California Proposes New Law to Allow Roadside Marijuana Test

Monday, April 27th, 2015

Assembly Bill 1356 has made its way to Capitol Hill and, if passed, would allow law enforcement to use a device similar to a breathalyzer that could detect the presence of marijuana and a number of other drugs in a driver’s system in a matter of minutes.

“It’s very clear that the usage of marijuana is becoming more and more common,” said Assemblyman Tom Lackey from Palmdale, California, who proposed the law.

The law would expand California’s current implied consent law to “provide that a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or oral fluids for the purpose of determining the drug content of his or her blood or oral fluids.”

Currently, if law enforcement want to test for the presence of drugs in a driver’s system following the lawful arrest of that driver, they need to withdraw blood which could take hours.

According to CBS San Francisco, officers would be able to use a portable drug detection device called Alere™ DDS®2 that would allow law enforcement to perform a test on drivers’ oral fluids gathered from the gum line and cheeks. The swabbed fluid samples could provide results within five minutes according to the device’s developers.

"We’d be testing for marijuana, cocaine, opiates, amphetamines, methamphetamines and benzodiazepine," said Fred Delfino, spokesperson for Alere DDS 2, the company behind the new device.

You may recall from my previous posts that the Los Angeles Police Department had been given a federal grant to test these devices.

“The number of drugged drivers is increasing rapidly, and those of us in law enforcement simply do not have the tools necessary to determine the level of impairment on anything other than alcohol,” said Ron Lawrence, chief of police for Rocklin. “If the legalization of marijuana is in our future, we in California law enforcement need to be prepared to deal with the roadways and safety precautions of tomorrow."

The problem is that the device does not test for impairment. It only tests for the presence of the drugs.

It has yet to be determined what amount of drugs found in a person’s system will constitute impairment. According to Lackey, that part of the bill has not yet been worked out.

There is an established correlation between blood alcohol content, specifically the legal limit of 0.08 percent, and alcohol impairment. Unlike alcohol, however, there is no such correlation between the presence of drugs and impairment.

"I think that people want to have a clear-cut, black-and-white solution," says Mason Tvert, the communications director for the Marijuana Policy Project, a pro-legalization group. "They want a specific number that we can use to just say that this person is impaired or not. Unfortunately, it’s a little more of a gray area than that."

Unfortunately, Tvert is correct and that gray area can lead to sober drivers getting arrested for DUI of marijuana.

Tetrahydrocannabinol or THC is the active component of marijuana. Unlike alcohol which dissipates after several hours, THC can stay in a person’s system for weeks at a time and well after the person has smoked.

Simply put, the mere presence of THC in a person does not necessarily mean that the person is impaired and incapable of safely operating a vehicle and the new device, if AB1356 passes, could be used to prosecute sober drivers.

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Lawmakers Seek to Close “Loophole” in SC DUI Law

Monday, March 2nd, 2015

In 2009, an amendment to South Carolina’s DUI laws required arresting agencies to video record any field sobriety testing during a DUI arrest. Prosecutors and law enforcement are now complaining that it is nearly impossible to convict a person of a DUI because the word “any” is being used as a loophole to get DUI cases thrown out.

 Earlier this month, in a room at the South Carolina capitol, 16th Circuit Solicitor Kevin Brackett presented examples of such cases to a crowd of over 100 people including lawmakers, advocates and law enforcement officials. The cases he presented never made it to a jury trial because of video  “problems” such as the suspects’ feet being briefly obscured by the police cruisers’ hoods, shadows partially obscuring a person’s head, and a person’s back foot obscuring the view of their front foot as they perform field sobriety tests.

"A person could wreck into another vehicle, blow a .25 (BAC), have thrown up all over themselves and admit to drinking 20 beers over the course of the day," Assistant Solicitor Matthew Shelton explained to NBC Charlotte, "but if your feet are blocked by the officers patrol car hood during the field sobriety test, the case is being thrown out before it even goes to a jury. We’re not talking about just the video being tossed out as evidence. The whole case. A jury never gets to see the case."

I’ve written in the past on the need for transparency in DUI investigation and I am fully in favor of requiring law enforcement agencies to be equipped with dashboard cameras. You may remember my previous complaints, however, about law enforcement taking DUI suspects out of the view of the dash-cam to conduct field sobriety tests. In their police report, officers claim that suspects fail the field sobriety tests without an explanation as to how the suspect failed. Then, notwithstanding the officer’s report indicating that they failed, it is later determined that these DUI suspects were not actually driving under the influence.

The 2009 amendment was intended to prevent such devious methods of circumventing the transparency provided by a dash-cam.

This notion is lost on lawmakers as they have since introduced bill H.3441 into the South Carolina House. The proposed law changes the wording of the 2009 amendment to no longer require that any field sobriety test given be recorded. Additionally, the law would prevent a case from being totally dismissed due to a technicality in the video.

The wording of the proposed law reads in part:

“When a law enforcement officer is investigating a person suspected of [driving under the influence] that officer or another officer participating in the investigation or arrest should make a reasonable attempt to video record the person’s conduct at the incident site and the breath test site.”

Furthermore, under the H.3441, the original words of the 2009 amendment “The video recording at the incident site must include any field sobriety test administered” are completely stricken.

If the investigating officer is unable to record the incident, they “shall submit a sworn affidavit” stating one or several enumerated justifications for not being able to do so.

Unfortunately, this proposed change once again opens the door to potential dishonesty by law enforcement in investigating DUIs. In my experience, officers are often dishonest in writing their police reports which, by law, must be truthful. If such is the case, what good is requiring them to submit an affidavit that the video was unavailable under the proposed law? Dishonesty is dishonest regardless of the title of the document.

There is nothing wrong with the 2009 amendment and if law enforcement and prosecutors want to convict people of driving under the influence, they need to do a better job adhering to the law.

The only thing to ensure accuracy and truthfulness in DUI investigations is actual transparency, not the promise of accuracy and truthfulness.

 

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Can Out-of-State Priors Increase a California DUI Sentence?

Monday, July 28th, 2014

If a person suffers a California DUI conviction, any subsequent California DUI conviction within a ten year period carries with it an increased punishment.

Generally a first-time California DUI conviction carries three to five years of summary (informal) probation, up to six months in jail, between $390 and $1,000 in fines, completion of a court-approved three month DUI program, and a six-month license suspension.

A second-time California DUI conviction carries three to five years of summary probation, a minimum of 96 hours to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court-approved 18 month DUI program, and a two-year license suspension.

A third-time California DUI conviction carries three to five years of summary probation, a minimum of 120 days to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court approved 30-month DUI program, and a three-year license revocation.

What if someone suffers, say, a Florida DUI conviction in 2007 and then gets arrested this year in California for DUI? Can the Florida conviction be used to increase the punishment in the California DUI conviction?

As the answer is with many legal questions: It depends.

It depends on whether the conduct that led to the Florida conviction (or any out-of-state conviction) meets the elements of a California DUI charge.

In Florida, the DUI statute reads:

“A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”

Florida’s statute requires that a person impaired “to the extent that the person’s normal faculties are impaired.” This standard is less strict than California. California requires that a person be impaired to an appreciable degree. Thus, a person may be deemed impaired under Florida’s standard, but not necessarily under California’s.

Florida’s statute also requires that someone drives or is “in actual physical control of a vehicle.” This makes Florida what is called a “dominion and control state.” A person can have dominion and control over a vehicle by simply being in the driver’s seat. California’s DUI law, on the other hand, requires that a person actually drive the vehicle. Therefore, a person can be convicted under Florida’s DUI law by sitting in the driver’s seat while intoxicated. However, someone sitting in the driver’s seat while intoxicated cannot be convicted under California’s DUI law.

Let’s put this into context as it relates to whether an out-of-state prior can be used to increase the punishment in a California DUI case.

In 2007, John Doe is arrested and convicted in Florida under Florida’s DUI law because he was drunk and unconscious in the driver’s seat of a parked vehicle. Seven years later (and within the 10 year “washout period”) in 2014, John Doe is arrested in California under California’s DUI law when he is spotted swerving on the highway by law enforcement.

Prosecutors will be unable to use John Doe’s Florida conviction to increase the penalties in his California case because the facts which gave rise to the Florida conviction would not meet the elements of California’s DUI law because California requires that a person actual drive the car.

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Proposed “Gun Violence Restraining Order” Could Affect DUI Offenders

Monday, June 2nd, 2014

In the wake of the tragic shootings last weekend at UC Santa Barbara, two Democrats in California’s State Assembly have announced their plans to introduce a new gun control measure which could prohibit those who have been convicted of a DUI from owning and carrying a gun.

The “gun violence restraining order,” proposed by Nancy Skinner (D-Berkeley) and Das Williams (D-Santa Barbara), would create a system where a legal gun owner can have their guns confiscated if a family member believes they have a mental health problem that the state is not aware of. The “restraining order” could be issued upon gun owners who have passed NICS background checks, registered their firearms with the state, and have not broken any laws.

The idea for the “gun violence restraining order” is part of a recommendation from the Consortium for Risk-Based Firearm Policy which also suggests firearm prohibitions for other “risk factors” including “drug or alcohol use (linked to DUI convictions or misdemeanors involving a controlled substance).”

I won’t comment on the “restraining order” as it applies to those who have been identified by family members as having mental health problems, although I do have my opinions.

However, when it comes to prohibiting those who have suffered from a DUI conviction from owning a gun, I have an issue that I will express.

This isn’t the first time that legislators have attempted to place gun ownership restrictions on DUI offenders.

Last year, Democratic Sen. Lois Wolk of Davis introduced SB 755, a bill which would have prevented some DUI offenders from having guns for a period of 10 years. Fortunately, California Governor Jerry Brown vetoed the bill saying, “I am not persuaded that it is necessary to prohibit gun ownership on the basis of crimes that are non-felonies, non-violent and do not involve misuse of a firearm.”

Also last year, Connecticut Governor Dannel P. Malloy proposed a law that would ban DUI offenders from owning a firearm. Supported by Connecticut democratic senator Martin Looney, the proposed law was intended to prohibit possession of firearms by people who have demonstrated “irresponsible behavior” and a “willingness to break the law.”

I’ve never been the biggest advocate for gun rights, but the suggestion that a DUI offense is a “risk factor” which should prevent someone from owning a gun is absurd.

The Consortium’s recommendation for a prohibition on gun ownership targets groups at heightened risk of violence. According to the Consortium, that includes individuals convicted of two or more DUIs in a five-year period. What is it about a DUI that’s violent? Taking into account DUIs which involve injuries or death, the “violence” involved unintended violence which has nothing to do with the propensity to misuse a gun.

Currently, certain convictions can prevent individuals from possessing a firearm. However, those convictions at least have a causal link to potential future gun violence. Driving under the influence, however, does not.

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Another Weapon in the “War on Drunk Driving”: Forced Catheterization

Thursday, May 22nd, 2014

Just how far are we as a free nation willing to go in MADD's jihad on drunk driving?  

Well, how about ramming a catheter up a male DUI suspect's penis to get a urine sample for alcohol analysis — even after he has already had a blood sample taken?


C.P. Man Seeking $11M in Catheterization Lawsuit

Hammond, IN.  May 12 – A Crown Point man is seeking at least $11 million in damages from Schererville, two of its police officers and the owners of Franciscan St. Margaret Mercy Health in a federal lawsuit in which he said he was subjected to a forced catheterization following a traffic stop.

William B. Clark, a former Schererville resident, is suing the town, police Officers Matthew Djukic and Damian Murks and Franciscan Alliance Inc., doing business as St. Margaret Mercy…

In the lawsuit filed Friday in U.S. District Court, Clark, 23, claims he was driving on U.S. 30 near the intersection of U.S. 41 in Schererville last May when he was stopped by Djukic. According to the lawsuit, Djukic allegedly observed the vehicle, which contained one other occupant, driving erratically and claimed he detected a moderate odor of alcohol in Clark's vehicle. Murks allegedly responded in a separate car.

The suit states that Djukic falsely claimed Clark's breath test results were 0.11, exceeding the legal limit of 0.08. The lawsuit also alleges the town failed to provide proof of the test result when a motion for discovery was filed in the criminal case against Clark, which is still pending.

According to his lawsuit, Clark submitted to a blood test at the Dyer hospital that showed his blood alcohol was below the legal limit. It states Djukic, however, became impatient with Clark's inability to urinate to provide a urine sample and made an effort to forcibly get the sample. The suit claims Djukic physically restrained Clark while hospital personnel inserted a catheter to extract the fluid.

The suit claims Murks either used inappropriate force against Clark or failed to take reasonable steps to protect him from being subjected to the use of such force.

The lawsuit states Clark allegedly "loudly moaned in pain" as the process began. It adds that the actions taken to obtain the sample were "painful, degrading and humiliating."…


An isolated incident?  Hardly.  See my previous posts:  Catheter Forced up Penis After DUI Arrest (Washington) and DUI Suspect Forced to Have Penis Catheterized (Utah), to name just two such incidents.   

What's next for citizens suspected of drunk driving?  Why not strap female DUI suspects down on a table and forcefully extract urine samples from them as well?
 

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