Suspected Drunk Drivers Strapped to Torture Tables In Guantanamo-Style Blood Draw

August 11th, 2013

Sunday, July 12 — If you’ve been thinking lately that America doesn’t resemble the country your parents grew up in, you’re right – it doesn’t, because it isn’t. In fact, America has changed dramatically since the 1950s and 1960s, and not for the better in terms of your rights under the “law” and the Constitution.

Nowhere is this more evident than in cases involving drivers suspected of driving under the influence of alcohol or drugs. Granted, driving under the influence is most certainly dangerous and cops ought to be given the tools to protect us against those who abuse their driving privilege in this manner. But the issue has become so hyper-politicized in recent years that now police are using extra-constitutional techniques in order to determine whether someone has been driving under the influence, all with the blessing of the U.S. Supreme Court.

This blatant Fourth Amendment violation is epitomized in a shocking video recently released online showing police in Georgia strapping down American citizens who have only been accused of driving drunk before using a needle to forcibly draw blood from them.

In this video, which was broadcast on Atlanta’s Fox affiliate, one suspect can be heard saying, “What country is this?”

”We all are American citizens and you guys have me strapped to a table like I’m in Guantanamo f***ing Bay,” complains another suspect, regarding the forced blood draw.
The policy of police obtaining a warrant to draw blood from those merely suspected of being drunk at a DUI checkpoint or a routine traffic stop has been in place for years across many states, but to actually see it in action is disturbing.

The clip shows individuals being strapped down on a padded table at the Gwinnett County jail. Even those who show no resistance whatsoever are forcibly restrained and have their heads pressed down by an officer using his elbow.

The man who is screaming, “What country is this?” has been identified as Mike Choroski. He is seen protesting as officers forcibly hold him down in order to obtain the sample without his prior consent. reports that he is still awaiting trial; Choroski claims he is not guilty and that there was no accident involving his vehicle.

”I’m a taxpaying American who refused something….I refused to do this….what happened to me in that room was unnecessary and nobody should have to do that,” Choroski said.

David Boyle, an attorney, said during an interview with Fox 5 Atlanta that such forced blood draws actually constitutes an “unreasonable search,” as in Fourth Amendment.

”Holding down and forcing somebody to submit to this is really intrusive in terms of that level of invasive procedure into someone’s body is ridiculous for investigating a misdemeanor,” Boyle said in the interview.

The report says cops do first obtain a search warrant, but like Boyle says, they nonetheless force citizens to comply with what is very much an invasive procedure. And, as points out, the threshold for obtaining such a warrant is low:

Despite the fact that citizens can lose their driver’s license for a year if they refuse a standard breathalyzer test, cops can then get a warrant to forcibly draw blood, ‘for every DUI stop, even if there’s no accident or injury.’”
Since January, police in Gwinnett County, Ga. have conducted in excess of 100 forced blood draws – a practice that, until now, was not very widely known (unless you happened to be one of the unfortunate souls who were arrested for DUI in Georgia).

”I’m stunned, I did not know that this was legal, I did not know they could take your blood without your consent,” a Fox 5 anchor said in response to the clip, further stating that the process indeed appeared to be a Fourth Amendment violation.

According to reports, Georgia, by far, is not the only state that enforces so-called “no refusal” DUI checkpoints, where cops can forcibly draw blood. That’s because in 2005 the nation’s highest court ruled, astonishingly, that it is not unconstitutional for states to forcibly hold down citizens and obtain blood samples.

In January 2013, another Supreme Court ruling affirmed that a warrant must first be obtained in order to take the blood sample, but that in an “emergency” police could bypass the warrant requirement.

The “emergency” authorizing the bypass of a search warrant is that the blood-alcohol level may become lower if a warrant has to be obtained — which is possible in all cases (as it is true that the level may actually increase). Warrants, incidentally, are usually obtained very quickly — essentially automatically — by telephone.

The Consequences of a DUI Conviction

August 11th, 2013

In most states, a first-offense misdemeanor DUI can have more serious repercussions than many felonies — and in the long run, more….far more.
The following comments posted on Lawrence Taylor’s great blog by a reader are illustrative:

A DUI is like a cancer, as is mentioned in Mr. Taylor’s web site. Like he wrote, it’s expensive to fight a DUI, but the alternative is scary. I’ll add that it is like a cancer for another reason — the penalties are so far reaching and numerous that, still, 3 years after my DUI conviction (I pleaded guilty, not knowing what I was in for) I am still finding ever more ways how that DUI will and is affecting my life. Even someone with advanced spreadsheet skills would have a tough time creating a spreadsheet that would completely illustrate the penalties of a DUI from the MVD, the court, your insurance company, your professional licensing organization (mine was nursing), your employer (if you’re lucky enough to keep your job), local and state and federal government agencies and benefits, schools, the ignition interlock company, and the list so far, in my case, continues to grow. Like a cancer…
Listen GOOD: a DUI will ruin your life, slowly, but surely. If you have to sell your soul to the devil himself, FIGHT YOUR DUI LIKE HELL, because the alternative is a LIFE of HELL.

As a DUI defense attorney, I suppose this is self-serving, but…If you are ever arrested for drunk driving, find the most qualified DUI lawyer you can — one specialized in DUI defense with extensive experience and a sterling reputation in the field. Defending DUI’s is ALL I do, over a thousand so far.

Woman Given Breathalyzer Tests 54 Times in a Year

August 11th, 2013

Kidlington, England. July 18 — A British woman said police pulled her over and administered Breathalyzer tests 54 times in a single year before she filed complaints about officers.
Katie Bowman, 24, said Thames Valley Police pulled over on suspicion of drunken driving 54 times in a single year, despite the fact that she does not drink alcohol, The Daily Telegraph reported Thursday.

Bowman said the police were retaliating for a complaint she filed. She did not say what the original complaint was about.

She said notes left on her file by police caused her to lose her job as a paramedic.

”It is absolutely a direct result [of the alleged police action]. That was what was put on my CRB [Criminal Records Bureau check] … that caused me to lose my job,” she said.

The Thames Valley Police released a statement in response to Bowman’s allegations.

”The need to retain the intelligence reports relating to Ms. Bowman was reviewed in 2012 [following which a number were removed] and again in 2013 following further requests made on behalf of Ms. Bowman,” the statement said. “Ms. Bowman has made a number of complaints to Thames Valley Police, some of which were unsubstantiated and some resulted in disciplinary proceedings against officers. In one case Ms Bowman made a complaint against a number of officers, which she subsequently withdrew. Despite the fact she withdrew her complaint, Thames Valley Police continued with disciplinary proceedings against the officers.”

”The complaints made specifically about harassment were unsubstantiated,” the statement read.

Does anyone out there think this practice is limited to England?

Dash-Cam Video Shows Woman’s Arrest During Diabetic Episode

August 11th, 2013

Santa Fe. NM. July 19 — Shocking dash camera footage shows a diabetic woman being dragged out of her car by Santa Fe County sheriff deputies, all while she was having a diabetic episode.
Even more alarming she’s just left handcuffed on the pavement.

 Right now, the sheriff said some things should have been done differently and he takes the matter seriously. 

In the video, deputies yank Revina Garcia out of her car. She had just been in a car accident after having a severe diabetic attack and is completely limp. 

”I was just lost, I was just lost,” Garcia said.

After the slamming into the back of a truck, Garcia said she couldn’t open the door. 

”I just didn’t know how to open the door,” Garcia said. 

A deputy shattered Garcia’s car window and pulled her out of the car. Garcia was then thrown on the street face down and handcuffed.

”In this case there was no resistance. We are looking at that very seriously,” Santa Fe County Sheriff Robert Garcia said.

With Garcia’s face on the ground and her not moving at all, deputies walk away. Garcia said her blood sugar was so low that she could have gone into a coma.
“What concerns me is there is no need to lay someone on the ground for that amount of time. There were other deputies around that could have assisted in at least sitting her up or having her placed in a cruiser,” said the sheriff.
Garcia was face down on the pavement for more than a minute, and the Sheriff says he’s going to look into just how hot it was that day and how hot that pavement could have been. 

The video shows deputies finally taking Garcia to the police car. 

”I’m surprised I didn’t go into a coma in the back of that police car,” Garcia said. 

After 10 minutes, paramedics arrived and Garcia was treated for the diabetic episode.

The sheriff said this incident will bring awareness and training to make sure this never happens again. Right now, there’s an internal review of Revina Garcia’s arrest. 

The sheriff plans on meeting with the Garcia family to discuss ways law enforcement can improve and make sure medical issues are considered at each scene and treated properly.

(From Lawrence Taylor)

Lisa Steed and UHP DUI arrests and information

October 12th, 2012

The link below is MY client getting tazed!–ztuG8

Observations on Interpretation of Blood Alcohol Levels derived from analysis of Urine.

April 13th, 2012

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.

Read Full Story

If you need a Salt Lake City DUI attorney, please call David Rosenbloom at 1-800-384-8946

The New Jim Crow

June 1st, 2011

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.


Do We Really Care About The Hearts And Minds Of Citizens?

June 1st, 2011

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.

Datamaster Intoxilyzer Comes Under Fire

May 27th, 2011

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

Legal Prescription Drugs And DUIs

May 26th, 2011

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!

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