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.
Lewis County Deputy Coroner Arrested For Pain Pill DUI.
Recently it was reported that, the woman in charge of examining dead bodies for local criminal cases was arrested in July on suspicion of driving under the influence of pain pills, according to an incident report filed by the Lewis County Sheriff’s Office.
While many question the wisdom of making such an arrest newsworthy, it demonstrates that members of law enforcement are not immune to DUI and also identifies interesting issues that many are unaware of: DUI means Alcohol and/or Drugs. This holds true for drugs that are legitimately prescribed and taken responsibly under that prescription, as well as illegal drugs. Having a prescription for, and taking the drug precisely as indicated is NOT a legal defense to the charge of DUI-Drugs in Washington.
Unlike an alcohol DUI charge, there is no “per se” limit (alcohol is per se illegal at .08) to determine exactly when, or at what level you are deemed DUI. Instead, what typically happens is a blood draw after an investigation called a DRE Exam. First, however, the arresting officer needs to eliminate alcohol as a potential cause and once that is done the officer can invoke the statutory right to draw blood, but the more cautious investigating officer will call in a specially trained officer to conduct a Drug Recognition Evaluator, also known as a Drug Recognition “Expert.”
A DRE is an evaluation made up of questions, physical exam where vitals are taken, as well as Field Sobriety tests conducted. Technically, there are 12 steps to the exam and the final step is a blood drawn which should, or is intended to confirm the category of drug that the officer suspects.
Drug_Influence_Evaluation_Washington_State is a copy of the actual form that is used by an officer in his/her investigation. A close examination of the form shows that there is some expected biographical information as well as Field Sobriety Tests and then the real “voodoo” begins.
First and foremost it is important to recognize that the 3 standardized Field Sobriety Tests (HGN, Walk & Turn, One Leg Stand) are not scientifically validated to recognize drug consumption. Next comes the evaluation to check for vital signs such as heart rate and pulse which are effected by stress and such an investigation is not a relaxing event. The officer’s are not nurses, nor are doctors, and typically have no more medical training than that of first responder first aid and CPR.
The next exam is a “darkroom” exam where the officer turns off the lights in a room with no windows and then turns them on again and closely watches how your pupils react. Once again, the officers do not typically have any training with respect to optometry, ophthalmology or any specialized training regarding pupils.. The training they do have is to hold a small card next to the persons face and “estimate” the pupil size based upon the black dots on the card. A quick internet search of pupils will confirm the dozens of different causes of pupil issues
Then there is a muscle tone test to determine if you are tense or have “loose” or “flabby’ skin tone. Afterwards the officer will search the arm area for “injection” sites, or needle marks. Then the officer will conduct a drug specific interview and will asks questions hoping to elicit incriminating answers. Interestingly enough, the answers provided in this portion of the exam almost always correlates with the officer’s opinion of the category of drug he suspects the driver to have ingested.DRE’s are not medically trained to interpret the physical examination and what they mean, or could mean, rather the officer is simply trained to understand that sometimes there are certain physical attributes that can be associated with the ingestion of various drugs. There is by no means a cause and effect associated with any portion of the exam. In fact, the interview section of the evaluation is the most beneficial to the examiner’s opinion.
It is not unusual for there to be a delay between the arrest/evaluation and charges being filed in court if a blood draw is obtained, because it takes time for the blood to be analyzed by the state crime lab and then reported back to the officer and prosecutor. The significance of the blood evidence will be testified to by a member of the State lab with respect to what effect the substance identified will typically have on the human body as well as human performance. It is critical that the defense attorney has an excellent working knowledge of drugs and human performance as well as having the results reviewed by an independent witness with expertise in the field.
From a defense standpoint, the exam itself should be declined, in part because of the issues identified above, but also because the ultimate opinion of the officer is filtered through the eyes of a investigator who is looking to use the information obtained to support his/her opinion and to be used to secure a conviction for the charge being investigated. If the officer did not have some suspicion to believe drugs were ingested, there would be no investigation. Therefore the exam is somewhat self-serving and self-authenticating.
While it is true that an officer is not the one “on trial” in DUI cases, or any case, but since they are the ones accumulating the “evidence” their investigation must be free of mistakes and must utilize only the best possible methods with the strictest adherence to the law and rights of citizens. Anything less is irresponsible to say the least.
Ultimately, the proof will be in the final request for a blood draw should and this request NOT be refused. A refusal will likely result in the refusal being used against a driver in a criminal trial and the “evidence” accumulated in the above exam will be uncontested along with the officer’s ultimate opinion based on the above flawed exam. A wrongfully accused person will not have the evidence necessary to refute the charges.
Furthermore, a refusal will set up a situation where the Department of Licensing will seek to revoke the driver’s license for at least a year. Ironically, however, a blood draw that results in a drug being found in the driver’s system will NOT cause any Departmental action due to the lack of a per se limit for drugs. There can only be a licensing action via a criminal punishment upon conviction. Another reason for NOT refusing a blood draw request is because the Washington Supreme Court upheld the law that permits an officer to obtain a search warrant to draw your blood against a driver’s will.
The educated driver, should refuse ALL questions and requests for tests and should invoke the right to speak with an attorney before any tests or questions are answered. This is not because a driver is hiding anything, but interaction at the side of the road is a critical juncture that can set the stage for the future defense. Speaking with an attorney at any stage of a DRE investigation is a driver’s right and one of the most important rights available at the time.
Consulting with a private attorney or a public defender after hours will provide a driver with information that will protect the driver’s interest. This right should never be waived at any stage of any criminal investigation. Requesting an attorney does not make you uncooperative, nor does it mean a driver has “refused’ a breath or a blood test. What it means is that the driver is aware of his/her rights and is making good legal choices at a time where such choices are critical to how the continued interaction with the officer proceeds as well as what “evidence” can or will be obtained next. DUI is a serious and complex charge with far reaching consequences and the wrong choice at a critical stage could mean the difference between a dismissal of charges and a verdict of guilty as charged.
Any DUI allegation is a serious matter and charge. It is not an allegation to be dealt with lightly and this is exactly why an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success is mandatory. If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at 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.
A Meaningless “Right” In Bellingham-Whatcom County
You have just been arrested and provided a breath sample that seems very wrong. There is no way that the printed result could be right. After all how could it be when you only had 1 drink? Or in another scenario, you have spoken with an attorney before you have to give a breath sample and s/he has advised you to give a breath test and then exercise your right to an “independent” test of your choosing and tell the officer that you want to be taken for a blood draw at your own expense.
After all, this is your right, correct? YES. The Implied Consent law in Washington states that a driver arrested for DUI has a right to an independent alternative test by a qualified person of their choice. Despite the importance of an alternative blood test, many citizens do not know how to obtain one, and many lawyers forget to counsel the 2 am client to do so. This right translates into very important evidence that often times provides a more accurate test and when the old and unreliable breath testing technology shows a person to be around the .08 to .10 mark, a blood test will often show that they are in fact innocent of DUI as they are under the legal limit of .08, or under the .15 threshold where more sever sanctions upon DUI conviction occur.
While this is a right all driver’s suspected and arrested for DUI have, it is one that is NOT respected in Whatcom County. Although this is a right of a driver granted by statute, it is no less a right than the rights granted by Constitution. The right to an independent test is no less a right that the right to vote, bear arms, free speech, or freedom to assemble. The fact that this right is most meaningful in a unpopular situation of DUI, does not diminish it.
A person who tries to exercises this right is unfairly denied the ability to obtain an alternative test in this county. Here is why: The main arresting agencies in Whatcom County are, State Patrol, Whatcom County Sheriff, Western Washington Campus Police, Bellingham Police, Ferndale Police, Lynden Police, Blaine Police, and Sumas Police. Due to policy issues every person arrested for DUI in Whatcom county is to be booked into the County Jail. Arrested persons are typically taken to the nearest breath testing machine, located in either the jail or the city police depatrment and once a breath sample is obtained and if at, or above .08 they are transported and booked into jail on the charge of DUI.
Once at the Jail, despite the fact they have trained medical staff they will not perform a blood draw. The only facility in the county where there are qualified persons to perform a “legal” blood draw is St. Joseph hospital. The hospital is open 24 hours, but has recently stopped performing these blood draws for those who request it at their own expense. The irony is that St. Joseph will happily perform the exact same blood draw if the arresting officer has a warrant to do do so. This is not at the expense of the driver, but rather the tax payer. The rational for this refusal to perform voluntary blood draws is currently unknown at the time. By virtue of the fact they will do a blood draw if a warrant is present (by the way the warrant does not order them to perform the draw, it only requires the person to submit to a blood draw) indicates that there is no inability to do the blood draw, and that perhaps they are trying to accomplish some moral-legal goal. However, by failing to do a legal blood draw upon the simply request to do so at the requesters own expense, can have the direct opposite effect.
If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at http://www.jrandslaw.com | jrands@jonathanrands.com | 360.306.8136.
