Drug Recognition Tests Called Into Question

Spokane DUI LawyerOne of the provision of I-502 (Washington’s Marijuana decriminalization statute) was to make it illegal to drive with more than 5 nanograms of THC in your blood. Officers face the problem of not really knowing if someone is impaired by THC. Marijuana is different than alcohol. Pretty much everyone can recognize when a person is impaired by alcohol, because of the odor, the slurred speak, the poor coordination.Marijuana DUI Arrest With THC, officers are trained to look for tremors, subtle changes in pupil dilation, and other factors. The Inlander magazine recently did an article about a Spokane police officer whose ability to predict the presence of 5 nanograms of marijuana was only slightly above 50%. The article sites a study by the Spokane Public Defender’s office documenting that the officer in question has requested 58 samples of blood after the subjects were arrested for DUI. 27 of those individuals arrested had no THC in their system at all or had THC in an amount less than 5 nanograms present.

This is consistent with what I have found in my practice as a defense lawyer. I can recall one case where a person was arrested for impaired driving, and the DRE swore that the defendant was high on marijuana. The officer went so far as to say that the suspect had a green tongue, and had burn marks on his lips from a hot pipe. When we received the toxicology tests 2 months later we learned that there was no THC (or carboxy THC) in the arrestee’s blood at all. Instead, the drug that was found was methadone.

Scientists at Washington State University are studying better ways for the police to test drivers for THC when the driver is detained at the side of the road. However, these tests will likely take years to develop and to be certified for use in the courts in Washington.

Supreme Court Rules on Trooper’s Testimony on HGN in DUI Jury Trial

When a police officer is deciding whether or not to arrest a driver for DUI, he usually asks the driver to perform field sobriety tests. These tests include an HGN (horizontal gaze nystagmus) test. This test measures shakiness in the eyes when one looks to the side, and police agencies believe the test indicates alcohol use. The Washington State Supreme Court ruled last week that there are limits to the test, and the police cannot base an opinion of intoxication solely on such a test.

The Spokane Court Case

A Mead, Washington man was arrested after a high speed crash for the charge of attempting to elude a police vehicle. The officer didn’t want the suspect to perform the standard walk-and-turn or the one-leg-stand test because he thought the driver may attempt to flee. The sole test that the officer asked to have performed was the HGN. The Spokane Trooper testified that he had “no doubt” that the driver was impaired. The appeals court overturned the conviction and ruled that the it was improper for the officer to give his opinion on the impairment because this was for the jury to decide, and also because the HGN test by itself is not scientifically reliable to support such an opinion. The Supreme Court affirmed this decision.

What This Means for DUI Suspects

If you are charged with DUI and you take the case to a jury trial this legal precedent provides some guidance to the court on what limits to place on tests like the HGN. The court made it clear that officers cannot testify in such a way as to give the test an “aura of scientific certainty.” The court explained that troopers should not be able to imply that the HGN can reveal that someone is intoxicated and “impaired” on alcohol when the HGN test “simply shows physical signs consistent with alcohol consumption.” A police officer can testify that “the test revealed signs consistent with alcohol consumption” and cannot imply that the HGN gives scientifically certain results.
See our prior post on refusing this test.

DUI charges under .08 in Spokane

A lot of people think that they cannot be prosecuted or charged with DUI if they register less than .08 on the breath instrument back at the police station. In fact, charges for DUI in Spokane are becoming more and more common. So lets take a minute to look at this. Under state law, a prosecuting attorney can convict on a drunk driving charge if a driver is over .08 breath alcohol, or if the driver is “affected” by the intoxicating liquor. This second avenue is referred to in the criminal courts as the “affected by” prong, and drivers are usually pretty surprised to learn the law on this subject. In years past, this second prong was largely unenforced by prosecutors, meaning if the State didn’t have a blood test or breath test result of over .08, a DUI charge would not be brought. Things have changes with more and more Spokane DUI lawyers seeing such charges.

How <.08 DUI Charges are Defended

Unlike a DUI case over .08, in a case under .08, a defense attorney will often introduce the breath reading rather than try to suppress the reading. Despite the law (as discussed above), many jurors still think that if a person is under .08 then they “passed” the BAC test. Instead of relying on the BAC test, prosecutors will try to make their case based on the FST’s or field sobriety tests. However, FST’s can be subjective. To counter this subjectivity, many times defense lawyers will seek to introduce video evidence taken from an officer’s dash cam or body cam. Occasionally there will be video of the defendant taken by the jail or sheriff’s office. This video will often show the jurors how the driver acted, and whether or not he or she had poor balance, or coordination. Many times the video footage will not be preserved for very long so it is important for a defense lawyer to request this video right away.

Tactics of Prosecuting Attorneys

In .08 DUI cases, a prosecutor will often submit evidence of retrograde extrapolation. In other words the prosecutor will argue that the driver could very well have been .079 when he was at the police station, but was actually much higher an hour earlier when he was pulled over. Most scientists would say that an average human body will burn off about .015 alcohol every hour. If the breath reading was .079, the prosecutors would argue for a conviction by explaining that the driver could have been .084 an hour prior.

New DUI Laws Take Effect

Minor-operating-vehicle-of-02We have received a lot of calls this year about the new Washington DUI laws that pertain to conditions of release pending trial. When a DUI defendant appears in court, he or she will be ordered by the judge to follow certain conditions until the charge is resolved. Historically, these conditions have sometimes include the posting of bail, an order not to consume alcohol, and an order to stay out of places that serve alcohol for consumption on the premises. However, under the new Washington laws, if a person has a prior conviction for an alcohol related offense, he or she will be ordered by the judge to install an ignition interlock device on his or her car as a condition of release.  The court may also order a 24/7 sobriety monitoring program as a condition of release.  This monitoring program includes urinalysis testing to make sure that a person is not drinking any alcohol.  Various programs are not being set up throughout Spokane to address this need.

Fighting a DUI in Spokane

A lot people arrested wonder what a DUI lawyer can do to help them. “I blew over .08, can we really fight this?” People need to understand three important facts:

  • The breath instrument is not accurate.
  • The police must follow technical rules in DUI cases.
  • The prosecuting attorneys make compromises to lessen their caseload (particularly for 1st time offenders).
  • A DUI lawyer is a full-time commitment to learning the science behind the breath instrument, and the technical requirements involved with the breath test.

There are a number of different factors that can affect the accuracy of the breath instrument, including:

  • Breathing patterns
  • Elevate body temperature (fever)
  • A diabetic condition
  • Working in proximity to paint thinners / solvents
  • Chewing tobacco, mouth jewelry, and dentures
  • Increase in red blood cells (hematocrit)
  • Mouth alcohol from belching or partial regurgitation
  • Our firm has won DUI cases based on these factors, and we have hired renowned scientific experts to testify in court.

If you or your loved one is facing a DUI allegation, you deserve top representation to defend the case.

Washington Struggles to Make Sense of New Marijuana Driving Rules

Free DUI Consulatation Spokane WashingtonWhen most people think of I-502 they think of the decriminalization of marijuana possession. However, part of the new law also prohibits driving a motor vehicle when a person has over 5 nanograms of THC in their system. It is very difficult to tell if a person is under the influence of marijuana. This has lead to considerable guess work on the part of law enforcement when it comes to making an arrest. Criminal defense lawyers are challenging such arrests. Much of the discussion surrounds the procedures used by a police officer for determining if a person is impaired by marijuana. Unlike with alcohol intoxication, the appearance of a “stoned” driver is not widely known.

Another important part of the new law is that there is no exception to the 5 nanogram limit for medical patients using marijuana. This provision is unpopular for many medical patients who feel that due to their tolerance level, they can safely drive with 5 nanograms of THC in their blood. A difficult part of the new law is that a user of marijuana never has a good way of knowing how high their THC level is. This is in contrast with alcohol, where charts are available for predicting blood alcohol levels based on body weight and alcohol intake.