If you travel to another state, understand what the local regulations say about both open containers and BUI laws.
  • Make sure that you and all passengers on the boat wear life vests: Life vests, in general are always a good idea. Many boating deaths and accidents could have been avoided operators and their passengers had worn their life vests.

Additional tips to avoiding a BUI include:

  • Take along a variety of non-alcoholic drinks. Having no alcohol while aboard is the safest way to enjoy the water;
  • Bring food and snacks;
  • Stay cool and hydrated;
  • Plan to limit your trip to a reasonable time to avoid fatigue.
  • If you dock somewhere and drink alcohol, wait a reasonable time before operating your boat.

Of course, the only failsafe way to avoid a BUI is to avoid alcohol altogether before and while operating a boat, or any vessel for that matter.

Marijuana Smell and the 4th Amendment

The expansion of legalized marijuana use and the changing marijuana laws are wreaking havoc on what law enforcement consider probable cause and the justification for certain searches.

The Fourth Amendment of the United States Constitution states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

Simply put, if you expect it to be private, cops must get a warrant to search it. And in order to get the warrant, they need reasonable and trustworthy facts that they’re going to find illegal.

Though there are exceptions to the need for a warrant, one of which includes the “automobile exception.” If an officer has probable cause to believe that a vehicle contains illegal or is engaged in illegal activity, they need not get a warrant to search it.

For years, officers claimed, and as became the standard, that the distinct smell of marijuana is what provided the officers the probable cause needed to search a vehicle without a warrant.  

But what about when a perfectly sober person drives a passenger who smells like marijuana because they use it for, say, medical purposes? In other words, if it now commonplace that passengers, or even drivers, can smell like marijuana (since it is legal), can we continue to allow cops to use it as justification to search without a warrant?

In one Pennsylvania court case, a judge made the correct ruling that the state troopers lacked probable cause to search the car of the defendant. The defendant had been sitting in the passenger seat while his wife had been driving the vehicle. When she failed to properly stop at a railroad overpass, officers pulled them over and then was able to “smell the odor of both burnt and raw marijuana through the open window of the vehicle.” The defendant was a medical marijuana card holder and showed it to the police. Despite this, the officers claimed that they still had the right to search the vehicle.

However, the court judge ruled that the troopers did not have further cause to search his vehicle because he produced his card at the time of the stop. Thus, she determined the subsequent search of his vehicle to be unlawful and that all evidence collected from the vehicle search should be suppressed. You can read more about the case through this link: https://assets.documentcloud.org/documents/6246965/Commonwealth-of-PA-vs-Timothy-O-Barr.pdf

In another case, a Maryland officers searched a vehicle based on the smell of marijuana. They found a joint containing less than 10 grams of marijuana, a civil offense. The officers then arrested the defendant at the scene and searched his person, which resulted in the discovery of cocaine in his pocket. Although the vehicle search was permitted, the judge decided that there was no further reasonable cause for the officers to arrest and search his person. According to the Maryland Court of Appeals, “this is based on the heightened expectation of privacy one enjoys in his or her person as compared to the diminished expectation of privacy one has in an automobile.”

Alongside marijuana, in 2018 the United States government passed the Farm Bill which federally legalized hemp production, raising further concerns regarding this issue. The smell of marijuana and hemp and nearly identical.

In some states, such as Florida, prosecutors are pushing for a new “odor-plus” standard where the smell of marijuana may still be used as cause, but only as one factor out of many in determining probable cause.

The judicial system’s acknowledgement that times are changing is promising. However, let’s hope that the wheels of justice don’t spin so slow, as they unfortunately often do, that it can’t keep up with what we know to be correct approach to marijuana.