DUI Defender

In a press release (following a press conference) the California Highway Patrol announced that up to 80% of the entire force will be working the holiday weekend from December 28, 2007 through midnight January 1, 2008. The funding for this incredible display of law enforcement is a grant from the National Highway Traffic Safety Administration, additional funds will permit the CHP to conduct at least 100 checkpoints and 65 DUI task force operations throughout 2008. Of course, Mother’s Against Drunk Driver’s was present to further its prohibition campaign.

On Friday the 22nd of 2006, Judge Gorgi of the San Francisco Superior Court ruled
that a San Francisco police roadblock from last September violated the Constitutional rights of drivers. In two separate DUI defense cases, I was able to successfully argue that the roadblock, set up on Geary at Steiner, did not meet the minimal requirements established by the United States and California Supreme
Courts.

Judge Gorgi found a number of violations existed but three, in particular, seemed to bother her. First was the admission that police would stop motorists who did nothing wrong except try to avoid the checkpoint even if they used the route the police created. Additionally, the lack of proper notice
before the check point coupled with its location led her to rule the entire event was wrong. Continue Reading »

This gentleman seems understandably upset.

Well in Texas many things are big including DUI fines. There is a special $3000 “driver responsibility fee” that you can get. One of the driving forces behind this law was Texas State House Transportation Chairman Mike Krusee.

Seems like driving legislation through the legislature is better for Krusee  than driving a vehicle – seems like he just picked up his 2nd DUI arrest and faces this special fine himself.

This article recently appeared in an Arizona newspaper. It relates the story of a woman who appeared to be under the influence by a citizen informant. He watched the woman drink glass after glass of white wine then load up her car with her 4 year old son and head out onto the highway. The citizen informant called the police when she ran a stop sign. The woman drove over to a local mall and the informant followed her, even pointing her out when the police arrived.

The police conducted a dui investigation which the overweight woman had trouble completing, finally she provided a breath sample which measured .04. Still, she was arrested, her child taken away from her as she was taken to jail. At the jail she provided a chemical test that was below the .04 she provided in the field. That didn’t stop the District Attorney from filing charges for DUI instead of apologizing for the conduct of law enforcement.

The truth of the matter was that she was driving home from dental surgery, she stopped for lunch and ordered a mimosa which she didn’t finish as it irritated her mouth, she then switched to water… which was served in a wine glass, repeatedly.

This article is a statement of the sad reality of how one person, who wasn’t doing anything wrong, ended up in a legal pickle.

Many times we are confronted with an under age driver who may be charged with a violation of Vehicle Code section 23136 or 23140 NOT 23152 which is the adult DUI statute. It raises the spector of avoiding the one year suspension, The accused has the right to request a hearing prior to the DMV imposing a one year suspension. The case can base the suspension on either a PAS test or an evidentiary test at the police station, jail, or crime laboratory. In truth, VC 23136 is an infraction which means that it is subject to fines in court but no suspension from the court, however, the under 21 year old driver has a very slim chance of winning the APS hearing as the burden of proof born by the DMv is very low, while they must lay a foundation to use the PAS device (sometimes challenging as the law enforcement agencies frequently fail to comply with accepted standards for maintaining and calibrating the hand held device) and frquently we are able to preclude that number, the subsequent evidentiary test is much more difficult to defeat.

Following the conclusion of the 3 judge panel regarding the “culture of compromise,” Barry Logan the director of the Washington State Patrol Laboratory announced his resignation. At the conclusion of the investigation and the ultimate decision rendered by the panel relating to the failures of the crime lab to protect the rights of the accused and the integrity of the laboratory procedures. While the Director will stay on until March to oversee the changes in procedures to ensure that the problems raised by the old regime are cleaned up.

Earlier this week a three judge panel finally concluded the drama in King County regarding the Washington State Patrol’s Toxicology Laboratory and oversight of breath testing program. The 29 page indictment found that many of the safeguards employed in proper laboratory protocols were not followed and in fact ignored by the Lab Manager, Anne Marie Gordon.

The panel found that Ms. Gordon authenticated test solutions that were prepared by other laboratory personnel without independent validation. The laboratory protocols called for calibration/accuracy testing solutions to be prepared and independently tested by the lab personnel. The importance of these solutions rests in that the entire breath testing program relies on the accuracy of the solutions to validate the measurements taken by breath testing equipment. The solutions are heated and the vapor is used to simulate human breath, that vapor is measured by the breath testing equipment and the result is compared to the “known” value. Of course, the problem arises when the “known” value isn’t actually “known” and the machines are calibrated to the unknown value. Without knowing what the machine is actually measuring it is difficult to verify the accuracy of the accused citizen’s breath test.

The panel found that other procedures were employed by the lab that resulted in a “culture of compromise.”

A couple of weeks ago, Matt Roloff, one of stars of the television show, Little People Big World went to trial on charges that he drove his car while he was under the influence of alcohol and failed to maintain his lane. He was arrested in 2006 however it took until earlier this month for his case to actually go to trial. He stated that he was driving his wife’s car that was outfitted with pedals custom fit for her, therefore her car couldn’t accomdate his stature, the arresting officer indicated that he could detect a moderate odor of alcohol and Mr. Roloff declined to provide a chemical test.

While the Jury was deliberating, one of the jurors searched the internet for additional information, this is forbidden as a Jury may only properly consider evidence and argument provided during the trial. Instead of requesting a mistrial for juror misconduct, Mr. Roloff’s attorney waived the jury and requested the Judge to make a decision based on the evidence, that decision was “not guilty.”

As law enforcement steps up its efforts to investigate and subsequently arrest more drivers for driving under the influence we are beginning to see an increase in driving under the influence of drugs cases, or more commonly called, “drugged driving.” We continue to see cases with Ambien and other sleep aids more commonly that those involving marijuana but we are seeing an increase in marijuana as well.

Marijuana cases cause specific problems for law enforcement as there are no standards for quantifying the blood or urine concentration that will result in impaired driving. It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose. The parent drug is the actual drug consumed while the metabolyte is the processed, but still measurable residue from the drug. Unfortunately, many involved in law enforcement are unaware that the metabolyte is not active and is not currently affecting/impairing the test subject.

In fact, the National Highway Traffic Safety Administration (NHTSA) concedes, “It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations. It is possible for a person to be affected by marijuana use with concentrations of THC in their blood below the limit of detection of the method. Mathematical models have been developed to estimate the time of marijuana exposure within a 95% confidence interval. Knowing the elapsed time from marijuana exposure can then be used to predict impairment in concurrent cognitive and psychomotor effects based on data in the published literature.”

While more studies need to be conducted on the effects of marijuana on driving, NHTSA, itself states that “some drivers may actually be able to improve performance for brief periods by overcompensating for self-perceived impairment.” For information see the NHTSA article about Marijuana and human performance.