A Failure To Respect Driver’s And Citizen Rights Is Unacceptable And A Serious Violation.
What ever Happened To Respect And Manners?
I have viewed this video on several different sights, and suffice it to say that it has gone viral. I have not been able to confirm the authenticity of the video, but it appears to be an officer’s dash camera and depending on the state laws in the Officer’s jurisdiction, would be subject to public disclosure. It sounds as though the officer mentions “Charleston” and so South Carolina might be a good guess.
Even if the video is a “dramatization” the point is well made – officers can get very offended when citizens exercise their rights. Think of the difficulty you might have in telling an officer, in full uniform with pepper spray, badge and sidearm, that he can only search your vehicle, house, backpack, etc. if he has a warrant. That would be uncomfortable, at best. But, why?
Isn’t an officer a civil servant who is to embody the “protect and serve” mantra of our civil police forces? These are public employees who literally, and philosophically, work for us, the people. Why are we afraid? Why can they exercise such unfettered authority and aggression? Why do we need a video before we actual believe this abuse of power and discretionary power exists?
As a practical matter, one might simply answer that people today, not just law enforcement officers, have lost their manners. We’ve certainly all experienced attitude and/or rude service from someone we are paying to provide a service or are buying merchandise from. Sure, people have bad days, but when it comes to police officers, a bad is simply not an excuse. That we have lost our manners is not an acceptable excuse either. We cannot simply choose to stop obeying the Sheriff or Washington State Patrol because they are not polite.
The Department of Justice just concluded an investigation into the Seattle Police Department’s use of force practices and policies. In short, the federal DOJ concluded that the Seattle Police engaged in a pattern of excessive force in more than half the time during arrests! Certainly the politics, methods used to make this determination, etc. could be argued for hours; however, it remains clear that something is amiss with those tasked with actually protecting our constitutions and individual rights. For everyone’s sake, I hope that Seattle is not an indicative of how other law enforcement agencies are operated – hopefully they are the exception and not the rule. But given this video, perhaps Seattle is the norm?
As a defense attorney defending those accused of alcohol and drug related driving crimes such as Driving Under the Influence Of Alcohol/Drugs (DUI), Physical Control, Minor Operating After Consuming Alcohol, Minor in Possession (MIP), or Unlawful Possession of Marijuana, I have reviewed a number of video and audio recordings like the one here. While I have never observed an officer as rude as the one in the video, I have certainly seen very aggressive and apparent adverse reactions when citizens have exercised their rights. I certainly understand the need for officers to make safety their number one priority, but retaliation for exercising one’s rights is unacceptable in a free society. Furthermore, employing the use of a Tazer because it is easier than using social skills or training to avoid the use of physical force, is also unacceptable.
Why Isn’t There Always A Video Recording Of A Traffic Stop And Arrest?
The video here captures an officer having a meltdown and verbally abusing a citizen who politely declines an invitation to search his constitutionally protected vehicle unless the officer provides a search warrant. The irony of the situation is that police guilds, sheriffs, and law enforcement in general tend to resist the transparency, and actual safety, that a camera affords. I believe this is because the risk of the above video being shown to the public outweighs the benefits of government transparency in the minds of law enforcement.
I have asked prosecutors and law enforcement officers why only a very select few Washington State Patrol DUI investigations are captured by video. The canned answer: it a budgetary problem. Is this true? Or is this a pre-textual excuse to avoid actual video and audio evidence of an event in order that a Trooper or Deputy or Officer’s testimony and report are the bulk of evidence of an event. I argue that it is certainly the latter and I believe this because of personal experience – in court, providing live sworn testimony an officer testified that he stopped a client of mine for failure to use a signal. When asked if he was “sure,” or if he wanted to modify his testimony he declined. So I played the video of the stop, a video that showed my clients car actually using a signal. Then the officer makes contact and does NOT tell the person why he stopped her. While the officer confirmed the video was authentic, he continued to state, under oath that the car was stopped for failure to signal! Why? Simply because that is what he wrote in his report. I am sad to say that this officer no longer has a video and has risen to the level in his agency of that of Trainer of new cadets. It is for these reasons, I wish every officer had a video.
Ask nearly any criminal defense attorney defending traffic related crimes such as Driving Under the Influence, Reckless Driving, or Negligent Driving if they would prefer that the investigation and arrest of their client to be captured on video and the overwhelming answer is YES!
Video evidence removes the guesswork from an incident – was the person actually weaving in their lane? Yes, here’s the video of such driving OR no, there is no evidence of the fact that the officer stopped for a actual violation and therefore, the driver was illegally and unlawfully seized - a serious and flagrant violation of the State and Federal Constitutions. The camera capturesmore than just visual as the technology employs a lapel microphone and bot officer and driver’s voices are clearly captures. So with respect to the questions of “Did driver really stutter and slur all of her words?” “Was there an admission during the roadside tests that “I cant do these sober?” Once again, here’s the audio or no, the officer seems to have difficulty with his hearing. The list of information goes on, and I am sure you get the picture. More importantly is the recorded administration and performance of roadside sobriety tests. A violation of National Standards that each officer swears s/he is trained under renders the tests invalid, but officer’s rarely say they do not do them correctly, when in fact, their recitation of the standards is rarely correct. Once again, the utility of the video cannot be overstated.
From a citizens perspective it is difficult to believe that budgetary constraints are really the problem. The police routinely photograph accident scenes, and unfortunately, I often see law enforcement officers talking on cellular phones while driving in disobedience of the law they swear to enforce. As we all know there are very few cell phones without video/audio recording capabilities. This technology is simply not very expensive any longer. Add to this that all police officers I have interacted with have in-car computers allowing them to remotely access a person’s criminal and driving histories – this technology is certainly more complex than a video camera.
The strength or weakness of cases would no longer hinge on the accuracy of Washington State Patrol Trooper or County Sheriff testimony of an event that often occurs more than year before the case can proceed to trial. A lawful stop would be evident – no motions hearings with law enforcement officers, prosecutors, clerks, bailiffs and judges getting paid and/or overtime. A lawful arrest? See video. Expensive trials? See the video. And so on.
Is Officer Grumpy The Canary In The Coal Mine?
Aside from the practical disappointment of the video, there are more fundamental philosophical problems evidenced here. Without boring the reader or disappointing my college professors, I will talk about this failure in the context of social contract theory.
The social contract is one of the fundamental ideas our great democracy was founded, and has succeeded, upon. The origins of the social contract can be found in Plato’s Republic and are described by the character Glaucon. Basically, the idea is that the people of a society must group together and create a government in order to keep the desire and interests of the individual in check. This idea was forwarded in western political thought by Thomas Hobbes in Leviathan and later by John Locke and Jean-Jacques Rousseau in their respective writings. Suffice it to say the philosophies of Locke and Rousseau were monumental in the creation of western republics, namely in the French and American revolutions.
Boiled down, the social contract provides the government may wield power, necessarily the monopoly of force, against its citizens in order to sustain and enforce order amongst the people. The people submit to this power, and give up some freedoms and agree to behave in certain ways (or face punishment). In our society we permit the police to patrol our streets, stop our vehicles when we fail to follow the rules, and to arrest us when we step out of line. We also submit to government presence in our lives in the name of safety and order, e.g. the T.S.A. Our government is also allowed to incarcerate us, or remove us from society, if it is proven that we broke the rules. However, and as we all know, these powers come with very strict rules the government must follow.
The Bill of Rights, or the first ten amendments to the United States Constitution, is a very clear example of the rules the government must follow as part of their obligation in the social contract. As a criminal defense attorney, the fourth amendment of the US Constitution is of the utmost importance:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
As every officer knows, a warrant is required in order to search a person’s effects – in the case of the video a warrant is required to search the person’s car. Of course there are exceptions to the Warrant Requirement that have been created through the court system; however, it is clear that no exception applied here. Most recently, the United States Supreme Court reinforced the warrant requirement in a case where one was authorized but the police responsible for executing it failed to do so despite it being spelled out in black and white letters on the page.
In this video here, what we saw was a citizen who needed to exercise his rights because the officer did not respect his right to be secure from intrusion. Would this have happened without the officer knowing his dashboard camera was rolling? Would the officer have created his own exception and ordered the driver from the vehicle in order to search through the driver’s belongings? How many times does this scenario play out every day on our roads? Every month? Every year?
It is clear that your individual rights can be difficult to protect. If you need an advocate and a voice for your individual rights I am here to help. Standing up to a police officer who fails to abide by the social contract and to respect your rights can be a difficult task. It can often be met with force, rudeness, or worse, an arrest with very little and/or questionable proof. A DUI prosecution has serious punishment and consequences and in almost every case it comes down to the “word” of the officer. While many officer’s are honest and forthright, if even one officer bends the rules and an innocent person is sent to jail, lost their driver’s license and livelihood, a video would have prevent all that, then that is one instance to many. However, the crime DUI is “unpopular and thus, the need to expose the prosecutorial problems of this crime is a low priority.
We certainly do not want Big Brother to watch all of us all of the time, but perhaps Big Brother could at least mount a video/audio camera in all the police vehicles so that this scenario can be remedied each and every time it occurs.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success due to specific and focused DUI training. Confronting all witness and having the knowledge and skill to expose the limitations and biases of their proffered evidence is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration, and this is especially true when a DUI prosecution is based upon officer “observations” during unfair tests.
If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands. | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
Standardized Field Sobriety Tests: Voluntary, Unfair, And Designed For Trickery.
In 2006 I attended the 24 hour course that all law enforcement officer’s attend to teach them how to “Detect DUI’s.” The training was invaluable. I have used it dozens of times to demystify and deconstruct the process for clients and juries alike.
This month I attended the full course again. A refresher course would have sufficed, or perhaps I could have done the instructor course thus allowing me to teach others, but I choose to refresh with the entire course. As I spend my 24 hours immersed in the curriculum I saw the course differently the second time around for what it really was. A course designed upon some generic studies that “appear” to validate the roadside tests, but really it is a course designed to instill into the minds of law enforcement that almost any behavior is indicative of a DUI. In fact, there is a published paper on the issue that concludes these tests are designed for failure.
The course breaks down as follows: observation of vehicle in motion, personal contact and pre-arrest screening. From the moment an officer sees a vehicle he is trained to believe it is a DUI, he is trained to understand that there are 25 “clues” of driving that are said to reliably indicate that the driver is DUI. They are told that the accuracy of these driving clues is somewhere between 50-100 percent. The reality is, however, these are simply lazy driving habits that person does perfectly sober, or when distracted by a cell phone, radio, or passengers. As a result the officer is trained to prejudice his mind, his observations, and interactions with the driver rather make objective observations that lead to a conclusion that is not already predisposed. Despite the clear objectives of the course that state this phase is about answering whether “the vehicle should be stopped,” the training clearly encourages a stop for any reason at all, with a predisposition to believe the officer is dealing with a DUI.
The officer is trained to make contact and make decision based upon contact. The training goal at this stage is based upon what is seen, heard, and smelled “do I have the driver exit the vehicle?” What is said by the driver, how the driver acts, and all other variables are added to the mix, but what s/he Sees, Smells, and Hears, is what they are to rely upon. Guess what?; Almost everything said when coupled with the admission to drinking or the odor of alcohol is labeled as a reliable clue of “possible intoxication. However, the training emphasis minimization of what was done right and only focusing on what was done wrong in the officer’s opinion, because the Detection has but only a singular goal in mind; DUI arrest based upon less than reliable facts. Officers are trained to prey upon a driver’s nervousness and deference to their apparent authority. Upon contact the officer is trained to confuse, distract, and in essence “bully” a driver; the officer is trained to ask simple but intentionally distracting questions: questions by the way that a Washington driver is under no obligation to answer. Training begins seeking the driver’s typical papers that are not always easily found, while the driver searches the training encourages officers to interrupt and distract a driver. For instance, the materials specifically directs an officer to ask odd questions during one task, to start another, and yet another, never really caring what the answer is, but only to establish confusion, to be able to point to facts that they can rely on to justify an exit order. Funny thing is, officer’s will often repeat the same question and expect to get a different answer, yet, when a person repeats the answer, the observation factored into their justification for exit, or arrest is “repetitive speech!” This all plays into the course objective of answering the roadside question presented of “should I have the driver exit,” yet at the training to this point focuses on issues that lead up to this goal, as well as the next.
By the time the driver is out of the car, the third phase sums it all up, as it is called “Pre-Arrest Screening” Really? Yes, really, the phase itself implies the inevitable just like the training as a whole. Pre-Arrest screening is the stage of Standardized Sobriety Tests that are in line with the training curriculum, confuse the mind and place a person in the most unbalanced positions where natural reactions become clues to base an arrest upon and in cases where the breath test is under the legal limit or refused, have the state prosecute a person for having failed these tests. Furthermore, the tests are not to be administered upon certain people (over age 65, or 50 lbs overweight), and for those that have some actual physical disability (hip arthritis, injury, inner ear condition, etc.) the officer is trained to assure the person that the issue will be “taken into consideration.” The problem is this: there is no training that teaches or even addresses what consideration can or should be made. As result the officer’s are trained to lie to the subject and count clues that when totaled tell them to arrest, but without any criteria to separate the clues due to physical injury/impairment from that of possible alcohol impairment.
The tests themselves conceptually are not that hard, but the reality is it takes students of the tests 16 of the 24 hour course to learn how to administer them and also learn the tricks they don’t teach the driver to make the tests easier; easier to demonstrate for a subject and jury. The officer may need to demonstrate the tests in court, and failing them in front of a jury would not be the type of “convincing” evidence the course speaks to. As a result, they are taught some tricks to avoid such embarrassment. I have discussed these tests in detail on my site but a refresher is indeed overdue.
Horizontal Gaze Nystagmus (HGN)
Otherwise known as the eye test, this is a the only test that does not require some actual physical agility, and while the test requires a subject to follow a pen with their eyes, the test can be challenging as the sanding position is feet together and hands at the sides and the person’s gaze to set look up and follow a moving visible point. Anyone who has stood at heights, the surest way to fall down is look up and the passing sky will cause you to lose your balance. The HGN test is typically done at night, and is relatively easy as all a driver needs to do is to follow a pen. However, the training has the focus point of your eyes that a driver is to follow “slightly” above eye level thereby forcing you to look up. The test is said to be accurate, but the practical reality is, it does only one thing: confirms that the person has consumed alcohol. Student of the course are taught a formula, where the variable plugged into the formula is nothing more than a guess.
The Walk And Turn (WAT)
The WAT instructions are intensive and “wordy” and they are intense and sound straight forward, but they are designed to sound so. First if there is no designated line available like those painted in a parking lot, the person is told to “imagine” a line and the told to place their left foot on the line that does not exist, and then place their right foot in front of the left in the same “line” touching heel to toe. Then place your arms and hands at their sides and to NOT move from this position, and to not start the test until told to do. The instructions take about 30 seconds if done properly and slowly. They are as follows: When I tell you to start, walk down the line (real or imaginary) taking 9 heel-to-toe steps, turn and take 9 heel-to-toe steps back. The officer then shows how to take these steps, and then is also required to demonstrate the turn while verbalizing the instructions. When you get to the 9th step, leave your front foot planted on the line and take a series of small steps as you turn around and then begin walking back down the line touching heel-to-toe. As you are walking keep your hands at your side, look down at your feet and count each step out loud. Once you begin this test do not stop waling until you are done this test. Do you understand? When I tell you to begin count your first step as 1. You may begin.
As you sit and read this feel free to assume the heel to toe position and see how long you can stand there while the instructions are given (the officer can stand in this position longer than most because he practices this test, and is taught that a slight shifting and relaxing of the legs allows good balance control). Questions are permitted but they are answered with the same strict language originally given. In essence a driver is told to walk in a manner that produces a natural reaction to lift arms, walk slowly such that balance is impaired from nothing more than the test requirements. Furthermore, when you read the instructions for the final test it is clear to see that the natural reaction of lifting one’s arms is warned about 3 times and this test it is mentioned 1 time. The officer is on the lookout for 8 possible things a person may do “wrong.” If the person steps out of the instruction stance they get a clue/demerit, if the officer uses halting speech during the instructions it implies permission to proceed, and then the clue is “starts to soon.” The test is not yet even begun, but 2 clues of a possible 8 to look for gives the officer the threshold point to consider this test not passed. The remaining clues are, stops walking, steps off line, misses heel to toe (more than ½ inch), raises arms (more than 6inches), improper turn, and improper number of steps. The math on this test is simple, a person takes 18 steps and thus has 18 opportunities to get a possible 6 remaining clues (assuming they stood properly during instructions). 18 x 6 = 108 opportunities to do something wrong. Assuming the person is wearing flip flops during the test and therefore does not properly touch heel to toe on 1 step, and when that happens their balance is momentarily thrown and they raise their arms more than 6 inches (6 1/4 is too much). They now have 2 clues and have failed the test, despite the fact that they did 106 of 108 things correct and therefore scored 98%! When have you ever taken a test where your were told that that anything less than 99% compliance meant you failed? In fact, the necessary score to learn that deems a student proficient and competent in these “sobriety tests” 80%! Enough said about this unfair test,
One Leg Stand (OLS)
The OLS, is a test where the officer instructs driver to stand on one leg, not because it has anything to do with driving, or even the counting they require, but because standing on one leg is rarely something anyone can do for 30 seconds without violating the criteria. This is also another test where the officer does not share a trick with the driver (nor is this information shared with a jury. Remember, this is the final phase called “pre-arrest screening.” The training and the goal objective makes it very clear that the screening is just a formality for the inevitable arrest, so why would an officer share the trick with anyone. Again, being overweight or over the age of 65 precludes this test from being offered, and if there are any injuries or illness they will NOT be considered despite the officer’s assurances because such training for these does NOT exist. The One Leg Stand is instructed as followed: Stand with your feet together and hands and arms at your side. Remain in this position until I tell you to start. Do you understand? When I tell you to start, I want you to lift one leg, either leg, raising your foot off the ground approximately 6 inches and keep your foot parallel to the ground (the officer then demonstrates). You must keep both your legs straight during the test and your arms at your side. While maintaining this position, I want you count out loud like this (demo one-thousand and one, one-thousand and tw0, one thousand and three, etc.). Your arms must remain at your sides at all times and you must watch your raised foot during the test. Do you understand? The test may begin. The test is timed and the driver is expected to stand for 30 seconds with one foot off the ground counting out loud. At no point during the test does the officer share the fact with the driver, nor the jury, nor the judge, that if you bend the knee of the leg stood upon balancing is much easier. The things the officer grades a drive on is whether they sway, they lift their arms, put the foot down, or hop, in an effort to keep balance. Again, none of these things are likely to happen if the knee is slightly bent. If any 2 of these 4 things is seen, the test is considered not passed, despite a 50% completion.
This third and final test completes the “Pre-Arrest Screening.” The only person who decides what is seen and marked as clue is the officer, and since he is screening you for an arrest you can bet he will see something. In every DUI trial I have ever conducted it is inevitable that the officer testifies that he administers these tests hundreds, if not thousands of times and not everyone he “screens” with these tests is arrested. In my opinion and experience that is simply not true. If it were true, I would not regularly represent people who provide a breath sample of less than .08, and currently, as low as .04! The breath sample after the fact is proof positive that these tests are designed for failure, these tests are a very effective tool to achieve their purpose: “Pre-Arrest Screening.
In Washington these tests are considered a search; therefore they require a warrant to achieve such a search, or the driver’s permission to conduct this search. Furthermore, they are voluntary. Voluntary means that there are no consequences to refusing to volunteer. However, in a suspected DUI stop the refusal to do the tests leads to an immediate arrest. A decision to do the tests leads to the same result. In my opinion, these tests should be politely declined and then a driver should brace themselves for an arrest.
As it can be seen, there is a specific philosophy to these tests, and to the untrained observer or even a jury member, the officer will present them in a scientific manner, and in a manner of fairness. Unless your defense attorney has gone through the course, or even been qualified as an instructor of the course, the problems with the test, the unfairness of the tests, and their hidden design objectives will not be exposed.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success due to specific and focused DUI training. Confronting all witness and having the knowledge and skill to expose the limitations and biases of their proffered evidence is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration, and this is especially true when a DUI prosecution is based upon officer “observations” during unfair tests. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands. | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
Jonathan Rands Completes Annual DUI Defense Advanced Training To Ensure Fair Trial And Use Of Best Evidence.
Late this past summer as well as last month I attended 2 annual 3 day seminars and conference dedicated to trial skills and techniques, as well as advanced understanding and challenging various types of advanced evidence issues in DUI cases.
The first of these two was presented by The National College Of DUI Defense, an organization I have been a General Member of since 2005. The conference was held at Harvard Law School and keynote speaker was F.Lee. Bailey. College General Members represent the most experienced DUI defense attorneys in the country and are the backbone of the college—capable, experienced attorneys who dedicate a portion of their practice to the defense of DUI cases throughout the country. Training always embraces the most innovative and creative methods of DUI defense as well as polishing the corner stone of trial work like cross examination.
The second seminar was and advance evidence seminar. The previous year I attended this same conference, but also lead a specialized breakout session on roadside sobriety tests. These training session are important because as a DUI defense attorney, my clients freedom and driving privilege (to name only 2) depends on my skills and knowledge that are accumulated and practiced to the point where they are instinct and second nature. Spending time with other attorneys from around the nation who have likewise dedicated their legal careers and practices to the defense of citizens accused of DUI creates a scholastic environment where we are all dedicated to the same cause, and share our success and failure in the courtroom. Believe it or not, defense attorneys, secure less Not Guilty verdicts than Guilty verdicts, but it is usually the cases we fight hard and lose that are our best teaching aids.
This annual conference allows a lawyer student to choose their own schedule of lectures and breakout sessions so that the lawyer can sharpen their skills, or gain a greater understanding of procedures, protocols, and highly technical areas of science that DUI prosecutions are steeped in. The program is also designed to allow DUI defense lawyers to practice in front of other lawyers and thereby receive constructive criticism and share ideas and concepts that enhance the lawyers skill set.
At this years program I choose to revisit blood testing and the Drug Recognition Evaluation (DRE) protocol for Drug based DUI prosecutions.
The science of blood testing is “regulated” by national scientific standards, but even so, one should never under estimate the power of human error and the fallibility of machines that are programmed by the human hand. Blood testing uses Headspace Gas Chromatography. This is a type of testing where a vial of blood is shaken and mixed for a period of time and then the blood itself is NOT actually tested. Rather, what is tested is the airspace above the blood level (the “Headspace”) as it is sealed in a “vacutainer” tube. The tube is a vacuum sealed space with suction helping to fill the tube from the subjects body when blood is drawn. To analyze and test the head space above the blood after it has been shaken, the machine doing the analysis injects a small needle into the top of the soft rubber tube (stopper) and a small bit of gas is sucked out and then ran through a machine. The gas substance is injected into another know gas and then forced to travel through a tubular line where at the end of this journey the substance is quickly burned up in a actual flame. It is this end process that results in the analysis of the substance and the alcohol concentration.
This is a very rudimentary description of the process, but suffice it say, most do not understand that the blood content itself is NEVER actually tested. Furthermore, many do not realize that the machine is used to test all sorts of other fluids and compounds and the cross contamination potential is huge. Add to that fact that the machine is an automated one and most times the analysis is done without human oversight. As a result of these and other issues, a complete understanding of the process is necessary to adequately challenge, not only the end result, but the process itself, because what is generated is a number. What is presented is nothing more than a number to which the prosecution points to as guilt beyond a reasonable doubt. However, in Washington State, and most other States, the accuracy and the reliability of that final number is always a critical issues that must be addressed in arriving at a final decision.
While this overview is not intended to be comprehensive, but instead an brief review of a complicated process fraught with potential error and to show that the net result of spending time learning from other attorney’s who excel in this and other scientific areas where it intersects with the law, benefits not only future clients, but helps a defense attorney explain to a jury the limitations of the testing utilized in any given case.
The difference between exposing error by pulling back the curtain on pseudo-scientific, and unreliable evidence can mean the difference between lockup or liberty. While this may seem dramatic, consider how many recent cases there have been where legitimate science has exonerated previously convicted persons who were convicted by the use of evidence that was of poor quality, and was either misunderstood, or presented as infallible, and was not challenged by an advocate with adequate knowledge? The fact that the charge of DUI is “unpopular” is no reason to allow less than adequate evidence to untested, unscrutinized, and unchallenged if it fails to be collected and analyzed properly.
The other practice area i choose to spend more time on was the Drug Recognition Program, or DRE. This is an area of law that is NOT based upon science, NOR supported by rigorous peer reviewed research, NOR endorsed by any agencies other than the those law enforcement agencies that promote the circular reasoning of: “the program works because we say it works.”
While I have previously completed a 16 hour course on the DRE program overview, it had been a while since I represented a citizen accused of a Drug-DUI, so a close review of the materials presented, and the companion workshops where a critique of courtroom skills was done was a welcome review and challenge.
The DRE program is a book unto itself and a short blog will not adequately capture the program, but from a brief overview perspective, the program starts with ruling out alcohol suspected impairment and then runs a subject through a series of “sobriety” tests that are not related to drug impairment. This entails, a physical examination that requires monitoring of blood pressure, physical inspection of the subjects arms, a dark room examination, and a custodial interrogation of the person that usually leads to a disclosure of a substance the person previously ingested. Final steps are the rendering and recording of an officer’s opinion of what category of drug the person ingested as well as the actual drug the officer suspects. For example, category could be “Cannabis,” and actual drug being “Marijuana.” Guess what?- The officer’s typically render an opinion that the suspected substance ingested is the same as that confessed to! Brilliant detective work! The final step in the process is the drawing of a subjects blood and an analysis of the blood as described above.
This is not the whole procedure, but the suffice it to say, it is the “meat and potatoes” of the program. Pulling back the curtain on false assumptions, coercive procedures, and the close examination of the blood analysis itself is critical and exactly why rigorous training and experiences in these cases is paramount to be a successful DUI defense attorney.
Recently, two newsworthy and related events have come to pass; First – Amanda Knox verdict was over turned due to a showing that the investigation was less than adequate, in fact scientific evidence was processed incorrectly and failed to support the allegations; Second- the Seattle Times reported on unlawful and abusive Police Behavior, with respect to preservation of exculpatory evidence, failure to turn over such evidence, destruction of this evidence,and a denial that it even exits!
These may be extreme examples, the fact of the matter remains that they gained notoriety because the evidence was challenged, because the defense lawyers dared to pull back the curtain and say, “look at this with a critical eye!” We live in a country where proof beyond a reasonable doubt means something, but all to often jurors, judges, and prosecutors settle for what they think is simply “good enough” as a result of the type of charge the accused person is facing. If defense attorneys fail to to educate and then use that education to examine the evidence with the legal tools provided by the Constitution and State Court rules then they have failed their client, the system which requires them to be critical, and their oath as a defense attorney.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. Confronting all witness and exposing the limitations of their proffered evidence is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration, or simply based on officer observations. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands. | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
