San Diego Begins Using Mouth Swabs to Detect Drugged Drivers

Thursday, March 23rd, 2017

I’ve been writing for some time now that roadside drug tests for suspected DUI of drugs stops are not far off. The increase in drug usage and the growing acceptance of marijuana has law enforcement agencies and law makers clamoring for a device that can quickly and accurately test whether drivers are under the influence of drugs. While current devices are not quite yet capable of telling law enforcement how intoxicated a driver might be, they can say whether a driver has drugs in their system. And San Diego became the latest city to use such devices roadside.

Last week, San Diego police began using roadside oral swabs to test drivers for the presence of marijuana, cocaine, methamphetamine, amphetamine, methadone, opiates, and benzodiazepines. The oral swabs cannot, however, test the amount of drugs in the driver’s system nor can it test for the driver’s level of intoxication.

The inability to test for quantity of drug or intoxication is legally important because, under California law, a person can only be arrested, charged, and convicted of a California DUI if they are “under the influence of a drug.” This means that a person’s physical or mental disabilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic or a sober person of ordinary prudence under the same or similar circumstances.

With the swab test only able to indicate the presence of one of the drugs listed above, a prosecutor must still prove that a person was not driving with the care of that of a sober person. This is done with officer testimony of poor driving patterns, failure of field sobriety tests, and visual symptoms of drug impairment.

Although many, including Mothers Against Drunk Driving, often forget, the mere presence of drugs in a driver’s system does not necessarily mean that they are driving under the influence. Tetrahydrocannabinol (THC), the active component in marijuana, for example, can stay in a person’s system for up to several weeks after the smoking or ingestion of marijuana. While, the THC may still be present, the person may no longer be “under the influence.”

San Diego began using the oral swab test, called Dräger 5000, after officials met with authorities in Colorado which legalized recreational marijuana in 2014.

Under San Diego protocol, law enforcement will only request the oral swab after they suspect that the driver might be under the influence of a drug. And before that, the officer must have probable cause to even stop the driver in the first place.

Like the preliminary screening alcohol test (PAS) test in DUI of alcohol cases, the oral swab test is also optional. And like the PAS test, it is never suggested that a driver voluntarily submit to the test. Never give law enforcement and prosecutors any more information than they already have.

Only after a person is arrested must they submit to a chemical test and if law enforcement suspects that a person was driving under the influence of a drug, they’ll have to take a blood test.

According to a study by the California Office of Traffic Safety, 38 percent of drivers killed in vehicle collisions during 2014 tested positive for either legal or illegal drugs. This is up six percent from 2013. While this may seem like a high number, testing positive does not necessarily mean that those drivers were actually under the influence and impaired by a drug.

Although drugged driving is and will always be a problem, we can’t continue to arrest people for driving for the mere presence of drugs in their system because presence does not mean impairment.

 

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Can I Expunge a California DUI Conviction?

Wednesday, March 8th, 2017

A very common question people have when they are arrested on suspicion of a California DUI is, “Will this be on my criminal record and, if so, for how long?”

Unfortunately, if the person is convicted, the answer is “yes and forever.” But that doesn’t mean that all hope is lost.

I should clarify before I move on that the arrest will also be on the record, but an arrest, unlike a conviction, cannot be used against you if you were never convicted. Remember, everyone is innocent until proven guilty and if a conviction never occurred, then the person is still innocent. Simply put, an arrest means nothing without a conviction and employers cannot inquire about an arrest nor can they use an arrest as a reason not to hire you.

Having said that, a conviction is different because a conviction means that a person was found guilty of a crime such as a DUI. Convictions can be and are often used by employers as a reason not to hire someone.

When people hear the word “expungement” they think of a clearing of the record, and erasing if you will. However, the term “expungement” is somewhat of a misnomer in California because a DUI conviction, or any criminal conviction for that matter, will not be erased from your record.

California Penal Code section 1203.4 provides, “In any case in which a defendant has fulfilled the conditions of probation…or in any case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted relief under this section, the defendant shall…be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; of, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and…he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted…”

In short, this means that, following the completion of probation, a person can petition to withdraw their guilty plea, no contest plea, or guilty verdict following a trial and the court retroactively dismisses the case.

Although the conviction is not erased from the record, it will now show up as having been dismissed by the court. Cases that are dismissed don’t result in convictions. So, if a person successfully petitions the court for an expungement of a California DUI, they no longer need to disclose the conviction on most employment applications because the conviction was dismissed.

I said that a person need not disclose expunged convictions for most employers because there are some exceptions to the disclosure rule. The conviction must still be disclosed when applying for a government position, a state license, public office, or for contracting with the state lottery. If this is the case, however, a person can then say that the conviction was dismissed under Penal Code section 1203.4 after they have disclosed it.

People make mistakes and sometimes that mistake is the decision to drive while under the influence. Mistakes shouldn’t haunt people for the rest of their lives. If you’ve been convicted of a California DUI and you have completed probation, contact a California DUI attorney about expunging the DUI conviction.

 

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Rare Disorder Causes DUI without Drinking

Friday, February 10th, 2017

A woman, who requested to be called Sara to maintain confidentiality and protect her legal career, was arrested in 2015 for driving under the influence when she collided with a parked vehicle. It was later determined that she had a blood alcohol content of 0.10 percent. Sara had been arrested for DUI before back when she was an admitted alcoholic. This time, however, was different. Sara, now a recovering alcoholic for nearly ten years, only drank orange juice.

Sara drank orange juice and lots of it, sometimes up to a gallon per day. That orange juice, however, might as well have been alcohol for Sara.

Sara suffers from auto-brewery syndrome. Yes, that is an actual medical condition albeit an extremely rare one. Auto-brewery syndrome causes a person’s body to produce extremely high levels of yeast in the digestive track. If you know anything about how beer is made, you’ll know that yeast eats the sugar that is extracted from boiling grains and then releases carbon dioxide and alcohol. See where I’m going? The yeast in Sara’s system ate the sugars from the orange juice and produced alcohol in Sara causing her to be intoxicated without having a sip of alcohol.

Shortly after she was diagnosed last July, Sara accepted a plea deal for a reduced charge of reckless driving with probation.

Sara estimates that she spent $25,000 fighting the drunk driving charge, with expenses including attorney fees and a privately commissioned polygraph test. She says she chose to take a deal rather than go to trial because a conviction could have been career-ending.

“As soon as I stopped the orange juice, I was fine,” said Sara. “I don’t even tell anyone [about the disorder] because you can almost see them rolling their eyes.”

In 2014, a New York judge dismissed the DUI charge of a woman who was pulled over after a motorist noticed her driving poorly. After police arrived, it was determined that the woman had a whopping 0.33 percent blood alcohol content.

Another characteristic of the disorder is an unusually high tolerance to the alcohol in their system.

The woman’s lawyer hired two physician assistants and a breathalyzer specialist to evaluate the woman over a 12-hour period. They found that the woman’s BAC was double the legal limit at 9:15 AM. At 6 PM, it was triple, and at 8:30 PM, it was four times higher. This was around the same time when the police pulled the woman over for DUI. In other words, her body was producing alcohol consistently throughout the day. Oddly, however, the woman did not exhibit any signs of intoxication until her blood alcohol content reach between 0.30 and 0.40 percent where she would feel dizzy.

Normal people with a blood alcohol content that high are usually unconscious at a minimum, some would be suffering from alcohol poisoning.

“My client does suffer from an extremely unusual condition, and we conducted very extensive medical research and presented our findings to the judge,” said the woman’s defense attorney, Joseph A. Marusak. “To my knowledge, this is the first time a DWI case has ever been dismissed on this basis in New York State, and as far as I can tell, it may be the first time in the country.”

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Company Behind Personal Breathalyzer Settles Dispute with FTC

Thursday, January 26th, 2017

I’ve never hidden my belief that if a personal breathalyzer can prevent a DUI, it should be used. That being said, it seems the company behind one of the most popular personal breathalyzers on the market has settled with the Federal Trade Commission (FTC) over false claims of its accuracy.

On the fifth season of ABC’s hit show “Shark Tank,” CEO and founder of Breathometer Inc., Charles Michael Yim, won over the “shark” investors with an invention called the “Breathometer” that allowed users to a detect their own blood alcohol content through their smart phone. The device attached to smartphone, would be blown into by the user, and the smartphone would calculate the BAC through an app. Yim’s pitch included the prospect that the Breathometer could prevent incidences of driving under the influence of alcohol.  The investors were so impressed with Yim’s invention that they offered up a $1 million dollar investment in exchange for a 30% stake in his startup.

The Breathometer became a consumer hit partly due to advertisements which claimed that the devices accuracy was backed up by government-lab grade testing. According to the FTC, sales for the Breathometer totaled $5.1 million.

However, more than three years after the episode aired, the FTC announced that Yim and Breathometer Inc. had settled a claim that the device “lacked scientific evidence to back up their advertising claims.” The complaint also alleged that the company knew that one variation of the Breathometer, the Breeze, “regularly understated” blood alcohol content levels.

While Yim and Breathometer Inc. did, in fact, settle with the FTC, they did not admit or deny the FTC’s allegations.

Under the settlement with the FTC, Yim and Breathometer Inc. are barred from making claims of the device’s accuracy unless the claims are supported through “rigorous testing.” The company also agreed to notify purchasers of the product to offer full refunds.

“People relied on the defendant’s products to decide whether it was safe to get behind the wheel,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a statement. “Overstating the accuracy of the devices was deceptive — and dangerous.”

Breathometer recognized the settlement on its website by stating, “We feel it is important to clarify that this settlement does not undermine our achievements in creating quality consumer health devices.”

Kevin O’Leary, one of the Shark Tank investors, responded to the settlement by stating that the company proactively stopped the manufacturing of the Breathometer in 2015 before the FTC’s initial inquiry.

I stand by my assertion that a personal breathalyzer is a good way to prevent a DUI. Just do some research beforehand on the reliability of what you purchase. According to digitaltrends.com, the best personal breathalyzer for 2016 was the BACtrack S80 Professional Breathalyzer which will run you $125. According to the website, the best smartphone breathalyzer was the BACtrack Mobile Smartphone Breathalyzer at $98, the best portable breathalyzer was the BACtrack Keychain Breathalyzer Portable starting at $26, and the best budget breathalyzer was the VastarAB120 Professional at $20.

Better to spend $125 (at most) to prevent a DUI than to spend the thousands of dollars it will cost you if you are arrested on suspicion of a DUI.

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Medical Marijuana Patients Can Now Fight DUI Charges in Arizona

Friday, January 13th, 2017

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.

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