How accurate is the breath test instrument on DUI arrests? What if the result is .10 or .11? Does that mean you are automatically guilty? What is the margin of error?

There are many things that can effect the breath test accuracy.  Let’s take a look at them one by one.

Contaminants

There are certain contaminants that can effect the accuracy of the breath instrument.  Acetone is one of those contaminants.   Acetone can be present on a person’s breath if they are diabetic or if they are fasting.  Exposure to certain paint thinners and chemical can also effect the breath instrument.   There are studies that show false readings as high as .40 for contaminates. (The legal limit is .08.)  DUI lawyers often see this in cases where people work around chemicals.

Breathing Irregularities

There are also certain breathing irregularities that can throw off the breath test by as much as 16 percent.  Holding your breath prior to the breath test can increase the alcohol reading, while hyperventilating can decrease the alcohol reading.  The temperature of your breath can effect the reading too, and the warmer  the breath, the higher the alcohol reading.  A fever can cause an elevated breath test as well, as can asthma, emphysema, or other such lung diseases.

Mouth Alcohol

If a person has alcohol present in their mouth, this can throw off the breath test result dramatically.  Alcohol can be caught in chewing tobacco and even in dentures or other dental work.  Mouth alcohol can also be a result of vomiting or belching, or a breath spray or mouthwash.

Keep in mind we are discussing the BAC instrument that DUI suspects blow into at the jail or police station.  The little portable instrument you blew into on the side of the road is not admissible.

A lot of times people think that a breath test result over .08 means that their case is over.  In reality there is a lot that a DUI lawyer can do, particularly with the help of a expert witness.

For more information, visit our webpage.  Steve Graham does DUI case in Spokane and the surrounding counties of eastern Washington.

 

Oliver Wendell Holmes once said that “detached reflection cannot be demanded in the presence of an uplifted knife.”  That is to say that people have to make split second decisions when they act in self-defense.  This is what Spokane plumber Gail Gerlach did when he saw the man stealing his Chevy Suburban turn his arm around like he was pointing something at him.

In hindsight, we now know that the man was unarmed. Washington law states “A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great personal injury, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for a homicide to be justifiable.”  It is believable that Gail Gerlach saw a threatening gesture.  Gerlach’s wife also saw a gesture from a different angle.

Under the law of Washington State, it is not Gerlach’s job to prove self-defense. The prosecutor’s job is to disprove self-defense beyond a reasonable doubt.

The police are challenging that Mr. Gerlach could have seen the driver make such a gesture. The media reported that the detective said: “I was only able to see small portions of the front seat and believe it would not have been possible to see anybody’s actions as they turned around and shifted their arm over the top of the seat. If anything would have been visible of the driver, it would simply have been the top of his head sticking up over the top of the head rest.” However, is a person turns around to shoot, “over the seat” is exactly where his hand would be pointed.

Gail Gerlach’s supporters posted a photo online of the windows look like on a similar Suburban with factory tinted windows.

Apparently there wasn’t a consensus in the prosecutor’s office to charge. The Spokesman-Review quoted the elected prosecutor as saying “One police officer and one deputy prosecutor thought that it was a murder… The others ranged in opinion from manslaughter to no charges at all.”

If you can’t get a room full of prosecutors to agree that a crime was committed, how will you get 12 jurors agree to convict a man?

It seems to me that this charge is a waste of tax payers money.

For people interested in helping Gail Gerlach, please see his Facebook Support Page. I just made a small donation.

What do you think about this case? Have prosecutors typically charged police officers when they make poor judgment calls?

I-502 and marijuana decriminalization in Washington State has had a dramatic impact on the courts system for marijuana.  But what has changed in Washington State for the simple possession of small amounts of ecstasy (MDMA), cocaine, ketamine, LSD, or psilocybin?

Arrests continue for concert goers for even a small amount of those club drugs.  The possession of MDMA, ketamine, LSD and psilocybin in any amount is a felony punishable by a standard range of 0-6 months in jail and up to a $10,000 dollar fine.  As a criminal defense lawyer who works in Grant County, I have seen jail sentences up to 90 days even for individuals with no felony priors.  After I-502 passed last November, I wondered what the summer might bring for drug arrests in Grant County (specifically at the Gorge).  The concert season this summer kicked off with the Sasquatch! Music Festival, with three days of indie rock, alternative and hip hop.  When the court opened up on Tuesday morning (after the long weekend), there were numerous arrests for possession of such drugs as MDMA, ketamine, LSD and psilocybin.  When I was there I asked some people if the police were issuing citations for using marijuana in public (in infraction under I-502) but no one reported seeing any such cases.  Since such tickets don’t bring a risk of jail time, it is less likely for a criminal defense lawyer to be involved in such cases.

The police claim to have as a priority cases of possession with intent to deliver, or delivery of a controlled substance.  However, the people selling such drugs can be hard to catch, and the jail roster is made up mostly of simple possession cases.  At the Gorge, concert goers are often detained by the staff security.  Criminal defense lawyers often see reserve officers deployed, as well as fulltime commissioner law enforcement.  If there is any silver lining, it seems that by the time the charges make it to court, the officers’ memories are so poor that they don’t recall one case from the next.  The reports on these Grant County cases seem so rushed, that criminal defense lawyers are often able to pick the cases apart.

When I talked to some people that had been arrested for possession of drugs, it almost seemed like marijuana decriminalization in Grant County freed up the police to crack down further on instances involving MDMA, ketamine, LSD and psilocybin.  Should the legislature really make it a felony to possess even small amounts of such drugs?  It seems like the passing of I-502 was not motivated by any sense of libertarianism, nor of a sense that drug abuse should be addressed as a public health issue.  Rather I-502 was passed mostly out a desire to bring in more tax revenue.

For more info on drug cases in Grant County, see: //www.grahamdefense.com/Grant-County-Criminal-Lawyer.aspx

 

Because every criminal defense lawyer likes to see his name in print…

available online: //online.wsj.com/article/SB10001424127887324031404578481223036526686.html

Northwest Justice, a legal aid program in Washington State, announced a class for individuals going through or contemplating a divorce.

Guest post by Matthew Leach, Attorney at King Law Offices | North & South Carolina

The United States Supreme Court recently ruled on a drug sniffing dog case from Florida and the steps police can take to get probable cause for a search of a vehicle.[1]  To understand this recent decision, however, let’s examine some history.

In a 2005 Supreme Court case, the Court held “that a well-trained drug dog’s sniffing of the exterior of a car during a lawful traffic stop is not a search subject to the Fourth Amendment.”[2]  This is partly based on the lower expectation of privacy that people have in their vehicles compared to, say, their homes,[3] and the increased mobility of automobiles, making the disappearance and destruction of evidence a larger concern.[4]  The Supreme Court’s approach to Fourth Amendment protections for drug sniffs is relaxed because of the lack of legitimate interest in possessing contraband (i.e., illegal drugs), and a drug sniff by a dog is being aimed only at the detection of such contraband.[5]  Regardless, the warrantless “search” by the dog must still “be carried out in a reasonable manner.”[6]

It is this “reasonable manner” of the search by a police officer relying on a drug sniffing dog that was the subject of dispute in the recent Supreme Court case.

The case dates from 2006 where a Florida officer, William Wheetley, executed a traffic stop on Clayton Harris because his license plate was expired.[7]  The officer approached the driver and, after observing a nervous demeanor and an open beer can, asked for permission to search the truck.[8]  The truck driver denied him permission to conduct the search (a “consent” search).[9]  At that point, the officer got the drug-sniffing dog, Aldo, out of his patrol car and brought him to Mr. Harris’s truck.[10]  Aldo then “alerted” to the presence of drugs on the drive side door.[11]  Based upon this alert, the officer determined he had probable cause to search the vehicle and found ingredients to manufacture methamphetamine (“200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze and a coffee filter full of iodine crystals”[12]),[13] which are not “drugs that could be sniffed.”[14]  Subsequently, “Harris was arrested and charged with possessing pseudoephedrine for use in manufacturing methamphetamine.”[15]

On appeal, Harris wanted the search tossed, claiming that the drug-sniffing dog did not give rise to probable cause to search the truck.[16]  Harris’s appeal, which was accepted by his state’s supreme court,[17] centered on the unreliability of drug-sniffing dogs.[18]  The Florida court wanted the police “to present training and certification records, field performance records, explanation of those records, and evidence concerning the dog handler’s experience and training.”[19]  The Florida court was concerned with the “growing body of evidence that dogs often make mistakes or are influenced by their handlers.”[20]

Indeed, in an interesting turn of events, the exact same officer pulled over Mr. Harris two months after the initial stop for a traffic infraction.[21]  Again, the officer deployed Aldo, who alerted to drugs in Mr. Harris’s car, again.[22]   This time, however, the officer’s search of the car turned up nothing.[23]

The Supreme Court, in a unanimous opinion authored by Justice Kagan, thought the Florida court demanded too much of police.[24]  The Court held that “courts should apply the same tests to dog sniffs they do when they look at other issues of whether police have probable cause to take an action.”[25]  This is a “totality of the circumstances” approach,[26] where the police are to consider “all the facts surrounding a dog’s alert, viewed through the lens of common sense… [and whether that] would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime… A sniff is up to snuff when it meets that test.”[27]

Defendants/Defense attorneys can still challenge a drug-sniffing dog’s search, however, by attacking the training methods of the dogs or that the certifications methods are too simple to attain.[28]

A companion case that is still to be decided by the US Supreme Court, though oral arguments have been made, centers on a drug sniffing dog’s detection at a person’s home, not automobile, and has caused greater concern for the Justices.[29]

The Fourth Amendment is an ever-evolving, complex area of American jurisprudence.  Criminal defense attorneys would be wise to stay tuned for the companion case to ensure they are best prepared in representing their clients in probable cause searches sparked by drug-sniffing dogs.  Criminal defendants would be wise to keep their criminal activities away from their automobiles.

It is unthinkable that a modern democratic state would act the way that Mississippi did in the handling of the Jeffrey Havard case.  Months ago, I published a blog on Jeffrey Havard, a wrongly convicted man currently sitting on Mississippi’s Death Row. Since then, there have been a few new discoveries that make Havard’s future a little less bleak.

If you did not read my prior blog on Havard it can be viewed here: Jeff Havard. A full description of the case and its defenses can be found there.

In 2002, an Adams county Mississippi Jury convicted Havard of capital murder of his ex-girlfriends 6-month-old daughter, Chloe Britt. In my previous blog, I explained a number of defenses that should have been used to prove the innocence of Havard, many of which were either denied by the court, or not implemented by the defense team.

According to former Supreme Court Justice Oliver Diaz, one of two Justices that ruled to throw out the case in a 2006 appeal, Havard was misrepresented by his public defender because he could not afford a second exam.

Havard was denied his own expert autopsy and forced to use the autopsy of Steven Hayne, a self reported expert in sexual assault and the main expert for the state of Mississippi for the years between 1987 and 2008.

Hayne’s practice and “expert” opinion has recently come under fire, giving Havard a small but strong fighting chance.

Between the years of 1987 and 2008 Hayne claimed that he performed 1,700 autopsies a year. 1,700 autopsies a year means that he would have had to perform 4.5 autopsies a day, seven days a week, with no vacation for 21 years straight. The National Association of Medical Examiners forbids anyone from performing more than 325 autopsies in a year.

Why this was overlooked and not accounted before is unknown.

Two cases similar to Havard’s were thrown out, because Hayne’s testimony was proved to be untrue.

Levon Brooks and Kennedy Brewer both spent more than 15 years in prison for a conviction based on Haynes testimony.

Brooks was convicted in 1990 for rape and murder of his ex-girlfriends 3-year-old daughter and Brewer was also convicted of rape and murder of his girlfriend’s 3-year-old daughter in 1995.

In both Brooks and Brewer’s trials, Hayne and forensic dentist Michael West testified that they found men’s teeth marks on the victims. However, the Innocence Project uncovered DNA evidence that proved Hayne and West were both incorrect.

Brooks and Brewer were both exonerated by a judge in 2008 because Hayne’s testimony was found to be incorrect.

Following the findings and exonerating of Brooks and Brewer, the State of Mississippi removed Hayne from his post as state pathologist. Which now strikes the attention of hundreds of other convictions that are now in jeopardy of credibility.

The clock is still ticking, Havard has been on death row for 10 years now and his execution date is steadily creeping closer and closer.

According to Diaz ,the Mississippi Justice System in the last couple years have taken steps in the right direction to fix the problems left behind by Hayne. However, it is evident that the problems lie much deeper than just what the surface entails. There could be hundreds of innocent inmates in the Mississippi Justice System that are simply victims to the malpractice of one individual pretending to play doctor.

What do you think about the Havard case?  Is there a more clear-cut case of innocence on death row today?

I wrote about dorm room searches two years ago, and I figured I might revisit this topic.  I was the guest on the It’s a Crime radio show in Los Angeles last month on AM 1050.  You can listen in here.  Here is a transcript of the show:

Announcer: Now its time for the radio page turner, about law enforcement and justice based on real cases, real crime. If you like law and order, unsolved mysteries, courtroom drama, your host Margaret McLean will keep you on the edge of your seats. She is a former prosecutor, legal thriller author, and law professor. Tune in as Margaret discusses all aspects of criminal law in sensational trials, with the help of real federal agents, undercover cops, private investigators, lawyers and even judges. All rise for your host of It’s a Crime, Margaret McLean.

M. McLean: KCAA NBC radio news, 1050 and Itsacrimeradio.com. On the first hour today we will be delving into the fourth amendment, illegal search and seizures and focusing on privacy rights on college campuses. Stay tuned to know what every parent and college student should know. I currently teach law at Boston College and it is amazing what students don’t know and what they should know about their basic rights. Defense attorney Steve Graham will be discussing the differences between a private university and a public one. We will be answering questions such as “When do the campus police need a search warrant to enter and search your dorm room?” “Do RA’s need a warrant?”  “What if I exercise my rights and demand that the police get a warrant, will they use that against me?”  “What are some of the exceptions to the warrant requirement?” Some very interesting stuff that students, trust me, really don’t know.  As you know we broadcast from Boston to L.A. and the inland empire, you can follow me on twitter @MargaretMcLean_, and Facebook page It’s a Crime Radio with Margaret McLean. Well let’s delve right into the fourth amendment.  Attorney Steve Graham is here with me, here with us live on It’s a Crime. Steve Graham is an attorney and blogger from the Pacific Northwest, he is a former elected District Attorney, and is currently a defense attorney focusing a lot of his practice on the defense of college students accused of crimes. He represents several local fraternity chapters and he provides consulting work to other attorneys who are challenging the legality of the searches of college dorm rooms. You can visit his website at grahamdefense.com, and of course I love his blog grahamlawyerblog.com. Steve, welcome to the show.

S. Graham: Thanks Margaret, it’s good to be here.

M. McLean: It’s great to have you with us. You represent a large number of college students, and I will tell everyone out there that I found you through your popular blog. I have a hundred students at Boston College, and I am always looking for new search and seizure cases particularly in the college setting to talk about, and I found your Blog very informative, and I have enjoyed chatting with you prior to the show.

S. Graham: Thanks Margaret.

Dorm Room Rights

M. McLean: Yeah and what I want to focus on… Let’s get right into the fourth amendment.  It protects us from unreasonable search and seizures. My daughter is a junior in high school; I’ll be sending her off in a year and a half so let’s talk about her fourth amendment rights on campus. I would like to start out by pointing out the differences between a public university and a private school.

S. Graham: Sure. There is that old saying that “a man’s home is his castle,” and the saying really holds true on a college campus. That dorm is a private area, it is where you live, it is where you keep your private effects and so that means you are protected by the fourth amendment against any sort of government intrusion. But again, that is government intrusion, so you know while you might be protected at UCLA or a state school, when it is a private university it is kind of in a grey area because the constitution protects us against government actions not private entities. So usually it comes down to, Margaret, that we are also protected by campus police at private universities because those police officers carry the commissions with the local city or the local state. I know that is the case with Boston College.

M. McLean: Right, now I know that Boston College and many other private universities are governed by private housing contracts which student sign when they go to school, in the beginning of school when it is busy. Are they signing away some of their constitutional rights by signing the [contract]?

Dorm Room Search Laws

S. Graham: Here is kind of how it works. A lot of these private universities they have clauses in their policies that say “If you have a dorm room with us, then they are always going to be subject to search really at our whim.  But those clauses are not upheld by courts because you do, after all, have rights to privacy whether these schools like it or not. You see that litigated really nationwide.  A current case that come to mind is the one at Santa Clara University. I think in 2006 where the court flatly rejected such a clause. Sure dormitory staff, RA’s or what-have-you, administrations can come in for safety checks you know to make sure you are not burning candles, you are not running a space heater, make sure there is not any damage.  However, if they are going into your room with the intent to investigate a potential crime, then really all bets are off and they really better have a warrant at that point.

M. McLean: Okay. Does this apply to the resident assistants as well?

S. Graham: Well it sure does. Really when it comes to searches of dorm rooms two things are really relevant: who is doing the search, and what is their intent? If their intent, even if it is an R.A., if their intent is to investigate a crime then they really need to have a warrant. But if they are just investigating loud music or maybe if there is some damage to property, or someone leaving their window open they can go in just as a landlord can. But when they start investigating marijuana, underage drinking, something like that then they really have to have a warrant, and I think the case law is pretty clear on that in just about all fifty states.

M. McLean: Okay. Alright Steve we are up against our first break so we are going to take a break and then I want to discuss a little more about the differences between a private universities and public universities. This is Margaret McLean we are talking about the fourth amendment, illegal searches on campuses and we will be right back.

M. McLean: Welcome back to It’s a Crime, I am Margaret McLean, and I am here with criminal defense attorney Steve Graham discussing the importance of knowing what your Fourth amendment rights are especially on college campuses across the country. So Steve one think I want to clear up is I believe there is a difference between the powers that RA’s, Resident Assistants, have at a public university and a private university. I tell my students that at a private university the RA’s are more powerful to actually go in and search your room, whereas on the public university side, the RA’s are considered agents of the government; therefore they should be getting a government search warrant, like going to the clerk’s office and getting a real search warrant as opposed to getting a university search warrant. Is that true?

Can Colleges Search Your Dorm?

S. Graham: How it works is that, here again. whether or not it is the state government taking the action because that is what the constitution regulates not the private universities. When you are with a private university largely you are kind of protected simply by the contract that you sign, the relationship that you have is more with one private entity to another. A lot of persons are surprised by that, they think that perhaps because they are paying big bucks for a private university maybe they have more rights, but in reality they have fewer rights and I think the courts are pretty consistent on that.

M. McLean: Okay. now some students ask me “what if they don’t cooperate?” Let’s say the campus police come to their dorm room without a warrant and they ask for evidence, for example, they ask if they can come in.   Let’s start with that that is easy. They say “can we come in sand search your room?”  What should students do if they have something illegal in that room?

S. Graham: Well they should probably say “sure let’s talk about it outside.”  We kind of teach our children growing up to be respectful and cooperative but we also need to teach them to stand up for themselves and their constitutional rights and you don’t have to let somebody in like that. You want to make it clear that you are not consenting to a search, and you also have the right to exercise your right to remain silent and that is kind of and important thing.  So often, time and time again, we see a person kind of getting intimidated. We don’t want to block the door with our foot like that kid at University in Kentucky that kind of went viral, but we do want to just make it clear we don’t consent.  “I am not agreeing to a search and I refer to speak to you outside.” That is really the way to put it I think Margaret.

M. McLean: So if you are a student you would step right outside of your dorm room into the hallway and then try to be nice to the police and co-operate with them?

S. Graham: Yeah and being real respectful, bot make any statements and say “I do not consent to a search and ask them if they have a warrant.” I think that is really what it comes down to.

M. McLean: Okay, let’s say they don’t have a warrant and they want to get into your room, you are out in the hallway, wouldn’t they be extra suspicious if you are not letting them into your room?

S. Graham: They could be. One thing to keep in mind though is if you exercise your rights to remain silent, if you exercise  your rights to require a warrant that fact cannot be used against you later on at your trial if you were to be charged with a crime because that would be an improper comment on your constitutional rights. A lot of people think that it might look suspicious if I kind of bite my tongue, clam up and plead the fifth but that really can never work against you and so that is why really every criminal defense lawyer is going to be really adamant that someone just clam up.

M. McLean: And what is the point of not letting the police officers, and again this can be campus police or the actual police, what is wrong with actually letting them in your dorm room, not to consent to search but at least to have that initial conversation?

Search of Dorm Room Laws

S. Graham: Well I think, once they kind of get their foot in the door, at that point really the whole room is in plain view and plain view is what we call in courts when an officer sees something that he or she identifies as contraband. Then, at that point, they get their foot in the door literally and they say that looks like a beer bottle cap or that looks like a little flake of marijuana on the floor and before you know it there is a warrant and then they are kind of searching your whole room. You know college is kind of a time when kids, young adults, are starting to learn to speak to other adults as adults and starting to learn about skills of learning to be assertive and so it’s a good time for these students to remember that and, do it in a polite way be respectful, say look I am not agreeing to a search and I respectfully will not let you in. Usually when police officers hear that they are a little bit surprised at someone that is kind of assertive and does know their rights and usually if they’re reaching at all they will kind of back right down.

M. McLean: Okay, I just got a text from one of my students that says: “Should you ever volunteer evidence against yourself?” and thanks for listening.

S. Graham: Yeah, you really shouldn’t. You always want to make the state prove the case against you and not really offer up any evidence against you, you would think that if… A lot of times people think that well geez, I’m going to be co-operative and just say “Okay here is a little bit of marijuana or here is a little bit of beer and it is going to do better for me” but in reality it doesn’t. You don’t want to do that, you or your parents paid a lot of money for a full semester in the dormitory and if you get kicked out you are looking for an apartment that could really hurt you. You get caught with a little marijuana and you are out too, and you may be loose eligibility for student loans under federal law. So really you want to just be, you want to; I always tell students to keep away from that stuff, don’t break the law focus on your studies, but then again if you are in position where you or your roommate has anything, any contraband in there you want to make sure you are really protecting yourself.

M. McLean: So basically you should never really volunteer evidence against yourself even if it is to your R.A. who is acting very nice who is saying don’t worry you won’t get into trouble.

S. Graham: Yeah, you sure shouldn’t because a lot of times the RA’s or the administration or the police will kind of imply that it is going to go better if you just cooperate, “if you tell us what you have” but that is kind of a ruze, it is kind of a trick and they tell you to come forward but in the end a lot of these schools have zero-tolerance for marijuana, even medical marijuana, a lot of them have limited tolerance for even alcohol consumption. You could be out the door so it is best to just not fall for that if you put it bluntly I guess.

M. McLean: What I would also like to talk about is do students have a right to privacy in their college email accounts? This comes up all the times in my class.

S. Graham: This is kind of a grey area of the law, much like when you are working at an employer a corporate employer you are given this account marym@corporatename.com and then likewise for the school you are given a university account and they usually have you sign something that says “look, you weave any sort of privacy” but I think under federal law that is pretty limited. Ii think that typically speaking they would need a warrant for something like that; it is in a grey area. A lot of times you know Margaret as an attorney it is like people email me about some sort of highly confidential legal matter they might have and I can tell it is at a company address, a company email address or college email address and I just tell them look, letís say you get a yahoo or Hotmail account if we are going to be emailing each other because really there is a limited amount of privacy that you have in those accounts really isn’t sufficient.

M. McLean: Okay, that is very interesting. Do you have any particular cases obviously we can’t talk about your specific clients, but do you have any examples for us or stories where some people have actually had a problem with their email accounts and the police where their privacy rights had been violated?

College Dorm Rights

S. Graham: Usually the police are kind of careful of that kind of thing and will usually err of the side of caution and obtain a warrant for something like that. And that is usually a little bit easier to do, so that doesn’t come up too often. A lot of times people think link they can just click delete and the email will be gone and that is just really not true, because nothing is ever really gone in an email or on a computer. It doesn’t have to be some sort of super sophisticated CSI task force in order to recover an email like that. That can be really incriminating, I have had cases at the universities up here in the northwest where people have had their emails retrieved after a search warrant and it can be very incriminating evidence. As you know as a former prosecutor Margaret there is really nothing more incriminating that convicting somebody by their own words. So if  someone is boasting about drug sales or a big party or even discussing a sexual assault allegation and it comes out “this is you, this is your own words” that can really be a nail in a coffin on a criminal case.

M. McLean: Okay, I see. Well see we are right up against our break again so what I am going to do is, again this is Margaret McLean, on It’s a Crime and we are talking about fourth amendment rights on college campuses with criminal defense attorney Steve Graham. So we will be right back after these breaks in just a moment.

M. McLean: Welcome back to It’s a Crime.  I am your host Margaret McLean, and we are here with criminal defense attorney Steve Graham to discuss what you should know about your fourth amendment rights particularly on college campuses across the country. So Steve we have a caller on line, who I am sure has a question for you, and is it Ken?

Ken: Hi hello.

S. Graham: Hi Ken.

Ken: Okay yeah, well great show. I had a question regarding fraternities, two questions actually regarding fraternities on campuses. What rights does a student have living at a fraternity with respect to either the police or the campus security coming in at any time to check a given fraternity house?

S. Graham: You really have greater rights than even a dorm room because if you think about it, when you are in a dorm room you have a contract with the school but you also are a tenant of theirs meaning they are kind of like your landlords. As you know really with an off campus apartment the landlords will always can kind of have some say-so to come in and say I want to show the apartment I want to check this or check that, I want to repair this or repair that. Really when you are in a fraternity house, and it really varies from chapter to chapter, and state to state it is different because at that point you really are no longer directly within the purview of the school and its authority. So sure, when the police come up there they have the same obligations really as a private house, meaning that they should have a warrant, they can knock on the door they can kind of look in and talk to you but really they should absolutely be getting a warrant if they intend to have any form of searches at all.

Ken: Okay. A follow-up question, thank you, given the fact that the university doesn’t have as much control over the fraternity in the last few years it seems a lot of universities have tried to ban fraternities across the country, a friend of mine got his shut down at his college. And I guess the university pushes that, so I guess what rights do the fraternities or the chapters have in maintaining their charter on campus, I mean can they fight the university or the college to maintain their charter?

S. Graham: A little bit, that is really the hammer that the universities have, is they can say look we can take away your privileges, we can do this. we can do that. A lot of schools they just flat out prohibit them you know like Harvard University and then they end up with the punch clubs that operate solely or completely out of the purview of the university. So that is really the hammer is that school can kind of attempt to ban any sort of fraternity or sorority that really doesn’t follow their rules and schools really have almost unfettered discretion on that subject.

Ken: I heard that Harvard is mentioned, but with Harvard, do they have any rights in closing down one of their punch clubs or they might not do it?

S. Graham: No they really can’t. I think that there are a lot of schools like that they don’t recognize any sort of (can’t make out) system and so they operate completely off campus and the school doesm’t have any authority over groups like that really at all.

Ken: And if they still force them to shut down, they push back, something very wrong goes on at a fraternity and in some cases there is even a death that forces the school system to shut down a fraternity.

S. Graham: Yea, they can shut down a fraternity but off campus your constitutional right of freedom of association, you can join any sort of groups you want and congregate amongst yourselves off campus, and really any state school or private school is going to be limited in policing that sort of off campus behavior.

Ken: Great. Thank you very much.

M. McLean: Thanks for the call.

S. Graham: Yeah, thanks Ken.

Ken: Bye.

M. McLean: Very interesting Steve.

S. Graham: Yeah.

M. McLean: You know what I also want to talk about, have you seen the bullying on campus, are there any cases that you have dealt with regarding bullying and of course I am also thinking about the hoax cases, the Manti Te’o case.

S. Graham: Yeah, we do see those from time to time, kind of a spillover from the concerns of bullying in our high schools go over into college. We kind of hope that when people become college students that they kind of get past that but really no they are in this post-adolescence period where all sorts of misconduct is really possible. In the college campuses a lot of it takes place in the form of hazing, and schools have really come down on that, there is really minimal tolerance. But there is always some sort of thing like that going on at any sort of university, even if it’s just kind of mild and supposedly consensual. Then that case with Manti Te’o football player you kind of see another area of judgment on his part, I guess there is still some argument over it as to what he knew exactly what he didn’t know. But then again the fundamental problem, you know Margaret, that every college campus has is that schools see that their student is making bad decisions that could harm themselves if not embarrass themselves and there is always the issue of liability for the student because the student is really the colleges are really bound to try keep their students safe. So you know these sorts of online relationships, who really knows what is going on with that sort of thing?

M. McLean: Exactly and when the university police come in and they ask to take your laptop and you have been involved in some sort of conversation whether it is on Facebook that may amount to bullying how should you respond to that, should you give up that laptop?

S. Graham: Yeah, it’s always best to refuse unless they have some form of warrant. Now you think of a warrant as in protecting your dorm room or your house but really the fourth amendment protects people, people not places and so it really protects you against any sort of unlawful search of your laptop, much like it would of your room. Boy, kids really do have private stuff private photographs all over their laptops and that is the sort of thing you really want to keep private. So you donít want to turn over anything like that over for a search for sure.

M. McLean: Okay, and what about your cellphone?

S. Graham: You know it is really the same thing because we think of a search as an officer opening up drawers or looking under your bed, that sort of search, but a search is also a digital search where they take a program called encase that every officer has really and they hook your cellphone up to it connected to a computer and all of a sudden they are looking at every text, every phone call, every photograph that you have ever made. You know, students might have pictures of themselves, pictures of their friends drinking alcohol, smoking marijuana lord only knows what is on there and all of a sudden that all becomes some exhibit in some evidence locker, so you really want to protect yourself from that sort of search for sure.

M. McLean: And what if some of my classmates, I’m in college say, what if some of my classmates give up their laptop in a consensual situation and there is incriminating evidence against me on there?

S. Graham: Yeah, that is kind of a harder question. Generally speaking that person has a right to privacy in his or her phone, his or her laptop, his or her dorm room but they don’t have a similar right to privacy in their friend’s room, in their friend’s cellphone or their friend’s laptop and under the law, as you know Margaret, that is the concept of standing and you have to have standing. You can only object to searches on your own items not that of somebody else. A lot of times people think, parents think that we are kind of in a time of permissiveness more schools and universities with respect to students, but in reality last year… I mean I think it is really goes without saying almost that there really has been a crackdown, schools are very worried about being sued and they want to really protect student safety, they want to protect against drug overdoses, they want to protect against students becoming drug addicted so they are really trying to crack down. A lot of it is really the result of cybercrime perhaps and that sort of thing but it is also a result of, you see the state kind of loosening their laws having to do with cannabis, you know Washington and Colorado have legalized marijuana and then several state have medical marijuana including of course California but then now Massachusetts too and the schools you think would be fairly tolerant of that but they really are cracking down on students and marijuana a lot more in the last few years.

M. McLean: You know Steve I want to talk a little more about Marijuana and students on university campuses. We have a quick break here so letís talk about that after the break and so this is Margaret McLean on it’s as crime we will be right back after this break.

M. McLean: Welcome back to It’s a Crime I am your host Margaret McLean and we are talking about fourth amendment rights on campus with criminal defense attorney Steve Graham. We are discussing what you really should know as a parent or a college student, I have gotten a lot of texts now from college students on my phone here and they want to know about Marijuana, that is what we just talked about before the break. One particular question is “If the R.A. sees marijuana smoke coming from underneath my door and want to come into my room, what should I do?” I love the questions I am getting.

S. Graham: I do, you know that is a super common scenario really in the Northwest probably all over and kids, young adults probably put a towel there kind of blocking the odor but then they can see the towel and they get on their hands and feet with a flashlight. The police are allowed, in most states, to go on their hands and knees and really sniff right at the bottom of the dorm room door and that is kind of the grounds for the warrant, so your R.A. goes there and knocks on the door maybe there is some marijuana smoke inside its really the same thing that you don’t want to open the door, maybe you don’t say hello, you know your answer, maybe pretend you are not there. Make them get the key, make them open the door in that respect you know rather than kind of give it up or open up the door, there is nothing in any sort of manual that says well you need to open the door. Make them come back with the key and that makes sure it is clear that it is not conceptual but this is really, really common particularly when kids grow up, go through high school these days and they see medical marijuana they think of it as any other sort of prescription drug and they get some sort of permit for their bad back or their anxiety and they come to the campus thinking that it is just like any other prescription drug and it really isn’t. Any sort of marijuana possession is illegal under federal law, even a small amount so a lot of campuses are really, really nervous about that sort of thing and even in Colorado and Washington where marijuana possession in small amounts have been decriminalized the schools are really cracking down. Usually a lot of school administrators will point to the safe and drug free schools and communities act which requires campuses to have some sort of policy prohibiting drugs that act has been around since the 90’s and schools didn’t really take it that seriously for years you know you had the University of Colorado where on April 20th every year they had ten thousand smoking marijuana openly in their quadrangle but then when cannabis becomes decriminalized all of a sudden the schools are really nervous about marijuana really taking over their college campuses. So a lot of the schools have adopted policies that say zero-tolerance, you get caught with marijuana once and you are out of the dorm, it used to be that RA’s would turn a blind eye to marijuana, it used to be that you would at least have one warning but now colleges are getting really touch on that and you know parents aren’t really happy when they find out they have spent all this money for the dorm room and then their kid gets kicked out in the middle of September.

M. McLean: Right now I always advise my student read your college housing contracts because that is where your rights are, read that part specifically about the drugs and the marijuana if you are participating in that, read the alcohol policy because that is another question I got a little text on as you were speaking Steve was the idea that you spoke on earlier that the RA can actually come and open the door with her own key if she suspects you are doing marijuana in the room. Is that the case and even in a public university?

S. Graham: Yeah, you know for a public university it is not as true but certainly for a private university and the problem is the RA goes in there and then all of a sudden you know five of ten minutes later it is the police. The police follow the RA they need to be getting a warrant but typically speaking if they smell the marijuana the RA is going to opening the door. The better practice, if I were advising RA’s, would be… well look you smell marijuana you can get campus police there in five minutes and they can smell it and you can get a search warrant it is a lot of a cleaner case, you know when a RA goes in on a public university that is when you are going to have a defense lawyer like me filing the motions trying to suppress the evidence trying to get it thrown out, fruit of the poisonous tree doctrine.

M. McLean: Right.

S. Graham: But you know you advise that your college students read the policies well a lot of times the resident assistants and the Administrators need to read the policies because they are really not, they are just kind of going in acting out of instinct and not even following their own code so really both sides need to familiarize themselves with those sorts of campus policies.

M. McLean: Exactly another question I have here relates to, let’s say the RA uses the key goes in and you hear the RA coming and you kind of put all your stuff into a drawer, is the RA allowed to search your drawers and your closet looking for the Marijuana?

S. Graham: Typically not, usually the sort of searches that RA’s are allowed to do are to make sure your windows are not open, make sure you don’t have a space heater, make sure you don’t have candles there is a lot of rules and regulations when you are living on the campus there. But if they start looking through drawers then it becomes clear that they are looking for evidence to crime and it is really not their job, itís really the job of the campus police with a warrant. Now the RA could kind of remain in the doorway to make sure you don’t hide evidence or do away with it or take it with you, through it out the window or flush it but they really just need to sit tight and let the police do their job they really shouldn’t be looking through drawers, clothes searching through your pockets that sort of thing. Itís become a little bit, particularly these western campuses where sometimes marijuana has been decriminalized it has almost become like a cat and mouse game where kids are hiding these and these $400 safes they are buying, you can go on amazon and you can look for items like shaving cream containers, computer mice that are really hidden compartments and people kind of hide their stuff in there.

M. McLean: What is the wackiest thing you have seen in your practice of law regarding this?

S. Graham: Well, I guess the craziest thing I have ever seen was, we had somebody who hollowed out a DVD player and they had marijuana kind of all wrapped up in the baggies allegedly prepared to sell so they had all their marijuana hidden in a compartment like that and then they had a safe in their dorm and they just kept like ginger ale or Pepsi in the safe to kind of throw the police off. It’s really kind of crazy and a lot of times Margaret we talk about like a little bit of marijuana, a little bit of alcohol and that might be less harmful on the scale of things but the things that colleges are worried about is look it’s not just that, some people are selling drugs on campus. People have cocaine, people have like lots and lots of club drugs, kids are overdosing, there are sexual assaults occurring so they do have a legitimate expectation in maintaining the school safety for the kids and I don’t mean to belittle that at all but sometimes as a defense lawyer I kind of have the perspective that well sometimes you make a big to deal about these sort of things when they are relatively minor but I can sympathize with their goals though certainly Margaret.

M. McLean:  Sure, now I have got to ask you this, do you feel that marijuana is kind of a gateway drug?

S. Graham: I guess I really don’t think that it is a gateway drug; it’s not something I really recommend to people. I have a son who is 21 so I can understand how campuses think about that sort of thing and sometimes I think it distracts people from living up to their full potential but, working as a prosecutor and I also used to be on the board of directors for a task force, drug task force, when I was a prosecutor and I really didnít see a whole lot of harm in it really first hand. So I guess I would have to say no on that Margaret.

M. McLean: Alright I have the opposite view, I am also a former prosecutor and I have seen it not in every case but I have seen cases where you start with marijuana and then graduate up to cocaine or meth or whatever it may be and I have seen kids die from heroin overdoses just as I’m sure you have but I am certainly it’s a struggle now as a parent to keep the kids away from it especially the young ones the 13, 14 years old they are all trying it so it is something we have to deal with as parents. Hey Steve I want to thank you very much for being a guest on my show.

S. Graham: Thank you Margaret.

M. McLean: And to everybody out there you have the best blog it is grahamlawyerblog.com I enjoy it, I enjoy reading it because it gives me ideas for the show so I would love to have you back on.

S. Graham: Yeah, thank you. It’s was good to be here, this was really fun Margaret.

M. McLean: Oh, good. Have a wonderful rest of the weekend and let me know when you have something interesting and we will have you back on.

S. Graham: Sounds good.

M. McLean: Yes, thank you Steve and this is Margaret McLean It’s a crime. We will be back right after these messages with a whole second hour or crime, we will be discussing hate crimes and white supremacy groups so hold on we will be right back.

Kirstin Blaise Lobato was convicted in October 2006 of voluntary manslaughter and sexual penetration of a corpse. However, even though there is no evidence of Lobato committing this crime (including no eyewitnesses, a more than substantial alibi, false testimonies, and 150,000 supporters that have signed and stand behind Lobato’s innocence) Lobato still remains behind bars 11 years later.

In late May 2001, Lobato was attacked by a man who tried to sexually assault her. Lobato defended herself and stabbed the man in the groin. For the next several weeks, Lobato repeated the incident to friends and family. Like many rape incidents, there was no official charged filed and follow up to the attack.

Months later, Duran Bailey was found dead in Las Vegas only miles away from where Lobato’s attacker approached her. Through third person accounts, police heard of Lobato’s attempted rape incident and quickly arrested Lobato as the main suspect in the murder.  At the time of the arrest Lobato was not informed of the circumstances, location, dates of details of the crime in which she was in custody for.

Lobato was initially offered a plea deal of three years, which she rejected because she had confidence and belief in the American Justice system.

The defense brought forth important and exculpatory evidence and alibi testimony on behalf of Lobato, clearly showing that the prosecution has little to no evidence to convict Lobato of manslaughter and penetration of a dead human body. It was made absolutely clear through evidence that Lobato was 170 miles away in her hometown of Panaca at the time of the crime. She passed a lie detector that was administered by a professional who Las Vegas prosecutors regularly use.  According to the defense, there were four identifiable crime scene fingerprints, none of which matched Kirstin’s. There was also a bloody shoe print that was found next to the body, however, according to a footprint expert that testified at the trial, it came from a U.S men’s size 9 athletic shoe.

So with all this evidence supporting the defense, how has this woman been forced to spend the last the last 11 years?  Lobato’s initial sentence was secured through a testimony of a jailhouse informant. The testimony of the informant was limited by the prosecutors and by Judge Vega. This was found to be a reversible error by the Nevada Supreme Court in 2004 and they remanded Lobato’s case back to the District Court for a new trial.

Again in 2006, at her second trial, important exculpatory evidence, alibi testimony, and DNA testing were limited. At this second trial, Police detective Thowsen falsely testified at the trial that she made up the story of the attempted rape.  The DA’s office claims to the courts, press, and the public that Lobato confessed to the murder, but there was never a confession, her statement about being a victim of a sexual assault in May 2001 was misinterpreted and presented to the jurors as a statement about the murder of Duran Bailey in July 2001.  Lobato was again charged with Involuntary Manslaughter, Deadly Weapon Enhancement and Sexual Penetration of a Dead Human Body and sentenced to 13-35 years. Lobato was given the maximum allowable sentence by Judge Verda of 35 years.

The one thing that can save Lobato from spending another decade in prison is DNA testing of 13 pieces of evidence that tested prior during the first two trials. Judge Vega has denied all new evidence including DNA testing and habeas corpus.  Lobato’s petition for habeas corpus is currently pending before the Nevada Supreme Court. It includes new evidence, affidavits, expert testimony along with evidence of witness tampering and prosecutorial misconduct.  Currently there are over 150,000 people that have shown support and signed a petition to allow DNA testing in the Lobato case.  The Innocence project, an organization that has freed hundreds of innocent people from prison through their DNA testing work, has offered to pay for all the costs to test and re-rest the 13 pieces of evidence that are in question. However, Clark Court District Attorney Stephen Wolfson has denied the allowance of the testing.

You can sign Kirstin Blaise Lobato’s petition here.  The entire case and current news on Kirstin Blaise Lobato can be viewed at her homepage Injustice Anywhere Kirstin Lobato.

Shortly after the sleeping pill Ambien (Zolpidem) came on to the market, there were reports of the drug causing strange incidents of sleep walking.   In some extreme cases, the drug was causing a phenomenon called “sleep driving.”  “Sleep driving” is recognized by the Food and Drug Administration and is defined as “driving while not fully awake after ingestion of a sedative-hypnotic product, with no memory of the event.”  This is the description many DUI lawyers hear when they have clients describe waking up in jail with no memory of the night prior. On March 14, 2007, the FDA warned that Ambien and other similar drugs can cause “complex sleep-related behaviors which may include sleep-driving, making phone calls, and preparing and eating food (while asleep).” Despite this action by FDA, courts are generally not-receptive to claims by defendants that they drove “unconsciously” or that they did not “intend” to commit DUI.  In fact, in the 2010 case of Myers v. State, a court of appeals in Georgia said that it was appropriate for a judge to specifically instruct a jury that it is not a defense that a defendant was unconscious or didn’t intend to drive drunk while under the influence of Ambien. Last year a court of appeals in People v. Mathson in California stated that Ambien ingestion would not be defense to DUI, at least if the drug were taken voluntarily.  The court seemed to leave open the idea that the defense would still be possible in instances when the person did not voluntarily take the drug, for example, when it was slipped in their drink.  The subject of Ambien DUI has not be directly addressed in Washington courts.  However, Washington DUI lawyers have taken note of the case State v. Deer in 2010 where the court held that such a black out would be a defense to other crimes.  The subject of Ambien DUIs in the news have been increasingly common.  New York DWI lawyer Eric Sachs wrote about the arrest of Kerry Kennedy in his blog recently.  Kerry Kennedy is the daughter of Robert Kennedy and was also married to the former New York Governor.