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.
DUI Conviction Mandatory Breath Test Fee Increased To 200.00. Ever Wonder Where The Money Goes?
Until recently, the fine for a person who is convicted of a DUI, or crime reduced from DUI were all required to pay 125.00; traditionally this is called the “Breath Test” Fee. This fee is assessed regardless of whether a person actually provided a sample, or refused the test as they are statutorily permitted to do. Upon conviction, when fees and fines for the crime, regardless of whether it was reduced, were all totaled it came to $866.00 for a first offense under .15 breath sample, and $1121.00 for a first offense over .15 breath sample or a test refusal. Probation fees are not set by statute and are charged monthly depending on the level of supervision and agency policy.
As of July 22, 2011, the fines and fee for the conviction have increased as a result of the breath test fee increasing. The 125.00 breath test fee has been increased by $75.00 per test. As a result of this increase the former totals of $866.00 and $1121.00 are now $941.00 and $1196.00. Traditionally, this fee is not able to be waived, but as an added change, under special circumstances and upon a verified petition by the person assessed the fee, the court may suspend payment of all or part of the fee if it finds that the person does not have the ability to pay.
So the fee is increased, but have you ever wondered what happens to these DUI fines and fees? According to the statute, this breath test fee is for the purpose of funding the Washington State Toxicology Laboratory and the Washington State Patrol grants and activities to increase the conviction rate and decrease the incidence of persons driving under the influence of alcohol or drugs. The logic of this will be discussed shortly, but here is the breakdown of this fee use.
According to the statute, the fee assessed shall be collected by the clerk of the court and, subject to another statute (RCW 46. 61. 5054 [4]), $175.00 of the breath test fee MUST be distributed as follows:
Forty percent ($70.00) shall be subject to distribution under the authority of following statutes: RCW 3.46.120 (Repealed), RCW 3.50.100 (where to deposit and interest earned), RCW 35.20.220 (Powers and Duties of Chief Court Clerk), RCW 3.62.020 (Forfeiture Money From District Courts), RCW 3.62.040 (Forfeiture Money From City Cases), or RCW 10.82.070 (Superior Court Collections).
The remainder of the fee ($105.00) shall be forwarded to the state treasurer who shall, deposit: Fifteen percent ($15.75) in the death investigations’ account to be used solely for funding the state toxicology laboratory blood or breath testing programs; and eighty-five percent ($89.25) in the state patrol highway account to be used solely for funding activities to increase the conviction rate and decrease the incidence of persons driving under the influence of alcohol or drugs.
The remaining 25.00 from the original 200.00 ($175.00 MUST be used as described above), or the extra 25.00 that takes the prior 175.00 fee to 200.00 must be distributed to the highway safety account to be used solely for funding Washington traffic safety commission grants to reduce statewide collisions caused by persons driving under the influence of alcohol or drugs. Grants awarded under this subsection may be for projects that encourage collaboration with other community, governmental, and private organizations, and that utilize innovative approaches based on best practices or proven strategies supported by research or rigorous evaluation.
After reading the statue closely, it now begs the question of: what are these innovative approaches to reduce “crashes?” Keep in mind the statute by their very plain language do not seek to reduce the incidences of drunk driving, rather they seek to reduce crashes “caused” by drunk driving. The problem as I see it, however, is that the vast majority of car crashes ARE NOT CAUSED by drunk driving. While many believe that the majority of crashes are caused by alcohol or drug impaired driving this is not the case. Like everything else, “sensationalizing” or constant headlines reporting leads many to the conclusion that all crashes are alcohol related. Consider the 2008 statistics compiled by National Highway Traffic Safety Administration (NHTSA):
In 2008, the NHTSA discovered that 60 percent of fatal crashes were single-vehicle crashes, and from that statistic, 71 percent of those crashes were run-off-road crashes. A run-off-road crash is where the vehicle runs off the road and crashes into an object. What I found that was interesting was that 95 percent of these accidents were due to driver errors. Overcompensating the steering wheel when turning, poor directional control, and driving too fast for the conditions; these are the factors that make up that 95 percent. What this means in simple terms is Americans are horrible drivers. The main reason why people get into car accidents is because they can’t drive.
From this information, reading statutes carefully and with a critical and thoughtful analyses of the language of a statute is important to separate the reality from the rhetoric. This is not intended to mean that drunk driving should be supported, rather it is intended to cause the reader, the citizen, the legislator to read statutes and proposed statues critically, and to think critically.
Why should time and energy be invested into reducing the cause of crashes that is way down the list of reasons for the crashes? The answer is likely because it is easy increase fines and fees for issues associated with DUI than it is to say what the change is really about. It is easy to raise fees and fines for a crime such as DUI because it is popular to hate it. In the words of a good friend of mine, Ted Vosk:
Defending an individual charged with driving under the influence of alcohol can be a challenging affair. Only those accused of sex offenses seem to be viewed with more disgust. The hysteria created by special interest groups has led to the adoption of ill conceived and unfair laws. Moreover, the spasmodic response to the proclaimed “carnage on the highways” has created a DUI exception to the Constitution so that citizen’s are now expected to check their rights at the ignition.
This does not mean we as Defense attorneys are “pro” DUI, rather we are “pro” common sense, fairness, and well thought out and well drafted laws. When we return for a look at the language of this new statute: “utilize innovative approaches based on best practices or proven strategies supported by research or rigorous evaluation” it makes no sense. How do we utilize innovative, meaning new, approaches that are proven? By definition, if they are new they are in fact, unproven. If they are new, how can they be considered a proven strategy? What the statute seeks to implement is methods that are proven to reduce DUI. Really, the only way to reduce it is zero tolerance. The current state of the law is this: it is not illegal to drink and then drive; so people do it.
The problem with permitting a judgment impairing activity is the line between impaired and not impaired is easily crossed. If the legislature wants a new yet proven method of reducing DUI crashes then stop the rhetoric and simply make laws that prohibit any alcohol mixed with driving a crime. Interestingly enough this is one way an innovative yet proven method work. Until such a time that the nation goes to zero tolerance the rhetoric of these statutes and agencies like MADD that seek to reduce DUI, simply seek to increase fundraising for their own causes.
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to a defense, is an important right that effects each and every DUI arrest and charge. If you, or someone you know is facing a DUI, or any alcohol related arrest and charge, 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.
Washington D.U.I Arrest Now Gets Mandatory Vehicle “Lock-Up!”
Unlike your driver’s license, which may not be suspended, revoked, or otherwise “lost” when you are arrested for a DUI, your car is not so lucky as of July 22, 2011.
An Arrest for DUI (RCW 46.61.506) or Physical Control (RCW 46.61.504) now require a mandatory 12 hour impound at the owner’s expense. The discretion formerly held by the arresting officer has been removed with only 2 exceptions: the vehicle is a commercial vehicle or is a farm transport vehicle and the registered owner was not a occupant of the vehicle when the stop occurred.
Many commercial vehicles are not owned by the driver’s who are hired to drive them so the law seems to respect their ownership interest in the vehicle as well as the trailer or load it may be carrying. The statute commands the officer that he or she SHALL provide and invest a reasonable amount of time and energy to arrange for the owner of the vehicle to take possession of the vehicle. The problem, however, is that the statute uses the specific language of owner and there is no authority to permit the owner to send or arrange a suitable driver. Consider the owner who cannot get from his residence in New Jersey to retrieve a fleet vehicle of his. He is not permitted to have anyone else take possession of the vehicle. The same may be said for farm equipment, except they are also in addition likely hard to find proper transport for so an exception can be made.
The mandatory impound is for 12 hours from the time the vehicle arrives at the tow storage yard, unless there are 2 or more registered owners of the vehicle OR there is a legal owner of the vehicle that was not the arrested driver. Under these circumstances, one of these persons may retrieve the vehicle after it arrives at the impound yard. This means a tow operator must take possession of the vehicle. As a result, contacting the registered owner prior to vehicle being seized by the arresting officer and transported by a tow company while the vehicle is still on the roadside, is no longer possible. As a result, charges for the hook-up, tow, and time in the tow yard in the form of storage will be accrued.
Given this financial gain by every tow company state-wide, it is no surprise that they were a very vocal special interest group and fought hard for this law. While many supporters of the law cite to the case of “Hailey” and the community safety concern, it is important to remember and highlight the fact that the arresting officer previously ALWAYS had the ability to impound the vehicle previously driven by a DUI arrestee. The officer in “Hailey’s” case choose not to. He choose not to even though that arrestee (who later returned to her car after her DUI processing) had a pending DUI,had a suspended license, and did not have the ignition interlock that was required due to her restricted driver’s license. This now mandatory law was always a possibility but it was the negligence of one arresting officer (as determined by a jury) and the multimillion dollar verdict that was the spark of this legislation.
While the community safety justification is one that cannot be disagreed with, there is no such practical problem in Whatcom County for DUI arrests. This is because the Whatcom county jail has a policy of mandatory booking of DUI arrestees. The arrested driver will not be released until a sober driver can be arranged to pick them up who must meet face to face with that driver and the arrested person proves a breath sample on a portable device that is .04 or lower. As a result of this, justification of this new impound law is less persuasive and the apparent influence of the tow truck lobby is in fact a reality.
While many other jails have a similar policy, many do not. In a Mount Vernon DUI, or Anacortes DUI, or any Skagit County DUI arrest, the jail will accept a DUI arrested driver, but only when space allows as the dangers of overcrowding have to be considered. In those counties, the officer can call the jail and see if the person will be accepted. If not, then the impound can move forward. Nevertheless, while the spirit of the law is a good intention, the practical effect of the law can be unforeseen and undesired such that the law requires an amendment.
It should be kept in mind that vehicle impound is not a seizure and forfeiture of the vehicle forever, unless the vehicle becomes abandoned, but rather, the law only permits a hold for a 12 hour period unless one of the previously described circumstances exists.
The law also removes liability for any damage or loss the vehicle sustains post-arrest of the driver, even if the officer departs the scene before a tow truck driver arrives to take possession of the vehicle. The statute permits the officer to simply lock the vehicle with the notice of tow and impound form inside the vehicle and leave the scene if, or when: the officer has waited 30 minutes since requesting the tow truck/impound; the officer is presented with “exigent” circumstances that are defined in the statute as “being called to another incident or due to limited available resources being required to return to patrol.”
To the average citizen who is unfamiliar with the nightly occupation of a officer conducting “emphasis” patrols the statute is essentially the officers to not remain with the vehicle because they are always short handed such that they are operating under “limited resources.” Sure it is just a car, but we tend to keep many valuable and important items in our vehicles and this opens them up to loss or destruction and the driver has no recourse. In a county where the driver will not be returning to the vehicle anyways due to mandatory booking, the complete waiver of liability may serve as a extra punishment for the DUI arrestee who happens to use their vehicle as a mobile office.
Finally, this statute may also punish an owner, who never really uses the vehicle as it is typically in possession of an employee for work. However, only a registered owner(s)s or legal owner(s)s may retrieve the vehicle from the impound lot, either early or post-12 hour hold. As a result, the only person who can practically get the vehicle, after the 12 hour hold or longer, is the former driver/arrestee, but has no ability to do so. This could be another extra expense in the form of longer storage time, therefore longer fees and travel expenses for an absentee properly owner.
This is not intended to suggest that this law should not have been passed, but rather, it is an example of good intentions affecting various unintended citizens and is the result of rushing legislation to appease the lobbying party at the expense of logical and measured thoughtfulness before stamping an effective date on a bill.
Jonathan Rands is an experienced, responsive, and dedicated DUI trial lawyer with proven DUI defense success. The impound of a driver’s car will also trigger a hearing to contest the impound legality and fees but this is a time sensitive matter and you must act within 10 days. 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.
