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
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
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
District Attorney Sets Up Conviction Review Unit
It was good to hear that District Attorney Bonnie Dumanis has decided to start a new unit whose purpose will to be to review cases where someone has been convicted, but, there is now some reason to think they were not guilty.
The new unit will be named the George “Woody” Clarke Conviction Review Unit. I am sure Woody Clarke would be happy. He is a late Judge who had been a prosecutor. He was also one of the most well liked and respected people around the courthouse. When DNA was first being used as evidence in court, he was THE person in San Diego who learned all the science and details of how it worked. In fact, when the Los Angeles D.A.’s needed someone to present the DNA evidence at the O.J. Simpson trial, they called Clarke to do it.
While it is good news our D.A.’s Office is setting up this unit, there are three aspects that are a little troubling.
First, why did it take so long? Every prosecutor’s office in the nation should have one of these units. Prosecutors are not supposed to just be trying to get convictions. They are sworn to seek the truth. That obligation should apply even if they have already gotten a conviction. Every competent person in the legal community knows that some innocent people have been convicted, some even executed. Our awareness of this has only increased with the advent of DNA science and the continued improvements in that field.
Second, it is a shame that only a small group of cases will be reviewed by the new unit. They will only look at serious or violent felonies and only if the person is still in prison. I am sure this is because the two Deputy District Attorneys assigned to the new unit will only be able to review so many cases. But, it does mean other innocent people will remain in prison and those who are out will not have this opportunity to clear their names and records.
Then that leads to the third problem. Why such a tiny unit? We can applaud the concept, but, at the same time, be disappointed in the scope. Our County budget dedicates tens of millions of dollars each year to pursue arrests and convictions. You would think we could carve out more to save innocent people.
We should also keep in mind that the unit will only take action if there is “verifiable” evidence of innocence. The single biggest reason for wrongful convictions in the United States is incorrect witness identification. The work of groups like the Innocence Project and numerous studies have shown that to be true. Eye witnesses are wrong a lot, but, they are also often the most compelling evidence to jurors. In many cases, there will not be any “verifiable” evidence to rely on. So, those innocent people will not get any help.
This reality only reinforces the need to take the standard of “proof beyond a reasonable doubt” so seriously and that no juror should ever vote guilty unless there is no chance the person is guilty.
I am sure Woody Clarke is happy and proud. I bet we could make him more of both if we tried to do even more.
San Diego Defenders (619) 258-8888