Archive for the ‘DUI’ Category

Last month in Marijuana DUI (Part I), we discussed the extreme difficulty the scientific community has had in measuring the effects of marijuana on a person’s ability to drive. In part two of this blog post, we now turn to the practical difficulties criminal defense attorneys face in defending marijuana DUI charges.

Jury Selection on a Marijuana DUI Case

As a starting point, it is pretty much the experience of every defense lawyer that jurors tend to analogize marijuana to alcohol when it comes to DUI.  As we discussed last month, there is no .08 limit for marijuana for THC.  Consequently, jurors cannot convict a person based on a “number” alone.  The criminal cases then turn when the prosecuting attorney proves that the person was actually impaired by the marijuana use.  But how does marijuana impair a person’s ability to drive?  Jurors have a wide range of views and experiences on this subject. Many jurors have never used marijuana, and so they are inclined to think of it in terms of drugs they have tried such as alcohol or prescription pills. Additionally, some jurors may have used marijuana in their youth and experienced a strong, somewhat hallucinatory experience as a first-time user. As one would imagine, asking prospective jurors about their experience with illegal drugs can be a little awkward.  In urban environments such as Spokane or Seattle, jurors have a bit more anonymity during the jury selection process. However, in rural locales such as Okanogan County, Stevens County, Lincoln County, or Grant County, jurors are much more inclined to actually know one another.  A defense lawyer or a prosecutor is just not going to get a straight answer out of the jury panel on the subject of marijuana use.  Additionally, jurors in those rural counties such as Okanogan or Stevens County are going to have, on average, less accepting views toward marijuana use as a whole than say Seattle, for instance.

Marijuana Use and Observation of the Police

A prosecution for a marijuana DUI usually involves a police officer testifying about the ways he or she believed that a driver was effected by marijuana or THC. Jurors come to court knowing what a drunk person looks like, but often have no idea about the ways marijuana effects (or doesn’t effect) a person. Drug recognition experts (DRE’s) usually testify that a driver having consumed marijuana will have dilated pupils, red or bloodshot eyes, a lack of convergence of the eyes, an elevated pulse rate, elevated blood pressure, eyelid tremors, and disorientation. Compared to DUI involving alcohol, much less is taught about marijuana DUI investigation at the police academies. Officers seem to exchange tips on these investigations, and the techniques are frequently the subject of discussion in online police forums, see here, for example. Much of what the police study comes from the NHTSA manual Drugs and Human Performance. Unfortunately this volume is full of some pretty odd opinions and discredited techniques on such investigations. The manual mentions the “green tongue” phenomenon, or green coating on the tongue that a smoker of marijuana is “supposed” to have.  Additionally, the manual opines that marijuana cigarettes “are often laced with adulterants including PCP or crack cocaine,” which is something I certainly don’t hear about “often” in my practice as a defense lawyer. Officers often describe looking closely with their flashlight for flakes of marijuana that might be on drivers’ laps, or remain on the tongue or mouth of a user after smoking a marijuana cigarette.  Officers also seem to be of the opinion that hanging tree-shaped air-fresheners indicate that the driver has been using marijuana, according to above mentioned forum.

So as you can see, the current state of marijuana DUI enforcement leaves much to be desired.  The practical effect of all this is that drivers are often at the mercy of the subjective opinions of the officer as to how he or she looked.  These “evaluations” for marijuana intoxication are typically not video-recorded.

What do you think about how society should deal with this issue?  Please share you thoughts, opinions, or experiences on this subject in the comment section below.

(The author Steve Graham is a criminal defense attorney practicing in eastern Washington.  See his further information on the laws DUI or marijuana in the State of Washington.)

Before we turn to Anne Bremner, who remembers Randy Dorn’s DUI?  Randy Dorn is the State’s School Superintendent who avoided a publicity circus surrounding his DUI earlier this year by simply marching in as soon as he could and pleading guilty.  See earlier blog post. It appeared at the time that Randy Dorn plead guilty straight-up to the DUI rather than hold out for a reduced charge, simply to avoid the appearance that he was receiving any special deal.  In contrast, look at the media storm that Seattle Lawyer Ann Bremner has caused by her DUI. She initially blamed her erratic behavior on a concussion, then raced to court to attempt to prevent release of the police reports.   This was the subject of the Seattle Weekly Blog this week.

Lawyer Anne Bremner often serves as a guest on the evening news to discuss high-profile legal cases.

Rick Anderson writes: “It would subject her to embarrassment and ridicule if police records are released to the press about her arrest for drunk driving, says popular Seattle attorney Anne Bremner. Instead, she has chosen to be embarrassed and ridiculed for not releasing those records. For such a media-savvy attorney with an impressive legal background, it appears she has already lost in the court of public opinion.”

You really have to wonder what Anne was thinking in trying to go to court to stop the release of her police reports and 911 calls.  Washington has some of the toughest public disclosure laws in the U.S.  Rick Anderson goes on to write: “For a smart and creative lawyer whose client list includes cops and other public officials, the brain-damage excuse – while an oldie and a goodie – isn’t much of a defense. It’s a sure-fire headline maker, in fact. Of course, we’re assuming that wasn’t her intention.”  I guess I am not sure I agree with Rick Anderson that we can assume that that was not her intention.  You often hear the expression that “there is no such thing as bad publicity.”  I am sure this is true for hip-hop artists, but is it true for high-profile defense attorneys?  In this day and age, negative publicity seems to dominate the media’s interest. I really doubt if Anne Bremner gives a hoot about her name in the paper for a DUI arrest. While she may not be a rap star, she certainly is not the elected school superintendent, and I doubt if her clientele would really care about a DUI conviction.   Let’s face it, defense attorneys are not always the most adored members of society.  The public associates us too much with the clients we represent.  Our work might be viewed as a constitutional necessity, but we do not hold ourselves out as roll models.    I thought of this today when I read in the Seattle-Times that the police had released the police reports of her DUI arrest. (The Seattle-Times posted the reports online here.)  As police reports go, the arrest is pretty run of the mill.  You can tell she is a criminal defense lawyer because she knows enough to refuse to take the field sobriety tests or to waive her right to remain silent.  And like most people who are arrested for DUI, she sounds as if she was a real pill for the police to have to deal with.  The police attempt to portray her as throwing her weight around, and boasting that she is “famous”.  But I half wonder if the police don’t sometimes embellish these sort of statements.

The elected school Chief Randy Dorn plead guilty to DUI today in Orting Municipal Court today.  Already in the comment section of article in The Olympian, the public is jumping on him for setting a bad example.  One person posted the comment: “The kids are saying ‘see, it can’t be too bad if our schools leader does it’.”   That seems like a stretch – I am sure the kids really don’t give a hoot about the State’s elected schools chief, or even know that we have one.  How many of you knew who Randy Dorn was?  Besides filling the pages of The Olympian, this seems like a non-story.

“How he handles it will more likely determine what the outcome will be than the action itself,” said Seattle political consultant Cathy Allen of The Connections Group.  If convicted of the charge, Dorn, 56, will have to admit wrongdoing, apologize and promise to keep clean, she added.  “The public is pretty forgiving as long as (a politician) is apologetic and takes steps to make sure it never happens again,” Allen said. But public officials who try to justify their actions – or, worse, lie about them or ignore them – can find themselves in trouble, she added. In those cases, she said, “the court of public opinion can come down pretty hard.”

The interesting thing is that Randy Dorn plead guilty “straight up” meaning he did not get the charge reduced.  I am sure other Washington lawyers would agree, just about every DUI that comes in on someone who only blew a .11 would get reduced to Negligent Driving First Degree, if they are 56 and have no priors, and no accident resulted.  Negligent Driving First Degree is driving negligently while exhibiting the effects of having consumed alcohol, and this crime counts as an alcohol related offense.  Usually it is the repeat offenders in Washington that get really hammered  in court.   Is it possible that Randy Dorn turned down a plea offer to reduce the charges just to avoid allegations that he is avoiding accountability?  I have blogged in the past about how public officials sometimes get accused of getting special deals on DUIs even when they were treated like everyone else.  See here.  The funny thing is even the City Police Chief of Orting commented to the media that the charge may be reduced.  See prior article.  It looks like Randy Dorn would have pleaded guilty to the offense no matter what just to get the matter done and over with before the time he is up for re-election in 2012.

In the last ten years, police in Washington State have paid a lot more attention to the problem of drugged drivers.  A rookie cop can detect a driver who has drank too much alcohol, but it takes a little training and experience to determine if a driver has been using controlled substances such as cocaine, methamphetamine, marijuana or prescription pills.   After completing certain training, an officer can become a Drug Recognition Expert or “DRE”.   We have many such DRE’s here in Washington, especially in Spokane.  The problem is that people are catching on that the so-called drug recognition “experts” really are basing their opinions on many things we do not really recognize as science.  Take for example, the green tongue phenomenon.  The National Highway Traffic Safety Administration warns of the following characteristics of a marijuana DUI: “… characteristic indicators may include odor of marijuana in car or on subject’s breath, marijuana debris in mouth, green coating of tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete thought process, and poor performance on field sobriety tests.”  Criminal defense lawyers are not the only ones questioning the validity of this “green tongue” thing.  The Washington Court of Appeals also questioned whether a green tongue establishes probable cause for anything.  The court agreed with the defense lawyer that no probable cause existed, explaining:

Trooper Lane contends that a green tongue is indicative of recent marijuana use. Even assuming he is correct, the absence of any other indicators of recent marijuana usage, combined with the many innocuous ways to get a green tongue, indicate a lack of reasonable suspicion.  Although we assume the officer’s assertion to be true for purposes of this opinion, we are nevertheless skeptical as to its accuracy. We find no case stating that recent marijuana usage leads to a green tongue. The only case we could find that remotely supports such a proposition is State v. Baity, 140 Wn.2d 1, 991 P.2d 1151 (2000), wherein the opinion’s fact section mentions that the defendant, who had admitted to recent marijuana usage, also had a green tongue. Beyond this observation, however, the court never analyzes whether the green tongue and the recent marijuana usage are linked. And the officer who made the observation does not assert a connection between the two.

To you non-lawyers out there, that is the Court of Appeals basically politely telling the Washington State Patrol DRE’s that they are full of baloney.  These “experts” are often very well-trained and seemingly professional, and can be very convincing to jurors.  I defended a drug DUI one time where a DRE from Okanogan County claimed he had probable cause to believe that the driver was under the influence of marijuana.  The DRE wrote in his report:

“He had raised taste buds on the back of his tongue with a green coating on his tongue.  His lips were burnt and crusty on top and bottom lips.  … His thumb and index fingers of both hands were discolored.  The discoloration on his fingers and lips was consistent with holding hot smoking pipes.”

This seemed a little fishy to me, and I eagerly awaited the toxicological report on the blood test.  The results indicated that there was absolutely no marijuana (even in trace amounts) in this driver’s blood.  Instead there was methadone found in the drivers blood, just as it was found in his car.

Is there any system of accountability for the DRE’s out there?  Is anyone keeping track of all the times the DRE’s got it wrong?   The Supreme Court in Utah is also catching on.  In a court opinion State v. Hechtle, they explained:

We are troubled by the trooper’s reliance on the appearance of Hechtle’s tongue as dispositive proof of marijuana use. Even if we were persuaded to accept the State’s position that the condition of Hechtle’s eyes and tongue are presumptively suggestive of marijuana use, nothing in the record indicates either how long these conditions are sustained or how long measurable quantities of marijuana remains in the system as required by the statute.

So, I guess in some sense, the system is working – courts are catching on.  But on the other hand, what other aspects of DRE “science” are slipping past us all?

Police, judges, and other public officials often mess up like the rest of us by getting a DUI.   The cases inevitably make the newspaper, as well they should.  However, I am often a little surprised by how the media portrays DUI cases that are resolved with a “deferred prosecution”.  A deferred prosecution is when a DUI defendant gives up his right to a jury trial, and the case is continued for five years.  The defendant gets fives years of probation and alcohol treatment, and if he stays out of trouble then he may have the case dismissed at the end of 5 years.   Under Washington law, any DUI defendant is eligible for a deferred prosecution if he or she has not had one before.  So why is it that the news media portrays this as some sort of special deal reserved for people with “connections”.   For example, look at this headline in the Spokesman-Review: “Police Sergeant Avoids Prosecution“.   The article goes on to explain that the defendant has to go to alcohol treatment and stay out of trouble for five years.   How did the public react to this story?  Let’s look at the comments to the story that are posted online.  “Tinman” wrote: “WHERE DO I GET ONE OF THOSE ”GET OUT OF JAIL” CARDS FOR MYSELF??!!”   The answer is any district court in the State!  The forms are online here!  Last summer a city manager in Burien signed up for a deferred prosecution for a DUI, and the headline read that the judge “granted” the deal.  An angry comment read: “It seems we have a two tier judicial system, one for the rich/politician and one for Joe six pack.”  The truth is that the deferred prosecution is easy to sign up for, but difficult to complete.  The treatment is rigorous, and the conditions of probation severe.  Random UA tests are done that can detect alcohol use within a period of 72 hours.  People who complete the programs are in the minority.  I remember when I was a prosecutor, the judge and I were always glad to see someone successfully complete such a program.  Now that I am a criminal defense attorney, I always make sure that my clients know what they are getting into when they sign up for such a program.  It is truly for people who wish to quit drinking.

I am often troubled when the criminal justice system fails to take proper steps to guarantee that evidence used is scientifically reliable.  Juries give a lot of credibility to expert witnesses who come to court to testify about evidence found in a criminal case.  The experts, however, are often not very thorough in making sure that the proper steps are followed in collecting the evidence.  Lawyers should be alert to these flaws.

I was recently defending a man accused of an alcohol-related driving charge, where a blood sample was taken at the hospital to test for alcohol content. The person taking the sample filled out the form describing how he drew the sample. At the bottom of the page on the blood draw form, the lab worker is called upon to fill in a box stating: “Chemical Used to Sterilize the Area.” The phlebotomist wrote in the word “water”. This was perplexing. The only explanation for this gross lapse of scientific standard is that the phlebotomist was aware that an alcohol based sterilizer could not be used, but he was unaware of what sterilizer could be used (iodine). It is important to take note that the sterilizing agent is not just used to protect the patient from infection, it is critical to protecting the integrity of the blood sample. As one scientific journal has explained: “The venipuncture site must be cleaned with an antiseptic prior to venipuncture. Otherwise microorganisms from the skin could be picked up by the needle and carried into the vein, creating the possibility of infection, or flushed into the collection tube on blood flow, contaminating the specimen.” See the publication Phlebotomy Essentials, 3rd Ed., McCall and Tankersly, 2003, pp. 245-246.  Contamination of the specimen is exactly what everyone should be trying to avoiding in a DUI or DWI case. The accuracy of blood results are threatened by bacteria. One such bacteria is Candida albicans. “Candida albicans is a diploid fungus (a form of yeast). . . under normal circumstances, C. albicans lives in 80% of the human population.” See //en.wikipedia.org/wiki/Candida_albicans. The presence of this yeast in blood samples can lead to dramatic increases in alcohol levels even in samples containing preservative, particularly when the sample is not properly refrigerated.   See The Effects of Temperature on the Formation of Ethanol by Candida Albicans in Blood, Chang , J. and Kollman, S.  E., Journal of Forensic Science, JFSCA, Vol. 34, No. 1 pp 105-109.  (1987).    Studies show blood alcohol appearing in samples that previously had not had blood alcohol present, and in amounts up to .05%.  So, a person who is accused of driving with a high level of alcohol in his blood stream in a DUI case, needs to look at his case very carefully to see how the sample was collected.  This sample in question was drawn from a hospital right in Stevens County Washington.   This problem needs to be looked out for because it is not uncommon.  As one medical journal has put it:  “The most common source of contaminated percutaneous blood cultures is often thought to be the skin of the patient at the site where cultures are obtained.”  See Updated Review of Blood Culture Contamination, Keri K. Hall and Jason A. Lyman, Clinical Microbiology Reviews,  p. 788-802, Vol. 19, No. 4. (October 2006).  The journal further explained: “…inadequate skin preparation is thought to be the most common cause of blood culture contamination.” Other medical journals agree:  “Skin microflora represent the most common isolates recovered from contaminated cultures, suggesting that lack of proper skin preparation is the most common cause of contamination.”  See Review of Clinical Trials of Skin Antiseptic Agents used to Reduce Blood Culture Contamination, Anurag Malani, MD; Kim Trimble, MD., Infection Control and Hospital Epidemiology, p. 892 (2007).

The blood sample in question was entirely unreliable due to the failure of medical staff to take the proper precautions.  The crime of DUI has serious consequences, and it stands to reasons that a person may only be convicted of such an offense if the evidence used against him is scientifically reliable.  If fermentation is taking place in a blood sample due to contamination, there is no way to determine what the blood alcohol level was at the time that the sample was actually drawn.  Often times the laboratory staff, or police, or even prosecutors on occasion turn a blind eye to the contamination of the evidence in a court of law.  A person facing a DUI or DWI charge stands alone in a court of law against flawed practices of evidence collection.  It is important for attorneys to assist a defendant to help him through our imperfect criminal justice system.  The problem with the blood collection in this case is not limited to Stevens County.  I have observed similar instances in Okanogan and in Grant County.