The link below is MY client getting tazed!
this is a great article discussing the use of blood alcohol levels derived from urine. Here is an excerpt from the article: For many years it has been customary to derive blood alcohol concentrations from the analysis of urine, and despite the fact that the accuracy of such derivations has often been questioned British courts have been content to accept them as evidence in prosecutions for drunken driving, presumably on the grounds that such evidence was merely confirmatory and not viral.
If you need a Salt Lake City DUI attorney, please call David Rosenbloom at 1-800-384-8946
Jim Crow was a term, or is a term used to refer to segregationist rules and laws, instituted in the South after the Civil War, intended to keep things as they were and institutionalize rampant racism. Now, with racism unfathomable as well as unfashionable, Jim Crow has become, to borrow the phrase, a term that could ostensibly apply to DUI enforcement, with drinkers being the Jim and the enforcement of DUI’s being the Crow. Everyone, almost, agreed that DRUNK driving is dangerous, but there are books to be written on how bizarre this country’s policy on DUI enforcement has become after MADD’s influence.
No one can call MADD, or Mothers Against Drunk Driving, anything but well intentioned, and help but feel heartfelt sorrow about their losses, but the fact is that there is no other law enforcement procedure that has as far reaching an influence on regular run of the mill citizens, than DUI enforcement. This might be fine if we decided together that affecting the some 17,000 lives taken as a result of drunk driving, is a goal that deserves the billions invested in enforcement and lost by defendants who were trying to obey a confused message advertised by state and national governments that have no clue as to what makes a real DUI, or rather a dangerous DUI.
Simply put, dangerous DUI’s are any DUI where the driver is actually impaired. Notice the word IMPAIRED: it doesn’t mean unable to complete the roadside field “tests” but rather impaired like you or I would view the word; you see the person, speak with them, and you can tell they are shot, toasted, drunk, unsafe – whatever. The difference is that while states advertise “DONT DRIVE DRUNK” they are sending a totally mixed message. The real danger isn’t the driver that has two drinks at dinner, and blows a .095; the danger is rather the driver who insists on driving because they are fine. But because DUI enforcement has taken a bird shot approach, with police stopping “suspicious” cars during late night, they are getting a majority, read MAJORITY of people who are over .080 and DUI under the law, but were trying to obey the law. That’s due to a variety of reasons discussed elsewhere in this blog; but importantly, these people set out with the number .080 in their minds as a number that means drunk. Due to the mass marketing of the phrase “drunk driving” and the number .080 indicating per se, or automatic DUI; people have come to associate .080 with drunkenness and because they don’t feel drunk and are NOT impaired, they assume that they are not over .080!
What the state and national governments should o is advertise heavily that .080 can be reached with even one (1) drink! That would go a long way to halting this steady progression of defendant’s who intended to obey the law but were confused by the state’s message. Instead we have, as proof mind you, 70% of the drunk driving DUI defendants NEVER repeating their behavior, which either speaks to the ingenuousness of the drivers to begin with, or the fear of punishment after having experienced the legal system, or some combination of both.
I would argue that this is an example of the former, of people being confused, rather than people trying to beat the system; if people knew that .080 was one drink away, my argument is that the large majority of them would not drink, or would test themselves. My argument is consistent with the general public being aware that driving drunk is illegal, but moreover a product of the confusion caused by the mixed messages of driving drunk alongside the .080 legal limit, with people being caused to believe that .080 is drunk, when nothing could be further from the truth.
WHAT DO YOU THINK, I’M INTERESTED IN HEARING FROM YOU REGARDING ANY STORIES YOU MAY HAVE OF YOURSELF OR FAMILY BEING TREATED HARSHLY BY THE SYSTEM WHEN THE INTENTION WAS TO STAY WITHIN THE LAW.
Yes, and I agree there are certain substances that are just too dangerous to be available, esp to kids. However, at the same time, I generally believe that if kids are old enough to die for their country, and other countries have seen fit to decriminalize or legalize mind altering substances, that people should be allowed to choose for themselves, absent some underlying evil.
Take a first time low level drug offender. Gets caught at a roadblock for an accident, police come up and arrest him for smelling like marijuana. Anywhere else besides Utah, he pays a fine, and he is done; in fact, more likely, he is given a Plea in Abeyance, so that he can get rid of the offense if he doesn’t have any others in the next year. In Utah, however, this kid is going to get supervised probation during which he will spend over $2,000.00 for weekly or monthly or random drug testing. He then, like a surprising number of people may tests “dilute” which means he had too much water (perhaps after working out), “messy” which means that although not “dirty” his urine had perhaps a muscle supplement in it that flagged the urine, or “missed” a test, which means that either he blew showing up for a random UA when his color or name came up randomly, or that the message that announces the color each day was busy or even not properly changed from the previous day in time; either way, he now has a “bad” UA.
Now the court calls him in, does not require the testing agency to address the issue of false positives (about 3%), does not inquire as to the facts surrounding the dirty sample, does not require the agency to further test the UA by a process called gas chromatography (GC) which is routinely done elsewhere because the base UA can pick up all sorts of things as “drugs” that are not, (such as Sudafed as Meth, poppy seeds as heroin, hand cleanser as alcohol or ETOH, and prescription Ritalin as Meth). The court does not ask the person what happened, rather they ask the kid to “deny” or “admit,” largely because they have, really have “heard it all before” and since the kid was told the rules at the beginning, and since he had all the opportunity to ask any questions he wanted; the kid is wholly responsible for the bad UA.
I once watched as a terrified 17 year old girl, who had tested positive for “meth,” sobbed onto her mother’s shoulder as the judge excoriated her for the test, which as it turned out, was a false positive caused by the presence of an asthma medication she was legally prescribed. Had the lawyer not thought of further testing the sample, and having her blood taken immediately afterwards for testing, this girl would have undoubtedly gone to jail.
You are in a system where the truth is already known, the facts don’t matter most of the time, because the truth is already known, and speaking out of turn can land you in jail. Don’t get me wrong, these are ALL well intentioned, well-meaning people, but the ease with which certain people are believed, and defendant’s are not, has always amazed me. The amount of money the state, this state Utah, spends on randomly enforcing laws regarding personal consumption of illegal drugs that are decriminalized elsewhere is astounding. Again, let me stress the following point – I don’t have any quarrel with people who believe certain drugs are harmful, especially to our youth, and who want to stop illegal drug use. But our system of punishment simply does not work and is inherently and unnecessarily expensive. The argument that it is the only thing we have is a cop out in my opinion. If we want to stop drug use, education has been shown to be the most effective method of preventing youth drug experimentation; followed by universally available treatment. Spending millions on people who do not want to be helped, in drug courts and in sting operations, while millions of people who want help can not find it, because it is expensive and rarely available is a contradiction of the highest order.
Take the amount of money and resources we spend on marijuana, or even legal prescription drugs for example – billions when you add in prison. I was in court yesterday and watched three people go to PRISON, not jail, for using Tramadol while in a drug court program. Now I have no problem per se, with people being punished for agreeing to a program and then screwing it up; but to send someone to prison because they had a legal RX for a non-narcotic drug, because they didn’t report it on their weekly form, seems to me to be an expensive solution to a non-problem. Why do we care if someone uses drugs? If they don’t steal, since when is the system so invested in an individual that it spends hundreds of thousands of dollars in a certain person because they have been caught with an illegal substance (say MJ, or heroin), signed up for a program, and then screwed up getting straight? IN other words, if a person who wants to get clean, can not find a program that will taken them to help them; why is a person who doesn’t (apparently) want help, forced by virtue of the less “worse” or painful choice, into a program, that when failed, leads to the state spending more than the hypothetical treatment amount (100k) to punish the person with prison? It makes no financial, or even moral, sense.
Why take a kid, who otherwise is headed for success, a college graduation, a job, a family, and derail this person by giving him a criminal record that will ostensibly prevent him from ever applying for a financial brokers position, a driving job, a health care position, a legal career, or one of any other of a thousand employment opportunities that would have been available had he not been caught?
I use the term “not been caught” for a very specific reason; very reliable studies show that the vast, and I mean vast, majority of U.S. citizens have tried marijuana, and that a sizable percentage of the public uses or has used marijuana at least recreationally. This includes doctors, lawyers, financial leaders, and even yes, our past two presidents. But for the random chance of events, these successful people were not “discovered” and so their lives remained unchanged. But for the discretion of a policeman, back in the day when police officers were permitted discretion, hundreds of thousands of people would not be in the position they find themselves in today.
One person’s trip through the legal system and resulting hell that it can cause, with it’s well-meaning “let’s get you the help you need,” even though the person can not afford it. Let’s “get you a job” that you will hate because full employment is a condition of probation, even though the person has a start up business that they believe will succeed in the long run; “let’s put you into anger management” even though the man and wife admit that the event for which the neighbor called the police was a perfectly friendly argument and that they are just “loud.” The well-intentioned judges, and third party treatment providers (who now very much wag the tail), want to “fix” you even when you believe there is nothing that needs fixing. I ask simply this: when did the legal system become a sociological experiment in “re-tuning” people, simply because they had a singular incident with a policeman, an agent of the State?
I once had a client who used marijuana to “keep the voices” at bay, he had experienced a psychotic episode as a teenager, and found that pot (which usually exacerbates schizophrenia it should be mentioned) not only calmed him, but halted the auditory hallucinations he was beginning to experience. He didn’t drive, but had a driver’s license which was a necessity for his job (it isn’t clear why as he did not need to drive for his job) and he had a job that permitted him to live as he chose. An officer entered his house without knocking, after transposing the house numbers, and then his world fell apart. Drug court was offered, the hallucinations returned, medications were too expensive, the state insurance wouldn’t pay for it and finally asked the court to just punish him so he could go back to smoking pot. That comment cost him sixty days in jail, and then a year of probation and drug testing. He asked the court to send him away for the full term if necessary, because he needed to smoke his medication and he understood it was illegal and that the judge needed to punish him; all he wanted was to serve out his term. The judge couldn’t condone his “illegal behavior” even though the guy had expressed the fear of killing himself if the voices were uncontrolled).
The judge refused to just put him in jail and let him serve the term, without placing him on probation. (To be clear, when a judge sentences less than the max for an offense, the remainder is held over the person’s head while probation is completed; there is nothing improper at all about asking a judge for the max sentence, and no probation). He finally just left the state and moved to California, where he could legally smoke medical marijuana and live his life. He still likely has an active warrant for his arrest in Utah, his driver’s license has been suspended as a result in California, and he can’t return to see his family for fear of being arrested.
It would be bad enough if these stories were isolated, but unfortunately, they are not, rather these kinds of events are legion and a product of a system that has not been accountable largely because justice courts have been court of NON-record since their inception (set to change in July of 2011). Sure, there are judges who might be deemed “tough” or “rogue,” but the majority of these stories arise from the following perfect storm of circumstances: a well-intentioned judge; a mindless young prosecutor for whom this job is their first; an unrecorded court proceeding (studies demonstrate that an audio record aptly restrains judges from over-reaching); and an unrepresented (Pro Se) defendant. Defendant’s enter into agreements that are far reaching, unintelligible due to legal jargon, and have hidden complexities. Want an example? Courts are supposed to warn defendants of all of the possible consequences of entering into any plea agreement and then failing probation; jail, increased fine, contempt, etc.; however they are under NO obligation and most don’t have the requisite knowledge in any case, to warn about possible/likely civil consequences. Thus, a person who asks EVERY possible question about probation, would be unlikely to be informed of the fact that a plea to a “possession of a controlled substance” charge would inevitably lead to a six-month suspension of their drivers license! By the time the defendant figures out what has happened and tries to lawyer up and retract their plea – it is far too late; the wheels of justice have turned and run over the defendant in the process. Now with a ticket for “driving on a suspended license” they face a violation of probation for that charge, another six month suspension of their driving license, and a snowball effect from hell – game over!
The system I fear, has grown too big for itself.
This is one of many stories about how a small scientific misfire can unintentionally have HUGE end results: Vermont DUI Intoxilyzer Controllers inadvertently failed to input a tolerance or range for monthly calibration testing, as reported by the Burlington Free Press:
MONTPELIER — A mistake in the software setup on a breath analysis machine and whistleblowers’ complaints about unethical lab work threaten dozens of drunken-driving prosecutions in Vermont.
At issue are breath tests performed by a DataMaster DMT machine at a Vermont State Police barracks that authorities say wasn’t set up properly. Amid a broadening inquiry by two defense attorneys, dozens of criminal convictions could be reopened and several civil license suspensions are being overturned.
Hundreds of other cases since 2008 could be in jeopardy because of problems with the state Department of Health’s maintenance of the machines that are used at police stations and barracks to test drivers arrested for suspected drunken driving.
The state Health Department, which is being stripped of the breath-testing program, says the machines didn’t give any erroneous readings. At issue, officials say, is human error that resulted in one machine at a Vermont State Police barracks operating for almost a year without a self-check function that assures it’s working properly.
“People can go to jail and lose their driver’s licenses based on this science,” said George Ostler, a defense attorney in Norwich who has clients who were prosecuted using test results from the machine. “When they don’t maintain the machines like this, it’s disturbing.”
The machines, which cost about $6,150 each, use infrared light to detect the presence of alcohol. Each machine is supposed to conduct a self-check to measure the alcohol content of a control sample before it analyzes a subject’s breath.
The issue with the one at the state police barracks in Royalton is that two state Department of Health chemists failed to activate the self-check function, called a tolerance detector, before it went into use in May 2010.
Now the results of all the tests it conducted are suspect, and prosecutors are sending out notices to defense attorneys and drivers who represented themselves in civil or criminal proceedings that the breath-test data in their cases might have been compromised.
“It is frustrating to learn that through human oversight, these instruments were not set up properly and that potentially we took advantage of evidence that should not have been available to us,” said Windsor County State’s Attorney Robert Sand, whose office is seeking to vacate 33 driver’s license suspensions.
Prosecutors in Windsor and Orange counties say they have no plans to seek the dismissal of convictions obtained using testing from that DataMaster because there was enough other evidence of impairment to convict.
Despite notices to affected parties, no one has indicated a desire to reopen a case, Sand and Orange County State’s Attorney Will Porter said.
In Orange County, up to 20 people were convicted in drunken-driving cases based on the machine’s results and 15 to 20 cases are pending. Porter said those prosecutions will proceed, relying on other evidence.
“We are trying to get to the bottom of it and determine the extent of the problem and how it affects currently pending cases,” he said.
In Orleans County, the failure of a DataMaster in a routine performance check in October has led to dismissal of at least four driver’s license suspensions.
Stuart Schurr, traffic resource safety officer for the Department of State’s Attorneys, won’t say how many cases statewide might end up being affected. David Sleigh, a defense attorney involved in some of the DUI cases, says hundreds, dating to 2008.
“I will say what I have to, not in the court of public opinion, but in a court of law,” Schurr said. “You may have to sit back and wait for this to be fully litigated before both sides come out.”
State officials acknowledge that human error is to blame. They say the machine never gave erroneous readings.
“The thing about the DataMaster instrument, in terms of sophistication, is (that) it virtually always, if it gives you a result, it gives you an accurate result,” said Dr. Harry Chen, the state health commissioner. “It will not … give you an inaccurate result. So the results are still valid and accurate, despite the fact that this switch was turned off.”
The explanation doesn’t wash for Sleigh, who helped detect the problem through his work on behalf of five drunken-driving suspects.
Sleigh and fellow defense attorney Frank Twarog obtained copies of complaint letters written last year by two Department of Health whistleblowers who said sloppy and unethical work by a lab colleague had been reported but unaddressed.
First reported on by the Burlington weekly Seven Days, the letters written by chemists Amanda Bolduc and Darcy Richardson were obtained by The Associated Press through a Public Records Act request.
The Health Department withheld from The AP 16 emails dealing with the DataMaster issue. Assistant Attorney General Margaret Vincent asserted attorney-client privilege or “attorney work product” as the reason.
The whistleblowers’ complaints allege that laboratory technician Steven Harnois tampered with DataMaster machines to get them to pass routine performance checks and kept records so badly that it compromised the chemists’ ability to testify in court about readings.
“I have concerns in his level of integrity and ethics,” Bolduc said. “These concerns have been brought to the attention of the program chief on numerous occasions, and still the problem exists.”
Whenever she raised concerns, her boss retaliated against her for it, she said.
Harnois, who still works at the lab, didn’t respond to an email message seeking comment for this article. Chen said the Health Department’s internal investigation found no tampering on DataMasters and no evidence of wrongdoing by Harnois.
Last month, the state decided to move the breath testing function from the Health Department’s lab to the state Department of Public Safety’s lab, a change that has been discussed for years but never made until after the current problems surfaced.
Written by John Curran, The Associated Press
Cops are underpaid and overworked, and while it is true that these are the guys that show up every time you dial 911, the relatively recent concentration of DUI enforcement has resulted in COPS bending the rules to bring in scores of drivers just barely over the limit but not at all impaired. In short the law says that anything over a blood alcohol level of .080 mg/dl is a “per se” DUI; however the other arm of this law is that anyone who is “impaired” by ANY amount of drugs or alcohol can be cited as well. This means if you are at a BAC of .010 or trace alcohol, that you can be cited for DUI if you don’t pass the stupid, unproven, “balance” tests that the police administer on the roadside. Let’s be very clear here before I go on; if you are pulled over for say speeding, and the cop says “have you had any drugs or alcohol today?” And your answer is, “well, just what the doctor prescribed, and I only had a half of the 7.5 lortab for my tooth extraction,” and you are unable to stand on one foot for thirty (30) seconds while looking at your uplifted foot, all with traffic zooming by, or are unable to walk 18 heel to toe steps without missing a single heel to toe touch by more than half an inch, or stepping off line once; it is more likely than not that you will be receiving a DUI. WAIT! WHAT!?
Understanding DUI law is not necessarily easy, but if you take a few minutes, it is not unreasonably difficult, although by the time we are finished you will be blown away. The law wants to cover everything right? So of course, we want to protect the public from obviously impaired drivers strung out on say oxycontin, or sleeping pills – no one disagrees with that. But a little is a lot in DUI law. The law states that anyone who has even a trace amount of a perfectly legal, prescribed, taken as directed drug, is guilty of 41-6a-517 DUI, called a “metabolite DUI” and impairment is not necessary for this charge! WHAT?
That’s right. In Utah, if you take your medication as directed, and have your blood tested, lets say as a result of an accident that isn’t your fault, if that blood comes back as positive for even a metabolite of any drug, that can be used against you as a DUI. Now, to be sure, the law makes a provision for what is called a “rebuttable presumption” or affirmative defense to the charge by showing a prescription for the drug, or that the drug was ingested by mistake, but that means thousands of dollars in legal fees, and frankly, very, very attorneys will be able to explain to you what a rebuttable presumption is. REMEMBER! Your ability to drive or your impairment is based on your ability to perform roadside balance tests that have NEVER been proven to distinguish between impaired and unimpaired drivers (because they are total bullsh*t); no one ever tested you on your ability to balance on one leg before you took your driving test, and many people have poor balance, especially when a police officer has them on the side of the road with oncoming traffic! Don’t get me wrong, I don’t have any love for drivers who are loopy, but judging impairment AFTER finding out about normal drug use from the driver is foul play. There are people who are impaired from prescription drugs to be sure; but the vast majority of cases I see are either mistakes, new prescriptions or dosages taken as directed, or sheer sleepiness, which everyone is guilty of now a days. Worse still, since a prosecutor defines which statute a case is filed under, most of the time, the driver doesn’t have the defense of a legal prescription taken as directed! Rather, under 41-6a-502 or the normal run of the mill DUI statute, the state is going down the road of impairment; and since impairment is judged not on how much or little you have in your system, but how you performed on roadside sobriety tests – the prosecution has a leg up to begin with. This is PATENTLY UNFAIR. In cases where there is no discernible and I mean visible impairment, it is complete BULL to prosecute ANYONE who is taking their medication as directed
and isn’t visibly impaired. don’t forget, these people, even mormons, need Ignition Interlock Devices installed in any car they own or operate, as a result of the DMV civil rules; so even if they don’t drink, if they are convicted or plead guilty, they need an interlock!
In practice the way most cases go is something like this; the state charges, the driver relents and pleads to an impaired driving. Now they are alcohol restricted as a result of the plea, but they don’t necessarily know it. They are then stopped say a year later, and they blow say .010 from a single beer they had earlier with dinner, five hours ago. And now they are charged with an alcohol restricted driver violation which is the same class as a DUI, a class B, and carries the same penalties as a DUI, BUT now their license is suspended for one (1) year and they have a THREE (3) year interlock requirement, which they were trying to avoid before by pleading to the impired driving! Talk about your catch-22′s!
Science is interested in accuracy. Generally one may say that politics and law are interested in fairness. However, where DUI Law is concerned, scientific accuracy has been bulldozed into the ground by well intentioned anti-alcohol zealots who have politicians ears. A ready example is a jury instruction that orders jurors to “assume that the intoxilyzer readying is accurate.” Even if you are not a lawyer, you know enough law from watching television that the province of the jury is protected from politics, or should be. Jurors in our system of justice occupy a hallowed role – protecting individuals from a much more powerful government, by holding it’s agents to a high standard of proof, that of reasonable doubt. Th government has historically been held to this standard by forcing them to prove each element and each fact to this unforgiving level of proof. We don’t instruct a jury to assume anything about the facts of a case specifically because it lessens the burden of proof for the state and gives them an unfair advantage. It doesn’t matter if the crime is child abuse, or DUI, the idea that the government is given an advantage of “accuracy” because it certifies that they have checked the machine monthly is complete bull. Each DUI case under say .085 BAC is about that very accuracy, and the very manufacturer of the machine states that the machine is only accurate to + or – .005 or 5%, whichever is greater. The idea that the legislature can, or for that matter would even attempt, to rewrite scientific accuracy by changing the rules is as un-American as it gets.
So, can a person who legally takes a substance be arrested for DUI in Utah? The answer is yes, probably. Under the law if a person is “unable to safely drive,” and is under the influence of any drug, legal or illegal, an officer can and will issue a DUI. Two central questions are : 1) What is unable to safely drive;, and 2) What is under the influence. The probably part comes later.
The answer to the first question is easy and mind-boggling – “unable to safely drive” means that a person “failed” the so called Standardized Field Sobriety Tests, the three tests that officers perform on the roadside – HGN – Horizontal Gaze Nystagmus, WAT – Walk and Turn, and OLS – One Legged Stand. The mind boggling part of this is that these “tests” have NEVER been demonstrated to distinguish between people who have been drinking and people who have not – that is; there have never been ANY tests on sober people to see if they could pass the tests. Simply put, these test are completely meaningless scientifically – but law enforcement continues to use them to arrest people.If you get even two clues on the WAT and 2 on the OLS, you are considered “impaired.” That is, a score of 95% on the WAT is a fail!
“Under the influence” has a special meaning in Utah. It has the normal meaning that every satte uses, that is; affected by physically – but it also has a special meaning; first it means that if you have ANY alcohol in you and fail the SFST’s above (HGN, WAT, OLS) you are considered “under the influence,” but it also means that if you fail the SFST’s and you have ANY measurable amount of ANY metabolite of ANY drug in your blood, you are also “under the influence.” This latter meaning is a real kicker – someone who smokes pot three weeks before they are stopped, and has ANY INACTIVE metabolite in their blood (pot lasts for about two to three weeks in one’s blood), even a threshold amount of say 1 ng/ml, even though it is completely scientifically accepted that the level could not possibly have any effect on the person – is DUI!
The probably part has to do with how much you tell the officer. And this is where most people mess up. You are legally entitled to shut your mouth, especially if they start trying to work you over for information. Just shut it! If you tell the officer something they would not have known but for your answer – you have just provided the officer with probable cause. That is what they will use to arrest you with. DONT: overthink, or even think at all, just shut it! Nothing will get better if you talk. They wont not arrest you, they wont no give you a ticket, and they won’t most of all, go easy on you. All they are trying to do is hurry up and see if you are holding so they dont waste their time.
If the officer says something like “I won’t arrest you and you won’t go to jail if you tell me what you used today…” or anything of that nature – cops aren’t allowed to make such deals, they have to arrest you anyway, and whether jail is a certainty depends on how busy the officer is, how crowded the jail is, and how far you are away from jail. Don’t ever let an officer coerce you into giving evidence against yourself, especially if they are threatening to search you car! That search would likely be suppressed unless you are already arrested – remember they need probable cause to search, and unless your car smells like a drug, they don’t have that! ASk for your ticket and to leave. And keep asking. They are legally entitled to the time it takes to write the ticket for that infraction and nothing else. No questions prolonging the stop, no questions about where you are coming from, and no questions about where you are headed. Period. Politely decline.