California Caffeine DUI vs. Stoned Drivers Safer than Drunk Drivers Says the Fed
So poor Joe Schwab is now accused of DUI in California after an “undercover” ABC agent pulls him over in her unmarked car for driving erratically reports ABC news. Only the ABC “agent” is employed by the California agency known as Alcohol Beverage Control, not ABC news. And, oh yeah, poor Joe Schwabb wasn’t drunk, wasn’t stoned, wasn’t under the influence of a scheduled controlled substance. Joe allegedly drank too much “joe.” Coffee is the cup Joe Schwab according to the “Guardian” that picked up in a story almost a week ago from Solano County outside of the Bay Area where Vallejo is the county’s biggest city.
It took nine months before Joe Schwab was charged for driving while impaired on caffeine. It seems hard to believe and neither attorneys Dan Smith or Jon Pettis, of San Diego Defenders APC, had ever heard of such a thing in their combined experience of nearly 50 years. “We have seen cases where a client’s PAS breathalyzer (hand-held breathalyzer) was 0.00% and our client then chooses a blood test and returns positive for prescription or other drugs, but we have never seen such a desperate attempt by the prosecution that they would send out for second test for anything, and I do mean anything!” said DUI attorney Dan Smith.
“What makes this case extremely unusual is that an unmarked ABC agent pulled over a driver for allegedly cutting her off and erratic driving. When all the tests came back negative, the blood was sent to Pennsylvania for a screen for ANY type of drug and all they came up with was caffeine.” So, 9 months after his arrest Joe Schwab is facing DUI charges. Attorney Jon Pettis laments that we would love to defend Joe Schwab in that DUI case.
But poor Joe’s DUI case brings up a question that NHTSA will be wrestling with for a long time. How much of anything is enough to impair a driver. Marijuana is now as legal as coffee. So the ongoing question will, no doubt, make many research institutes happy about the grants they will need to opine on the matter.
Ever since medical marijuana laws started to be passed, prosecutors and law enforcement have been up in arms about the threat of more stoned drivers and the assumed risk they are. With several states, including California, now legalizing pot outright, that panic has grown. It turns out, it may not be all that bad.
According to a study just released by the National Highway Traffic Safety Administration (NHTSA), a Federal agency that is usually very anti-any impaired driving, drivers who tested positive for marijuana were no more likely to crash than those who hadn’t used any drugs or alcohol prior to driving.
This study confirms research done years ago that showed drivers with small amounts of THC9, the active ingredient in pot, in their system were sometimes statistically safer drivers than people with no alcohol or drugs in their system whatsoever.
This recent study by NHTSA didn’t just stop with marijuana. The researchers found that along with marijuana, other legal and illegal drugs like stimulants, painkillers and anti-depressants, there was no statistically significant change in the risk of a crash caused by using the drugs before driving. However, for alcohol levels of 0.05% or more, the driver was seven times more likely to crash.
NHTSA said it pretty clearly, “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment.”
The reason this is a big deal is because some States are setting per se legal limits for THC( like they have for alcohol. Almost everyone knows that driving with a blood alcohol level of 0.08% or more is illegal. Colorado, for example, when it legalized pot, made it so that it was illegal to drive if you have 5 nanograms of THC9 in your system. California is considering doing the same thing.
The problem is, while research shows most drivers are unsafe at 0.08% blood alcohol content, the research about marijuana and other drugs cannot come up with any magic number.
The reality is that some drivers after recent pot use could be below or above 5 nanograms of THC( in their system and be dangerous and too impaired to drive. But, someone who is not high could still have well above 5 nanograms of THC9 in their system and be perfectly safe to drive. That becomes even more true for people who smoke pot frequently. THC can stay in fat cells for days or weeks, especially if it is used fairly regularly. So, someone could be totally sober, no THC affecting their brain, but, under the per se laws, still be found guilty.
You can also purchase Judge’s Top Secret Guide to Beat a DUI by Hon. Ralph G. Smith and Daniel M. Smith, Esq. at http://ow.ly/grTI307z53N
A Police Officer Told Me To Use Uber, Lyft or Sidecar and Later I Got a DUI?
Lawyers who handle DUI’s are seeing it more and more. People plan to go out and use Uber or Lyft or Sidecar or any of the other ways of getting around, and then later decide to drive home and get arrested for DUI. Sometimes a cop might tell a client to use one of the shared ride apps. The client then goes to a friend’s house after an office holiday or Christmas party, sleeps it off and gets up to go get their car. Just like the cop told them to do! Problem is…client gets pulled over that morning and has a BAC well over the .08% legal limit to drive.
Or … Lots of times they all meet at one friend’s house and Uber or Lyft or Sidecar from there and plan on crashing at the friend’s house. Inevitably, somebody decides they would rather get home because they figure they are safe to drive. Next thing they know, they are being pulled over by the cops … and the Jack Daniels “cologne” remark does not amuse the police officer.
Well, you probably guessed it! Our client comes to us and declares that they did exactly as the police officer directed them to do. Get a safe “shared ride app” ride home to sober up before retrieving the car. So what went wrong (besides the usual whoops, did I just say that to the boss after imbibing the holiday cocktails a little to freely?) What happened that I would end up with a DUI ticket after the company holiday party?
There is actually a good explanation for this “white elephant” of a problem. It is called the Mellanby Effect. We tend to feel the effects of alcohol more when our blood alcohol level is rising than we do when it is coming down otherwise known as “burning off the booze.” Experts are not exactly sure why this happens. The best guess is that it is, as Einstein would say, “relative.”
That is, when your alcohol level is going up, you’re feeling better and better and you are enjoying yourself more. When your alcohol level is coming down, you are getting more and more sober and you also add in the anxiousness and desire to get home into the equation. So, we all try to be responsible and wait until we feel sober to find out car and drive home. But, it is “relatively” easy to still be over the legal limit if you had a really good time at the holiday party.
If you started off using a ride sharing app, but, then got caught driving home and arrested for a DUI, you need to hire a DUI lawyer who knows how to use the fact you had been responsibly using a ridesharing app (not to mention the prosecutor may be hip enough to use one as well) in the negotiations in your DUI case. Depending on the facts of your case, it can mean the difference between getting a good deal and avoiding the DUI or in how much punishment you end up with. Remember, with the use of Livescan background checks these days, a DUI may cause more problems than you bargain for.
Far too often we at San Diego Defenders hear clients say “I was guilty anyway, so I just pleaded guilty with the Public Defender.” That can be a HUGE mistake. Our Constitution was designed to protect us, and if there is a possible defense to a DUI charge, we are committed to finding it and using it to our clients benefit. A benefit that may not be realized until years down the road when our client is applying for a new job!
Governor Brown Signs Bill to Protect Californians from Civil Forfeiture Abuse
California now has some of the most far reaching protection against law enforcement seizing property and money. Starting January 1, 2017, for there to be a civil forfeiture of property or money in most cases, the government will first have to obtain a criminal conviction before they can keep the property or money.
Prior to this new law being passed, there were very few restrictions on State law enforcement regarding forfeiture cases. Often times, when police make drug arrests, along with evidence they also seize any money they find assuming it had to do with drug dealing. In 1994, California set up rules concerning these cases, including that the government had to prove by clear and convincing evidence that the property seized was tied to the illegal activity.
In response, to get around the limitations, State law enforcement would turn the money over to Federal officials for Federal forfeiture, thereby sneaking around the State rules. Then, State law enforcement would get some of the money back from the Feds.
The new law works to prevent this from happening. It also now requires the State to get a conviction before it can profit from the property or money seized in many cases. The new law will require a conviction before any forfeiture where the sized items were up to $40,000.00 or other property like cars and houses regardless of their value. Previously, there was only protection for up to $25,000.00.
Furthermore, in cases where the Federal forfeiture process is used, the new law prevents law enforcement from making any profit from the seized property or money unless there was a conviction in an underlying cases involving up to $40,000.00 or cars or houses. The reason for the limit of up to $40,000.00 is because law enforcement and prosecutors originally were against the bill. So, it was negotiated that civil forfeitures over $40,000.00 would not need to have a conviction. IT IS IMPORTANT TO KNOW THAT EVEN THOUGH THAT PROTECTION DOESN’T EXIST, PEOPLE CAN STILL FIGHT THE STATE KEEPING THEIR SEIZED PROPERTY AND MONEY. Law enforcement had made it a practice to seize as much valuable property as they could when a drug arrest was made just on the assumption that the property was tied to the illegal activity. Sometimes it wouldn’t even be the property of the person arrested. They did so, not because they were sure the property was from illegal profits, but, rather so they could cash in and profit from the seizures.
The new bill means to stop that abuse. The bill was widely supported and eventually even the opposition of prosecutors and law enforcement was dropped. Part of the groundwell of support for the new change came after areport, “Above the Law: An Investigation of Civil Asset Forfeiture Abuses in California” was published outlining how law enforcement was essentially stealing and profiting from seized property and money without proof it was from an illegal activity.
San Diego Defenders (619) 258-8888
San Diego Judge Refuses to Lose His Bias Now Finds a Formal Complaint
Is it about time? It was reported today that a San Diego Superior Court Judge Gary Kreep has had a formal complaint made against him that could lead to his removal from the Bench.
The Complaint details how Kreep repeatedly made racially and sexually charged comments in court and some that were both racially and sexually charged, like speaking to a Taiwanese prosecutor about Chinese prostitutes.
The Complaint also includes information on how then candidate Kreep did not end his political activities as required of persons running for Judge.
Kreep was also a “birther”, a person who was claiming President Obama was not a natural born United States citizen and falsified his Hawaii birth certificate. Maybe that should have been enough to bar him from becoming a Judge if it demonstrated that he could not be objective when weighing facts in controversy. After all, that IS what a judge is supposed to do. And lawyers who appear before judges often will openly express a concern regarding openly biased decisions.
San Diego Defenders has openly commented that we believe that being a “former prosecutor” is a potential detriment to makings of a good criminal defense and DUI defense attorney. That is to say, if you are a prosecutor and your job is to convict those charged of a crime, it is a hard habit to shake once you become a defense lawyer. Arguably, it is the prosecutorial bias.
The “bias argument” can be made against judges that are former prosecutors. It is hard to change your prosecutorial bias overnight and indeed it does take some –re-programming! This leads to the same argument against “birthers” running for public office. Main stream media is reminding Trump and Clinton in this election season that they both had a “birther bias”. Bias is almost always an issue during an election.
Judges are elected (despite many conveniently being appointed months before the election where they run as a “sitting judge”). The bias many voters have is to elect the so-called “sitting judge” although the voter is unaware that the judge had been sitting for only a few months. How then did Judge Kreep slip in on the bench? He was elected on one of the few political races each decade in which there was no sitting judge previously appointed. Lawyer Gary Kreep ran against lawyer Garland Peed. That’s right, it was “Kreep vs. Peed” a memorable matchup! Birther Kreep won and now it seems to be haunting him just before Halloween 2016.
The “birthers” never claimed that Obama’s mother was not a United States citizen. Birthers only claimed Obama was born outside the United States and therefore did not meet the constitutional definition of a natural born citizen. Setting aside the fact that nearly every legal scholar who has studied the issue has concluded that if a person is born to a United States citizen, they then are a natural born citizen (Just ask Ted Cruz, born in Canada or John McCain born in Panama ), to push the birther concept may show a lack of judgment. And, to be fair, both Trump and Clinton appeared to have made the same argument. That is not what this article is about.
“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President….” This is from Article II, Section 1, Clause 5 of the United States Constitution. Whether or not a person is natural born or not is only significant for one reason, whether they can become President. There is no other use or significance for this term.
So, a “birther” was asking us to believe that back in 1961, when many Black Americans were prevented from even voting, the Civil Rights Movement at its height, racism and discrimination everywhere, Obama’s mother decided to fake his birth certificate so he could be a citizen and perhaps President someday.
Anyone can see how Judge Kreep got off to a bad start. But to ignore his duty to set ANY BIAS aside as a judge seems to have been his undoing and the basis on the serious challenge he now faces in remaining on the bench.
San Diego Defenders (619) 258-8888
Ignition Interlock Problems
With California just passing a law requiring ignition interlock devices for all DUI convictions, it might be useful to look at what problems have arisen around the Country in other States that require ignition interlocks.
Ironically, if you Google basic questions about ignition interlock devices, you are hit by loads of ads for interlock companies and listings for their own website FAQ’s pages that blame problems on anything but the device.
Apparently, the companies themselves recognize the machines regularly have problems and are trying to exploit that fact by trying to lure away disaffected customers of other ignition interlock companies.
Once you slog through all the industry advertising, you find there are thousands and thousands of complaints about these devices coming out. One can only imagine that when the California law goes into effect Statewide January 1, 2019, since we are the biggest State, the problems are onlygoing to get worse.
In fact, one woman had all of these problems with her van and she didn’t get a DUI, her husband did. Her problems raise a whole other issue. Like most families, hers has more than one vehicle. If the person who gets the DUI drives all the vehicles, like most adults do, then ALL the vehicles have to have the ignition interlock device installed. That means ALL the drivers have to use the ignition interlock when they drive.
Sadly, it is not just a few people who are giving problems with the ignition interlock devices in their vehicles. Well respected organizations like Consumer Affairs and the Better Business Bureau are reporting thousands of problems. In fact, when you view their websites concerning complaints and problems, you see that thousands more people are viewing them and finding them useful, meaning along with the thousands of people complaining, there are thousands more researching ignition interlock problems.
California Ignition Interlock Device Law
Yesterday, Governor Jerry Brown signed into law Senate Bill 1046. Starting January 1, 2019, persons who get even first time DUI’s will have to have an ignition interlock device (IID) installed in order to get a restricted driver’s license.
Currently, if you get arrested for a DUI, prior to any conviction, the Department of Motor Vehicles suspends your license for four months. However, you can get a restricted license after 30 days of suspension if you enroll in a first conviction program and have proof of liability insurance (a SR-22 form) on file with the DMV. The restricted license allows you to drive to and from work and to and from the DUI program. There are longer periods if you have multiple DUI’s or if it is a felony.
After a DUI conviction, your license is again suspended and you can get the restricted license again immediately as long as you are in the DUI class and have the SR-22 on file.
The new law that will go into effect January 1, 2019, has already been tested out in four Counties, Alameda, Los Angeles, Sacramento and Tulare. Under the new law, for the first license suspension, instead of waiting 30 days with a license suspension, if a driver gets the ignition interlock (IID) installed, they can avoid the suspension and get a restricted license.
After a DUI conviction, the installation of an ignition interlock device (IID) would be mandatory. It would also be necessary if the driver wanted to get a restricted license again after the re-suspension following conviction. If persons get more than one DUI or if it is a felony DUI, all the periods involved get longer.
What to Know About the New Ignition Interlock Law and IID’s in General
How is This Going to Change DUI Cases?
San Diego Defenders (619) 258-8888
Prosecutor’s Investigator Attacks Defense Attorney
So, prosecutors and some in the public like to ridicule defense attorneys for doing their jobs and protecting people accused of crimes. Then we read in the news today how an Investigator (a cop with a gun and a badge) working for the Orange County District Attorney’s Office physically attacked a defense attorney in a courthouse.
It was reported that while the defense attorney, James Crawford, was trying to speak with his client and advise him of his rights. An investigator form the D.A.’s office was interfering and refusing to back off. Then, when the defense attorney brought up the misconduct of the D.A.’s office, illegally withholding evidence about jailhouse snitches, the Investigator went ballistic rushing the defense attorney and beating him. The Investigator, whose name has conveniently not made into the news, yet, had to be pulled off the defense attorney by Santa Ana Police Officers. Now, the Sheriff’s Department is investigating.
This story is so disturbing for some many reasons.
Unlike many jobs, trial lawyers are competitive. The better you are, the better the chance you will win. And, yes, both prosecutors and defense attorneys look at it as winning and losing. But, when a prosecutor cheats or doesn’t really want to get to the truth, it is not just losing a game. An innocent person is going to prison. And, that may be the most horrendous thing that can happen.
San Diego Defenders (619) 258-8888
Can I Get a Marijuana DUI if I Have a Medical Marijuana Card?
In California, with medical marijuana being legal and the decriminalization of pot possession for personal use (it is now not a crime, just a ticket), many people are confused about whether you can get arrested for driving under the influence of marijuana. The simple answer is, you can.
It used to be that the law concerning DUI’s said it was illegal to drive a vehicle while under the influence of alcohol or drugs or both. To try and clarify things, these laws have now been separated. Vehicle Code section 23152(a) says it is illegal to drive while under the influence of alcohol. Vehicle Code section 23152 section(e) says it is illegal to drive while under the influence of any drug. Finally, Vehicle Code section 23152(f) says it is illegal to drive while under the influence of a combination of alcohol and any drug. To be clear, a “drug” can be any illegal drug, marijuana or any prescription drug whether or not you have a prescription.
As far as marijuana or pot is concerned, if you do not have any alcohol in your system, then it falls under section (e). If you also had something to drink, then it is section (f).
What Does Under the Influence of Marijuana Mean for DUI’s?
Marijuana DUI’s are far more subjective than alcohol DUI’s. With alcohol, there is a “legal limit.” If you drive and are 0.08% or more, that is illegal all on its own, even if you actually are not impaired. But, with marijuana, there is no set “legal limit.” That is for two reasons, first, there simply has never been a law passed that sets a legal limit for pot or marijuana. Second, and the biggest reason no legal limit has ever been set, there is essentially no reliable science to base a limit on.
While there is a fair amount of research that says most people are not safe to drive at 0.08% or more, there is almost no research on driving and being high on marijuana. I have heard prosecution experts testify that if you have even the tiniest amount of the active ingredient of marijuana in your system, you are unsafe to drive. That is simply not true. At the other end of the spectrum, some research has concluded that drivers at a moderate level of intoxication with marijuana, a little high, are statistically safer than your average sober person.
Currently, to be guilty of a marijuana DUI, you have to be so impaired by the marijuana that you cannot drive with the same care and caution of a sober person.
WARNING – Several groups are currently working to get propositions on the California ballot this June seeking to legalize marijuana here. Some are using the same model used in Colorado, who recently legalized pot. They set a “legal limit” for marijuana of 5 nanograms of THC-9. Almost anyone who smokes marijuana, especially if they do so regularly, will easily have 5 nanograms in their blood system if they smoked any time recently, whether they are actually high or impaired or not. A similar proposed law was defeated in Sacramento in 2014.
How Do They Determine If You Were Too High to Be Driving?
First, the police will look for symptoms of being “stoned.” They are trained to look for red/watery eyes, an odor of marijuana, problems remember ing things and keeping track of time. They will make you do field sobriety tests, but, they are of little value in determining if someone is impaired by the pot they used.
Second, they will test your blood or urine to see how much is in your system. Blood tests for marijuana look to see how much THC-9 is in your system. That is the primary active ingredient in marijuana that makes someone feel high and could impair them. The test will also look to see how much of the metabolites you have in your system, primarily THC-11.
Many prosecutors will not even file a pot DUI unless the person had at least 10 nanograms (ng) of THC-9 in their blood test. Anecdotal evidence suggests most people would be pretty “high” at that level. It is also useful to look at how much of the metabolite is present. The larger the amount of THC-11 as compared with THC-9 means the person is on the downside of the effects of the marijuana. The bigger the THC-11 compared to the THC-9, the further and further back towards totally sober the person is.
Very few lawyers really understand the science, or lack thereof, concerning marijuana absorption, how it affects the mind and body, how it is measured and the research concerning driving. If you get arrested for a marijuana DUI, it is critical to get a lawyer who does.
Medical Marijuana Cards
Whether or not you have a medical marijuana card or not really doesn’t affect a marijuana DUI case. It could help in negotiations or at trial to show you are used to the effects of marijuana. But, there is not exception to the law if you have a medical marijuana card.