May 31, 2012

More on Widespread Breathalyzer Inaccuracies

In my last post (Hundreds of DUI Convictions in Doubt: Inaccurate Breathalyzers), I featured a news story about widespread breathalyzer failures in San Francisco.  I also mentioned that this was not an isolated situation, pointing out massive failures of the devices in other cities across the country.

In a follow-up yesterday, the San Francisco Chronicle has confirmed this:


SF Not Alone in DUI Test Flaw, Dropped Convictions

San Francisco, CA.  Mar. 12 – In facing the possible loss of hundreds of drunken-driving convictions because of a testing controversy, San Francisco is not alone.

District Attorney George Gascón said last week that his office was reviewing cases going back to 2006 because of possible police mismanagement of the breath-test devices used to measure drivers’ blood-alcohol levels. Public Defender Jeff Adachi said as many as 1,000 convictions could eventually be overturned.

Other jurisdictions, including Santa Clara County and Ventura County, have had to drop some drunken-driving convictions because of problems with faulty or mishandled breath-test devices – although fears of mass dismissals have proved unfounded.

San Francisco’s troubles began when attorneys with the public defender’s office discovered suspicious bookkeeping in the Police Department’s accuracy testing of the devices. The entries suggested that officers weren’t conducting the checks at all.

A similar situation in Philadelphia last year resulted in the district attorney offering new trials to nearly 1,500 people who had been convicted of driving under the influence over the previous 15 months.

Police there revealed in March 2011 that four breath-test devices – different models from those used in San Francisco – had not been properly calibrated, said Tasha Jamerson, a spokeswoman for the district attorney’s office…

Officers in the field there ask suspected drunken drivers to exhale into portable testing devices to estimate whether a driver’s blood alcohol level is above the legal limit of 0.08 percent. In April 2010, Santa Clara County authorities learned that condensation was building up in the device, the Alco-Sensor V, that San Jose and Palo Alto police had been using for nearly all of 2010, resulting in erratic readings.

The device was a newer model of the Alco-Sensor IV that San Francisco police and many other Bay Area law enforcement agencies use…

Ventura County dismissed at least 64 cases in 2011 because of the same condensation glitch, said Senior Deputy District Attorney Stacy Ratner.

Intoximeters, the Missouri company that makes the Alco-Sensor devices, did not respond to requests for comments…


Although the news story only mentioned California counties, as well as Philadelphia, the widespread unreliability of these machines — upon which criminal convictions are based — goes far beyond that state.  See, for example, Attorney General Finds Widespread Breathalyzer Inaccuracies: Police Shut Down All Machines, 400 Wrongly Convicted in Washington: Faulty Breathalyzers and More Massive Breathalyzer Failures.  

For a confidential government document verifying the unreliability, see Report: Breathalyzers Outdated, Unstable, Unreliable.


(Thanks to Andre Campos.)

This entry was posted on Tuesday, March 13th, 2012 at 9:08 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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May 29, 2012

Son of Famous American Televangelist Arrested

January 25th, 2012 Allen Trapp Posted in Top 50 DUI Arrests of All-Time, DUI Arrests That Made the News |

     Richard Roberts, former president of Tulsa’s Oral Roberts University and son of the the man who founded the school and spoke to millions on his Sunday morning program for decdades, was arrested early on morning of January 24, 2012, on suspicion of DUI and speeding, officials told The Times.

     Shortly after midnight an Oklahoma Highway Patrol officer stopped Roberts, who was reportedly driving a black 2006 Mercedes at 93 mph in a 65 mph zone on a highway west of U.S. 169, according to the arrest report.  After stopping Roberts, 63, the trooper noted that he smelled strongly of alcohol.  Roberts allegedly failed two coordination tests and his breath test result was .11.  Roberts was booked into the Tulsa jail and released a few hours later on $1,100 bail, officials told The Times.

     He resigned as president of Oral Roberts Universityin 2007 after he and his family were accused of abusing university and ministry assets.  Later he was named President Emeritus.  All ORU employees are required to sign a pledge to avoid consuming any alcoholic beverages.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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May 28, 2012

Congress Launches Study into DUI Ignition Interlock Technology

By guest-writer

The U.S. Congress has launched a study into the effectiveness of “in-vehicle” technology, such as ignition interlock systems, when trying to prevent drunk drivers from starting their cars, according to a report from Politico.com.

In a recent transportation bill passed by the Senate, politicians subtly inserted a provision that asks the National Highway Traffic Safety Administration (NHTSA) to study the potential effects of a “more widespread deployment” of in-vehicle devices.

The research will be conducted by the Driver Alcohol Detection System for Safety, which is a joint effort between the automobile industry and the NHTSA to reduce the overall occurrence of drunk driving.

The goal of the research is to design technology that is “far less intrusive” than the current ignition interlock devices, which require drivers to blow into a breathalyzer device that is attached to the car’s dashboard and wait up to a minute for the breath sample to be measured.

Several states require repeat DUI offenders to have these devices installed in their cars, and some states have even proposed laws that would require first-time drunk drivers to blow into these machines before starting their cars.

Of course, the efforts by Congress to develop better DUI prevention technology have been met with some resistance from civil liberties advocates, as well as the alcohol industry itself.

According to Sarah Longwell, the managing director of the American Beverage Institute, the bill could eventually lead to a mandate that forces all car makers to insert these devices into their cars as original equipment.

This, naturally, upsets the American Beverage Institute, which represents alcohol distributors and restaurants that sell alcohol, because the presence of alcohol testing devices in cars could dramatically reduce the number of people willing to go out on the town to drink.

In response to these concerns, those who support the bill claim that car companies would not necessarily have to insert these devices into every new vehicle.

According to J.T. Griffin, a senior vice president with Mothers Against Drunk Driving, “car companies right now are trying to figure out how to do it and if it can even be done. The goal is this would be a voluntary technology.”

However, Griffin also said his organization believes that, ultimately, “every parent in America is going to want this on their vehicle.”
If this prediction proves correct, alcohol detection systems could eventually become as common a car feature as radios, windows, and air conditioning.


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May 27, 2012

Orange County DUI Checkpoints: Costa Mesa DUI Checkpoint Announced

The Best DUI Lawyers in Orange County are letting you know that the Costa Mesa Police Department will be conducting a DUI/Drivers License checkpoint on Saturday, April 28, 2012, at an undisclosed location within the city limits between the hours of 8:00 p.m. and 2:00 a.m.  If you are stopped, provide license, registration, and don’t answer questions about drinking.

Interstate 405 at Costa Mesa, Orange County, S... Orange County DUI Checkpoint in Costa Mesa announced

Be careful out there, and if you have questions for a DUI lawyer, call me at (877) 568-2977.

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California, Driving under the influence, dui checkpoint locations, Dui Checkpoints, dui checkpoints in orange county, lawyers, National Highway Traffic Safety Administration, orange county, Orange County California, police, United States

This entry was posted on Thursday, April 26th, 2012 at 12:54 pm and is filed under Dui Checkpoints, DUI News, DUI politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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May 25, 2012

More Blood Test Woes

If it's not scientific- then it's not evidence. If it's not scientific- then it's not evidence.

Once again, DUI blood testing has been compromised by sloppy and reckless technicians:

The state is retesting 1,700 DUI blood samples after a laboratory employee failed to follow proper procedures, which skewed the results of the tests.

The mistakes open the door for defense lawyers to challenge all of the blood testing in driving-under-the-influence cases conducted by the Colorado Department of Public Health and Environment’s lab.

“There was a situation where an outside lab ran a sample that caused us to rerun a sample, and we were able to track that to a certain employee who was not following the standard operating procedures,” health department spokesman Mark Salley said.

The lab processes DUI bloodwork for 225 law enforcement agencies in Colorado. Some law enforcement agencies, including Denver police, have their own labs. Others contract the bloodwork out to an independent lab.

We have covered the issue of DUI blood testing problems in our series: Challenging DUI Blood Evidence.

In short, blood testing can be very accurate in theory, but in practice it is marred by the overworked and under-trained staff at these crime labs and their shortsightedness.  Forensic labs in this country are horribly managed and commit gross injustice by not maintaining the scientific standards they are supposed to uphold.

Even the National Academy of Sciences found that the nation’s crime labs are severely fractured and called for an overhaul of the system.

The matter is simple, if you don’t follow scientific procedures, the test is not scientific.  If it’s not scientific- it’s not evidence.


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Tampa Bay Relief Pitcher Matt Bush Charged With Drunk Driving

By guest-writer

It’s been a tough week for major league pitchers and drunk driving adventures. On the same day that fellow pitcher Bobby Jenks was arrested for a DUI, Tampa Bay relief pitcher Matt Bush was also arrested for driving under the influence.

Bush, however, may be in much more trouble than Jenks, as Bush reportedly struck a motorcycle driver who is in serious condition in a Florida hospital, according to a report from the Tampa Bay Times.

Last Thursday night, Bush was arrested by the Florida Highway Patrol for driving under the influence and feeling the scene of an accident, sources say.

According to a police report, Bush was driving a Dodge SUV at around 5 p.m. when he struck a motorcycle that was being driven by 72-year-old Anthony Trufano. During the accident, Trufano suffered numerous injuries, including broken bones and hemorrhaging in his brain.

At the time of the collision, Bush’s blood alcohol content was reportedly .180, which is more than twice the limit at which DUI laws assume a person is too impaired to drive. Because of the serious nature of the crime, police are currently holding Bush in jail without bail.

Sources indicate that alcohol issues have plagued Bush since he was drafted No. 1 overall in 2004 by the San Diego Padres. The Rays, however, chose to take a chance on Bush and had been pleased by Bush’s efforts to turn his life around.

But the team may now be regretting its decision. In an official statement, the Rays said “[o]ur thoughts and prayers go out to the victim and his family. We will reserve further comment until we learn more about the incident.”

The police report indicates that Bush told police he had a “serious alcohol problem” and that he did not remember seeing Trufano or his motorcycle before the crash.

One witness at the scene told the Tampa Bay Rays that Bush’s car drove directly over Trufano’s head, and that he was surprised the driver of the motorcycle was not dead.

Remarkably, Trufano survived the accident, although he is currently in serious condition at Lee Memorial Hospital. Trufano’s daughter-in-law told sources that the victim was able to speak, but he does not remember what happened on the night of the crash.

The daughter-in-law also expressed her disbelief that Bush fled the scene of the accident. In her words, “I just don’t understand how someone can run over someone’s head and leave them in the middle of the road.”


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May 23, 2012

Obama’s Uncle Gets the Royal Treatment

And I thought only cops and judges got special handling when they drive drunk….


On the Road Again: Obama’s ‘Drunk Driving’ and Illegal Immigrant Uncle Allowed to Drive Again After Hardship License is Approved 

Boston, MA.  April 3 –Just a week after President Obama’s uncle pleaded guilty to drunk driving and surrendered his driver’s licence, he’s back behind the wheel.

Onyango Obama, 67, was approved for a ‘hardship licence’ yesterday, which allows him to drive in Massachusetts from noon to midnight.

The Boston Herald reported that Obama, the half brother of the president’s father, convinced a Registry of Motor Vehicles panel that an inability to drive would adversely affect his job as a liquor store manager.

And, despite his status as an illegal immigrant, his request was approved…

Obama, of Kenya, is also appealing a deportation order that dates to 1992, when he failed to renew his application to remain in the U.S.

The drunken driving charge will be dismissed if he stays out of trouble for a year, officials said.

Obama was arrested in Framingham in August after a police officer said he made a rolling stop at a stop sign and nearly caused the officer’s cruiser to crash into his sport utility vehicle.  Once pulled over, the DA said Obama’s speech was slurred, ‘his eyes were red and glassy and there was an odor of alcohol coming from inside the motor vehicle.’

Obama then failed several field sobriety tests and his blood alcohol was almost twice over the legal limit, reports the Herald.


It must be nice to be the uncle of the President….

This entry was posted on Wednesday, April 4th, 2012 at 7:30 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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May 21, 2012

DUI Driver Sentenced to Year in Prison for Hitting 9-Year-Old Boy

By guest-writer

A drunk driver has been sentenced to a year in prison after he struck a nine-year-old boy who was leaving a San Francisco Giants game last year, according to a report from the San Francisco Chronicle.

The man, 22-year-old Andrew Alan Vargas, appeared in court last week for sentencing and expressed his remorse to the family of the boy whom he struck with his pickup truck last August.

Before the crash occurred, young Ryan White was walking with his family back to their San Francisco hotel after watching a baseball game at AT&T Park. The Whites, who are from Yardley, Pennsylvania, had traveled to the Bay Area to watch their favorite team, the Philadelphia Phillies.

As a result of the accident, which was caused by Vargas’s misguided decision to drive the wrong way down a one-way street, Ryan White suffered a lacerated liver and a fractured pelvis.

The parents of the child, Ken and Roseanne White, were unable to attend the sentencing hearing because they had to stay in Philadelphia, where their son was undergoing his fourth surgery since the crash, sources indicate.

In a letter to the judge, however, the parents made pointed remarks to Vargas, claiming that he was “incarcerated because of [his] actions” but they also noted that their son was also incarcerated because of the man’s actions.

In their letter, the Whites said that Ryan’s injuries have rendered him unable to do all of his favorite physical activities, including swimming, bike riding, and performing martial arts.

To his credit, Vargas did apologize profusely, both to the judge and to Ryan White and his family, for his decision to drive under the influence of alcohol.

In his statements to the sentencing judge, Superior Court Judge Nancy Davis, Vargas claimed, “I have learned so much out of this, and I’m determined to turn things around for them and will do everything in my power to avoid others from making the same mistake that I committed.”

Interestingly, Ryan White’s parents supported Judge Davis’s decision to only sentence Vargas to a year in prison (sources suggest that, had she wanted to, the judge could have sentenced Vargas to a much lengthier prison term).

Sources say that the family gave their approval to a decision last month in which Vargas pleaded guilty to a felony DUI charge with great bodily injury. Charges related to a hit-and-run were dropped.

In the White family’s words, they did not want Vargas “to sit in jail forever and do nothing” because, from what they had heard, he was “a good young man.”


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May 20, 2012

Bizarre (and Downright Cruel) DUI Punishments

Breath Testing is Woefully Inaccurate and is being used as the basis for people going to jail (many times falsely!) Breath Testing is Woefully Inaccurate and is being used as the basis for people going to jail (many times falsely!)

In an effort to “get tough on crime,” many state and local governments enact laws which are bizarre and cruel. For example, in Montana, repeat drunk driver are forced to get tested twice a day to ensure they have not had anything to drink.  While this might sound like a solution to some, it is a scary precedent based on unfounded and unreliable technology.

Twice-daily testing of repeat DUI offenders ramps up in Missoula

Think losing your driver’s license because of drunken driving is tough?

DUIs are about to get a lot more inconvenient in Missoula County.

Soon, repeat drunk drivers will have to report twice a day to the Missoula County Pre-Release Center for breath tests to prove they’re staying sober. Plus, they’ll have to pay for that particular privilege – so taxpayers won’t have to.

“There aren’t any public funds going into the program,” said Sue Wilkins, executive director of Missoula Correctional Services. “It’s a self-pay offender or defendant program.”

When Wilkins says “program,” she’s referring to Missoula County’s Sobriety and Accountability Program. The idea became better known last year when the Legislature approved a similar “24/7 Sobriety Act” for repeat DUI offenders slowly being implemented around the state.

Under 24/7, participants show up twice a day – in Missoula County, at 7 a.m. and 7 p.m. at the Pre-Release Center on Mullan Road – and provide a breath sample to prove they’re sober.

Skip a test and the county puts out a warrant.

Flunk a test, go directly to jail.

“It’s what makes 24/7 effective,” Wilkins said. “It is inconvenient, and kind of embarrassing, too.”

I, for one, have some major problems with this measure:

Breath testing technology is woeful inaccurate and non-specific to ethanol.  There is a high rate of false positive and the police can’t even keep their machines in order.  People will wrongly go to jail because of this.How will a person who has to be tested twice a day be able to attend school or hold a job?Is it our goal as a society to “embarrass” and alienate these people or should we be dealing with them in a more constructive manner?Does this type of program have any long-term benefits?  Will this person be rehabilitated through these measure?The article mentions that already 40 people are being testing twice-a-day and many more are expected.  Who is calibrating and maintaining these machines? (Police have proved time and time again that they are incapable of doing this.)

In reality, these types of laws only serve to further stigmatize someone who has been convicted of DUI and push them further out of our society. Are we seeking to prevent crime (meaning DUI) or are we trying to change people and be the moral police?


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May 18, 2012

Super PACs Now Buying Judges, Too

We all know the impact the Super PACs are having on who will be representing us in our state and national governments.  Most senators, congressmen, governors, etc., are now pretty much bought-and-paid-for by Big Money’s deep pockets.  This is largely thanks to the U.S. Supreme Court’s recent decision which found that financial limits cannot be placed on them.  Apparently, the Court feels that corporations are "people", too, and therefor have a constitutionally-guaranteed right of free speech.  In other words, corporations and fat donors dumping tons of money on political candidates are protected by the Bill of Rights!  

This, of course, opened the floodgates:  Big Money is now busily exercising their newly-discovered "free speech" by  buying up judges, too….


Super PACs, Donors Turn Sights on Judicial Branch

Orlando, FL.  Mar 29 – Just before sunset on a recent evening, scores of lawyers in dark suits and polished loafers streamed into the swanky 18th-floor ballroom of a downtown high-rise here. They sipped chardonnay and nursed Heinekens, munched on cheese cubes and made small talk.

The invitation to the event had asked for a “suggested contribution” of $500 to each of three candidates, who were now mingling sheepishly among the crowd. They were no ordinary politicians. In fact, they weren’t politicians at all, but rather Florida Supreme Court justices. Each has been in office since the 1990s, each retained by voters overwhelmingly in previous elections, and each now reluctantly campaigning — for the first time.

 While deep-pocketed super PACs and ultra-wealthy donors have attracted plenty of attention in the presidential contest this year, they are also making waves further down the political food chain. The mere possibility that a rich benefactor or interest group with endless amounts of money could swoop in, write massive checks and remake an entire court for ideological reasons has prompted judges here in Florida and elsewhere to prepare for battles they never expected to fight.

The three justices sipping water and shaking hands in the ballroom decided months ago that they needed to campaign early and hard. They saw two of their colleagues targeted in 2010 after the court refused to allow a ballot measure opposing a key provision in President Obama’s health-care plan. They knew the organizers of that effort, angry about what they call “judicial activism,” had promised to step up their campaign and had formed a political organization that by law can raise unlimited money.

The judges were less than excited about having to ask people for money.

“It is almost embarrassing to be doing it,” Justice Fred Lewis said…

Those challenging the judges say their actions offer a way to inform the public and hold the judiciary accountable. The judges say they welcome accountability but want to protect the independence of the bench.

Like judges elsewhere, those in Florida remain rattled by what happened two years ago in Iowa, where three state Supreme Court justices who had upheld a ruling in favor of same-sex marriage lost their jobs after a vitriolic million-dollar campaign to unseat them — money coming almost entirely from outside the state. In the preceding decade, not a single dollar had reportedly been spent on Iowa’s high court elections…

Judicial elections have long drawn the interest of wealthy benefactors, business and labor groups, and trial lawyers, but watchdog groups say they are particularly troubled by a new trend: The universe of big donors has grown smaller and more concentrated.

In a 2010 study that examined 29 judicial races, the watchdog group Justice at Stake found that the top five spenders averaged $473,000 apiece, while all other donors averaged $850. In addition, loopholes in disclosure laws gave those big donors ways to spend money “in substantial secrecy,” the report found.

“Outside forces are becoming a bigger deal,” said Roy Schotland, a Georgetown University law professor and expert on judicial elections. “We’re seeing more takeover of the races from the outside.”

Schotland said state judicial races are increasingly becoming “floating auctions,” in which special-interest groups focus money and manpower in states where they can upend judges they don’t like. “The justices are like sitting ducks,” he said…


I wonder what the going price is for a judge?

This entry was posted on Tuesday, April 10th, 2012 at 9:18 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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May 16, 2012

Who is fighting against ignition interlocks? (Hint: It’s not DUI lawyers!)

Orange County Barristers Wine Tasting A night on the town could be a thing of the past

As a DUI Lawyer in Orange County, I try to keep ahead of developments in breath and blood testing.  But technology from the automotive world might be a game changer as far as how DUI s might be handled, or prevented, in the future.

Several automotive manufacturers have been meeting with, partnering with, and developing experimental technology to detect alcohol, including alcohol emitted from the skin in sweat through the steering wheel, or from the breath.

In 2008, the National Highway Traffic Safety Administration (NHTSA) launched a 5-year campaign to develop ignition interlocks as standard equipment in all vehicles. NHTSA and the Automotive Coalition for Traffic Safety—which is funded by auto manufacturers—have budgeted $10 million to solicit research and development on the widespread use of this in-vehicle technology.

Mothers Against Drunk Driving (MADD) has asked Congress for another $60 million to be allotted annually for alcohol detector development.  So there is big money behind this.

The group opposing this?  It’s the American Beverage Institute, which fears this would prevent people from going out for even one drink.  Of course, as my fellow Orange County DUI Lawyers know, a machine is only as accurate as the maintenance, calibration and margin of error for the device allows it to be, assuming no deviations from standards.  Garbage in, garbage out, as they say, and in this case, a false positive or machine malfunction could have serious consequences to the driver.  The Beverage Institute’s newsroom is here at:  http://abionline.org/newsroom.cfm?t=inthenews

By the way, if you want to to be kept in the know for the latest DUI checkpoints, check out this blog frequently, or subscribe to the Orange County DUI Checkpoints Blog, or like our Orange County DUI Checkpoints Facebook page.

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This entry was posted on Thursday, April 19th, 2012 at 11:46 am and is filed under Dui Checkpoints, DUI News, DUI politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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May 15, 2012

Identifying and Proving DUI Marijuana (“Stoned Driving”)

 I’ve discussed in the past how difficult it is (1) to recognize and identify whether a person’s driving ability is impaired by marijuana, and (2) to prove with observable and chemical evidence the existence of that impairment.  See, for example, DUI Marijuana: Does Marijuana Impair Driving? and Driving + Trace of Marijuana = DUI.

The following news story does an excellent job of highlighting some of the issues of a growing problem:

New Wrinkle in Pot Debate: Stoned Driving

Denver, CO.  March 18  – Angeline Chilton says she can’t drive unless she smokes pot. The suburban Denver woman says she’d never get behind the wheel right after smoking, but she does use medical marijuana twice a day to ease tremors caused by multiple sclerosis that previously left her homebound.

"I don’t drink and drive, and I don’t smoke and drive," she said. "But my body is completely saturated with THC."

Her case underscores a problem that no one’s sure how to solve: How do you tell if someone is too stoned to drive?

States that allow medical marijuana have grappled with determining impairment levels for years. And voters in Colorado and Washington state will decide this fall whether to legalize the drug for recreational use, bringing a new urgency to the issue.

A Denver marijuana advocate says officials are scrambling for limits in part because more drivers acknowledge using the drug.

"The explosion of medical marijuana patients has led to a lot of drivers sticking the (marijuana) card in law enforcement’s face, saying, `You can’t do anything to me, I’m legal,’" said Sean McAllister, a lawyer who defends people charged with driving under the influence of marijuana.

It’s not that simple. Driving while impaired by any drug is illegal in all states.

But it highlights the challenges law enforcement officers face using old tools to try to fix a new problem. Most convictions for drugged driving now are based on police observations, followed later by a blood test.

Authorities envision a legal threshold for pot that would be comparable to the blood-alcohol standard used to determine drunken driving.

But unlike alcohol, marijuana stays in the blood long after the high wears off a few hours after use, and there is no quick test to determine someone’s level of impairment — not that scientists haven’t been working on it.

Dr. Marilyn Huestis of the National Institute on Drug Abuse, a government research lab, says that soon there will be a saliva test to detect recent marijuana use.

But government officials say that doesn’t address the question of impairment.

"I’ll be dead — and so will lots of other people — from old age, before we know the impairment levels" for marijuana and other drugs, said White House drug czar Gil Kerlikowske.

Authorities recognize the need for a solution. Marijuana causes dizziness, slowed reaction time and drivers are more likely to drift and swerve while they’re high…

Physicians say that while many tests can show whether someone has recently used pot, it’s more difficult to pinpoint impairment at any certain time.

Urine and blood tests are better at showing whether someone used the drug in the past — which is why employers and probation officers use them. But determining current impairment is far trickier.

"There’s no sure answer to that question," said Dr. Guohua Li, a Columbia University researcher who reviewed marijuana use and motor vehicle crashes last year.

His survey linked pot use to crash risk, but pointed out wide research gaps. Scientists do not have conclusive data to link marijuana dosing to accident likelihood; whether it matters if the drug is smoked or eaten; or how pot interacts with other drugs.

The limited data has prompted a furious debate.

Proposed solutions include setting limits on the amount of the main psychoactive chemical in marijuana, THC, that drivers can have in their blood. But THC limits to determine impairment are not widely agreed upon.

Two states place the standard at 2 nanograms per milliliter of blood. Others have zero tolerance policies. And Colorado and Washington state are debating a threshold of 5 nanograms.

Such an attempt failed the Colorado Legislature last year, amid opposition from Republicans and Democrats. State officials then set up a task force to settle the question — and the panel couldn’t agree.

This year, Colorado lawmakers are debating a similar measure, but its sponsors concede they don’t know whether the "driving while high" bill will pass.

In Washington state, the ballot measure on marijuana legalization includes a 5 nanogram THC limit.

The measure’s backers say polling indicates such a driving limit could be crucial to winning public support for legalization…

The White House, which has a goal of reducing drugged driving by 10 percent in the next three years, wants states to set a blood-level standard upon which to base convictions, but has not said what that limit should be.

Administration officials insist marijuana should remain illegal, and Kerlikowske called it a "bogus argument" to say any legal level of THC in a driver is safe.

But several factors can skew THC blood tests, including age, gender, weight and frequency of marijuana use. Also, THC can remain in the system weeks after a user sobers up, leading to the anxiety shared by many in the 16 medical marijuana states: They could be at risk for a positive test at any time, whether they had recently used the drug or not.

(Thanks to Andre Campos.) 

This entry was posted on Tuesday, March 20th, 2012 at 10:03 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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Court to Cops: Stop Destroying the Blood Samples

I’ve written in the past about how cops have a disturbing tendency to destroy or "lose" critical evidence in drunk driving cases.  See, for example, Why Do Police Destroy DUI Evidence?, Why Do Police Erase DUI Videotapes? and Why Do police Always Destroy Breathalyzer Evidence?.  Destroying or losing evidence is, of course, a convenient way to make sure there is nothing to contradict the police version of the facts.

The issue of immediate destruction of breath samples — which can be easily and cheaply saved for later reanalysis by the defense — was raised a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state reversed the conviction:


Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its equivalent for the use of the defendant.  People v. Trombetta, 142 CalApp.3d 138 (1983).


How hard is it to save the defendant’s breath sample for later retesting? The Court noted that a “field crimper-indium encapsulation kit” was readily available, cheap and approved by the California Department of Health Services.

So why isn’t the evidence saved in DUI cases today?  Because the Trombetta case was appealed by the state to the United States Supreme Court….where it was reversed:


Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case.  California v. Trombetta, 467 U.S. 479 (1984).


What? Neither of these two conditions is met in a DUI case? Let’s take another look at the Supreme Court’s test…


1. The possible value of the defendant’s breath sample in helping prove innocence was not apparent before it was destroyed…..What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be of any value to the suspect?

2. The defendant was able to “obtain comparable evidence by other means”…..How? He has no access to another breath test. At best, he might be able to get a blood test at a hospital, if the police let him — but it would be so much later that it would probably not be relevant or admissible in court.


So what about blood samples?  Can cops just throw these away, too?  Well, here we go again…..In today’s news (note the plug for one of my law firm’s attorneys at the end of the article!):


Court Rules Police Cannot Destroy DUI Blood Sample

Minneapolis, MN.  March 29 – Minnesotans accused of driving under the influence of alcohol (DUI) have the right to independently test the blood sample evidence taken by police. Should law enforcement refuse to release that sample on request, the state court of appeals ruled Monday that such conduct violates due process and merits exclusion of the blood evidence at trial.

In March 2010, David Hawkinson was arrested for DUI in the city of Plymouth. He consented to have his blood drawn and tested. The Bureau of Criminal Apprehension estimated Hawkinson’s blood alcohol content (BAC) at 0.11, in excess of the legal maximum of 0.08. Three months later, Hawkinson’s attorney requested the blood, only to learn just before trial that it had been destroyed. A Hennepin County District Court judge ruled the evidence of the blood sample should be excluded because the city refused to turn over the evidence.

State prosecutors appealed, arguing it was up to Hawkinson to prove the destroyed evidence would somehow have exonerated him. The three-judge appellate panel disagreed with the state.

"The right to determine whether evidence is ‘favorable to an accused’ does not belong to the state: the state may not determine what evidence is definitely, probably, or possibly not favorable and then destroy it after the accused has specifically and in writing requested that it be preserved without violating due process," the appeals court ruled. "Here, because there was no evidence other than the blood sample that respondent had driven with an alcohol concentration exceeding .08, the destruction of the blood sample was not harmless error."

The ability to independently test blood samples is important given the problems with breathalyzer machine calibration nationwide. In Washington, DC the city’s attorney general admitted at least 300 drivers were prosecuted based on readings from faulty machines between 2008 and 2010. Another 82 drivers were falsely accused based on unreliable blood tests in Colorado Springs, Colorado’s crime lab.

In Los Angeles, California attorney Lane Scherer defended a client accused of having a BAC of 0.15. According to Lawrence Taylor, author of DUI Blog, restesting the blood sample showed the a BAC was actually 0.13. As the client maintained his innocence, Taylor’s law firm had a $1200 DNA test performed on the blood sample, which found the accused man was indeed innocent because the crime lab had mixed up the blood samples.

With the blood sample excluded, no case remains against Hawkinson…

We can only wait for the Supremes in Washington to reverse that decision as well — and give the go-ahead to cops nationwide to destroy the primary evidence of a defendant’s guilt or innocence.This entry was posted on Thursday, March 29th, 2012 at 11:04 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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May 13, 2012

Japanese Tech Company Designs Breathalyzer App for Smartphones

By guest-writer

One of the most frightening aspects of drunk driving laws is that a driver may feel fine to driver, and have no idea that the couple of drinks he or she had earlier in the evening resulted in a blood alcohol level above the legal limit.

It would take a superhuman effort to determine, for example, whether one’s blood alcohol level is .06 or .08, but that .02 difference divides legal driving (though impaired) from driving that is punishable by a hefty fine or jail time.

The police, though, have powerful devices that can measure blood alcohol levels with extreme precision. Thus, the average driver may not know their true level of impairment until it’s too late due to a technological disadvantage.

This fact, however, is changing. Rapid advances in technology have started to bridge the knowledge gap between police officers and drivers who have had a few drinks.

One exciting example of new personal breathalyzer technology was revealed at the this year’s Mobile World Congress, where the Japanese-based cell phone company NTT Docomo released a breathalyzer device for smartphones.

According to a report in the International Business Times, the company’s unique form of breathalyzer attaches to smartphones and uses sensors to detect alcohol concentration and the breath odor of smartphone users.

The technology, however, does have some limits. Rather than offer a precise measurement of a user’s blood alcohol level, the NTT Docomo device only ranks a user’s level of inebriation on a scale from one to five.

While this may offer some guidance to drivers who have had a few drinks, it is not accurate enough to give a definite answer about one’s level of inebriation.

Moreover, even if it did give an accurate reading, and that reading was below .08, if a police officer’s breath test later registered a level above .08, the arrestee’s prior cell phone reading would not be admissible as evidence in court.

So, the new technology is certainly not a magic device, nor should it guide users in their decisions to drive home.

No police officer will have sympathy for drunk drivers who claim that their smartphone app told them they were only a “2” on the inebriation scale.

So, even with the exciting cell phone technology, drivers still have to rely on their common sense. If you have been drinking, but not very sure about your level of drunkenness, it is best to be cautious and err on the side of not driving.


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May 11, 2012

Most Drunk Drivers Still Can’t Visit Canada

DUI Drivers Still Can't Visit Canada DUI Drivers Still Can't Visit Canada

Previously, those convicted of DUI were barred from visiting Canada.  Last month, the Canadian government passed a law that would allow some offenders to enter the country:

As of March 1, foreign nationals with a single misdemeanour conviction – including for driving under the influence – could be given a one-time pass to skip an onerous application process and cross the border into Canada under what’s been dubbed the Tourism Facilitation Action Plan.

While the directive applies to all foreigners coming to Canada by land, air and sea, it’s really meant to appease tourism operators in remote regions who’ve seen busloads of customers turned away at the Canada-U.S. border because one per-son didn’t realize a three-year-old conviction for drunk driving was enough to get them barred.

But there is a notable catch:

According to the directive, individuals with a single misdemeanour conviction, which can also be for crimes such as public mischief and shoplifting, will be issued a temporary permit to enter Canada without having to apply in advance and pay a $200 fee.

Foreigners qualify so long as they have just a single conviction for which they served no jail time. The waiver applies once and individuals seeking to enter Canada a second time will be warned to follow the proper procedures the next time.

In reality, the vast majority of those convicted for DUI in Pennsylvania do serve mandatory jail time and therefore cannot benefit from this new exception.  This holds true all over the country where mandatory minimum ensure that many first time offenders have to face prison time.

If you have been convicted of a DUI and are planning a hunting or camping trip to the Great White North- think again.

This is just one more example of the heavy handed punishment and stigma that comes along with a DUI conviction.


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May 10, 2012

Celebrity DUI: Amanda Bynes hits police car while DUI

An officer suspected 26-year-old actress Amanda Bynes had been drinking, and arrested her for driving under the influence. Bynes was booked at the West Hollywood Sheriff’s Station and bail was set at $5,000 (a booking photo shows the actress with a full head of purple-pink hair). She was released Friday morning without having to pay the bond and issued a citation, meaning she’ll report to court later, according to E!

on the red carpet of robots the movie on the red carpet of robots the movie (Photo credit: Wikipedia)

Amanda Bynes, the Nickelodeon actress known for her TV series “What I Like About You” and movies like “She’s the Man” and “What a Girl Wants,” was arrested early Friday morning on a misdemeanor DUI charge, according to reports. Even worse: She collided with a police car.

The Los Angeles County Sheriff’s Department tells E! News that a police car was preparing to turn right in West Hollywood at approximately 3 a.m. when the actress, driving a black BMW, allegedly tried to pass and collided with the right rear panel of the cruiser, causing minor paint damage to both vehicles.

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This entry was posted on Sunday, April 15th, 2012 at 11:21 pm and is filed under Celebrity DUI, DUI News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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May 9, 2012

Racecar Driver Al Unser Jr. Convicted of Second DUI in Five Years

By guest-writer

Racecar legend Al Unser Jr., who is the youngest member of the iconic Unser racing family, was convicted for his second DUI in less than five years, according to a report from the Los Angeles Times.

Unser, who has won the Indianapolis 500 twice, pled guilty this week to Albuquerque prosecutors’ charges that he was drag racing while intoxicated during an incident last September.

During that incident, New Mexico state police saw Unser, who was driving a 2011 Chevrolet Suburban, racing another car on a state highway at roughly 3 a.m. The two cars were traveling at speeds of more than 100 mph in a 60 mph zone, according to the police report.

While the other car evaded police, officers eventually caught Unser, who had a blood alcohol level that was twice the legal limit. Sources say that, when police arrested him, Unser lamented that they had “caught the slower driver.”

Sources suggest that Unser pled guilty to a few lesser counts in order to avoid being tried for charges of aggravated DUI and reckless driving.

As part of his plea agreement, Unser was sentenced to three months in jail, but a friendly judge reduced this sentence to a year of supervised probation. As a result, Unser will remain a free man, but he will have to report frequently to his probation officer.

The 49-year-old racecar driver was lucky to avoid jail time after being convicted for his second DUI, especially given the extreme nature of his arrest. Speeding down a road at 100 mph while drunk is often a ticket to extended jail time.

In 2007, Unser was involved in a crash on another New Mexico freeway after which police discovered that his blood alcohol level was three times the legal limit.

After this accident, Unser lost his driver’s license for 90 days, paid a $1,000 fine, and attended a few classes that discussed the perils of drunk driving.

Not surprisingly, some observers are upset with what they perceive as preferential treatment for Unser, whose family is from Albuquerque and considered local racecar royalty.

According to Anna Duerr, a spokeswoman for Mothers Against Drunk Driving, “[c]elebrities and sports figures need to be treated just like any other driver” because drunk drivers “kill 10,000 people each year and injure 350,000.”

In response, the DUI attorney for Unser says that his client has apologized for his poor judgment and is “taking steps to make sure it doesn’t happen again.” Of course, an attorney for Unser made a similar statement after the incident in 2007.


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May 7, 2012

Pennsylvania DUI Law Review: Repeat Offenses

Repeat offenders must serve mandatory jail time in Pennsylvania. Repeat offenders must serve mandatory jail time in Pennsylvania.

Under Pennsylvania’s DUI code, repeat offenders are subject to extremely harsh punishments.  Some of the penalties for a repeat conviction may include:

Mandatory Jail time up to 5 yearsFines up to $10,000License suspension up to 18 months (served after the prison sentence)Mandatory ignition interlock

As you can see, these are crippling penalties which can change your entire life. Prosecutors face additional political pressure by MADD and other DUI lobbies to push for the heaviest penalties for repeat DUI offenders so you won’t get off easy.

In Pennsylvania, the license suspension is served consecutively meaning you could possibly serve a 5 year prison sentence then an 18 month license suspension in some extreme consequences. Then in that scenario, you would have to use an interlock device for a year.  In total you could be serving a de facto loss of license of 7.5 years after the conviction.  Additionally, the conviction and your time in prison will show up on your criminal history forever!

This is why it is important for any repeat offender to seek legal help immediately.  Find the best DUI Lawyer you can and protect your rights.


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Orange County DUI Checkpoint Locations: Brea March 31, 2012

No, it’s not an April Fool’s joke.

The Anaheim Police Department announced that it will conduct a checkpoint Saturday night into the early morning April 1st, 2012, to screen motorists who may be driving under the influence or driving without a license.

The checkpoint is on Ball Road from 8 p.m. Saturday until 3 a.m. Sunday. Further details about the location were not disclosed.  If you need the assistance of our Anaheim DUI Lawyers

Anaheim Police Department Anaheim Police Department (Photo credit: Wikipedia)

, call us at 877-568-2977.

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This entry was posted on Sunday, April 1st, 2012 at 1:51 am and is filed under Dui Checkpoints, DUI News, DUI politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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May 6, 2012

Orange County DUI Checkpoints: Santa Ana

Watch out if you’re driving in Santa Ana this Friday.  Our Orange County DUI Lawyers

The famous "black and white" LAPD po... The famous "black and white" LAPD police cruiser (Photo credit: Wikipedia)

have been tipped off that the Santa Ana Police Department will conduct a DUI/drivers License checkpoint on Friday, April 27. It will run from 7:30 p.m. to 1:30 a.m. in the area of 2300 W. 5th Street.

Traffic volume and weather permitting, all vehicles may be checked ,and drivers who are under the influence of alcohol and/or drugs will be arrested.  Best to avoid it entirely.  But if you do need a DUI specialist, call me at (877) 568-2977

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This entry was posted on Thursday, April 26th, 2012 at 12:26 pm and is filed under Dui Checkpoints, DUI News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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May 4, 2012

State Supreme Court: No Forced Blood Draws

I’ve written in the past about the increasingly common practice of cops to pin DUI suspects down and forcefully withdraw blood from them.  In some cases the needle is wielded by medical staff — and in others by the cops themselves.  See Taking Blood by Force, Forced Blood Draws by Cops in Back Seat, Forced Blood Draws by Cops Spreading and Forced Blood Draws by Cops: Constitutional?
How far will the courts permit these kinds of police state tactics?  One state supreme court has just drawn the line:

Illinois Court Blocks Forced Draw From Motorist

Chicago, IL.  April 16 – An increasing number of states allow police to use any level of force needed to take blood from a motorist accused of driving under the influence of alcohol (DUI). In Ohio and Texas this procedure is explicitly authorized by statute. In Washington, the state Supreme Court decided to sanction the practice on its own authority. Last Tuesday, the Illinois Court of Appeals was unwilling to take that extreme step.
A three-judge panel upheld a trial court’s determination to suppress the evidence created when police held Jacqueline Farris down and forcibly drew her blood. On May 12, 2009 at around 10:30pm, Officer Kevin Orms arrived at the scene of an accident in the village of Bradley and found Farris behind the wheel of one of the vehicles involved. She smelled of alcohol. Orms had her taken to the hospital where he asked for consent to draw her blood. Farris refused. Officer Orms then ordered a nurse to take the blood by force. Three personnel were required to hold Farris down because she resisted.
Lab results showed the blood alcohol content (BAC) of the Farris sample was estimated at 0.285, but a lower court threw out the evidence as inadmissible. Under state law, forcible blood extraction is only authorized when a driver causes death or the personal injury of another driver, passenger or pedestrian.
Prosecutors argued that the officer had probable cause to suspect Farris of being drunk, and there was not time to obtain a warrant before the alcohol would dissipate. In agreeing with the lower court, the appellate majority cited a 2005 state Supreme Court precedent that allowed testing without consent in cases of death or injury but did not touch on cases where no injuries occurred.
"In Jones our supreme court was quite clear that there is no practical need for physical force in obtaining bodily fluid samples since the Vehicle Code eliminates any advantage a DUI arrestee might hope to gain from refusing chemical testing," Judge William E. Holdridge wrote for the majority. "As the Jones court noted, the defendant’s refusal to comply with the request for a sample, in and of itself, is sufficient to justify a statutory summary suspension of the defendant’s driver’s license, the purpose of which is to protect the public from intoxicated motorists."  People v. Farris
.

This court prohibited forced blood draws in a medical setting.  Other courts, however, have actually approved the forceful extraction of blood by the cop himself — even when done in the back seat of a patrol car.  See, for example, Would You Want a Cop Taking Blood From You?
This entry was posted on Monday, April 16th, 2012 at 4:56 pm and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
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May 3, 2012

Newport Beach DUI Checkpoint location announced

Our Newport Beach DUI Lawyers wanted to let you know that the Traffic Division of the Newport Beach Police Department will be conducting a sobriety/driver’s license checkpoint on Friday, April 27, 2012.  The location of the checkpoint will be northbound Jamboree Rd. at San Joaquin Hills Dr.  The approximate hours of operation will be from 8:00 p.m. until 3:00 am.

The checkpoint location was selected based upon its proximity to bars and restaurants.  The film festival, plus good weather, might make this a productive one for them, even though, as I’ve mentioned in the past, DUI checkpoints in Orange County and elsewhere don’t significantly catch many people DUI, or lead to an increase in Orange County DUI arrests.

Newport Beach Seal at the Pier Newport Beach DUI Checkpoint

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This entry was posted on Thursday, April 26th, 2012 at 12:50 pm and is filed under Dui Checkpoints, DUI News, DUI politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.


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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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