This Shit is Getting Real: Trump v. The Constitution

https://www.theatlantic.com/politics/archive/2017/02/trump-tried-to-intimidate-the-judges-over-his-ban-and-he-failed/516294/


Watching the ferocious clashing of two branches of US Government is more exciting to me than watching the Superbowl.This is a full on fight between Trump and courts. I say "courts" because its not just the 9th Circuit he is up against. It is judges everywhere. In every court in every state of America.  You can't treat a judge like shit because you disagree. Judges are people too.  They have feelings. And his statements will continually come back to haunt him. He called the court's decision outrageous. He said the answer is so simple, even a high schooler would get it. He said it should be EASY D, whatever in gods name that even means.( I heard it is gay slang for promiscuity).  He said if something bad happens it will be their fault. His words are treasonous.

I listened to the oral arguments. Trump's lawyer had a tough job. He sounded demoralized throughout the proceedings. Yeah the judges were asking him tough questions. Its not really his fault there simply were no good answers. He couldn't pull a Kellyanne Conway or Sean Spicer and refer to a set of "alternative facts" when pressed for factual support for his argument. If Trump was there he would have said something like "Don't worry about it your honor. Believe me. Believe me. Nobody knows better than me."

I'm pretty serious when it comes down to constitutional rights. They mean everything to me in my personal life and my law practice. I believe that even as unpleasant as some situations can be, constitutional rights are paramount. Even if it means giving up some safety.  They must be defended vigorously and without discrimination. They can't be set aside because the President is trying to scare you in to just believing him.

Whether you like it or not, the Constitution is firmly on the side of the many thousands of citizens and individuals whose rights have been violated by the travel ban. The Constitution does not understand radical Islamic terrorism and "bad hombres". Maybe it would understand "lobsterneck", (a derogatory comment for redcoats back in the day). But the Constitution is not sensitive to the latest and greatest threats to society just because there are bad hombres out there. What if Trump really knows something we don't? I doubt it. The Court was willing to consider evidence under seal before making their decision. Trump had nothing to offer. I imagine if we were on the edge of disaster, there would have been a submission of something.  But all we got were vague references to "findings". What the fuck is a finding?

Oh the Drama! The Supreme Court is split 4-4 right now. If Neil Gorsuch gets in on time there will be a Conservative majority. What if he is held up long enough to miss the vote? The Democrats wouldn't try to do that would they? Regardless I think the issues will be clear enough for the Court to come together and decide against Trump. Unless Trump comes up with some real evidence to support his claim which is essentially;  national security must trump the constitutional rights of individuals under these circumstances.

If we have a Supreme Court oral argument on this I'm throwing a party. No talking though.

Taking the DWI Refusal Case to Trial

The most common question people have about a DWI arrest is whether they should submit to a chemical test. A case in which a driver declines to do the test is known as a "refusal" case. There is no bright line rule and it depends on the circumstances. Frankly, I am uncomfortable trying to answer the question because every situation is unique. I will say that if you are arrested and are considering refusing, insist to the police that you want to talk to a lawyer before you make your decision. Talking to a lawyer will become very important should you refuse and fight your case in court. I will explain why below.

In some counties, such as Albany where I practice frequently, no plea bargains or reduced charge will be offered to the motorist that refuses. (You can read more about refusal cases here.) Also, be aware that the test refusal I am referring to in this post is the chemical test that is given at the police station, not the little device used on the roadside. That device is called a Preliminary Breath Test and the consequences of refusing that test is a traffic ticket.This post will address the issue of taking a refusal case to trial before a jury and the complications that come with it.

A bedrock principle of our criminal justice system has always been that a defendant will not be forced to incriminate himself. A defendant has the right to remain silent and that silence may not be used against him as evidence of guilt at trial. Many a mis-trial has occurred because of inappropriate comments made by a prosecutor to a jury with regard to a defendant's decision to not take the stand. The burden is on the government to prove its case beyond a reasonable doubt. The defendant is presumed to be innocent until the jury decides he is guilty. The presumption of innocence lasts throughout the trial. This right however, as with many other Constitutional rights, is sadly eroding thanks to the US Supreme Court. (In Salinas v. Texas the Court held that silence in response to police questioning is admissible at trial unless the defendant specifically invokes the right, or communicates to the police that he or she is invoking the 5th amendment privilege to not communicate. So now average Joe needs to have a full understanding of his Constitutional rights before they can be applied to him?)

One of the most important principles a juror must understand is that they are absolutely forbidden from holding a defendant's decision not testify at trial against him. This principle is fully discussed and explained during jury selection and before the jury gets the case to deliberate. A lawyer will always get someone during jury selection who honestly admits that if the defendant does not testify, they will presume guilt. This prospective juror is actually helpful during jury selection because his candor usually sparks a conversation that encourages a jury panel to think really hard about their ability to not use silence as evidence of guilt.

You can talk about the right to remain silent, the presumption of innocence, the burden of proof, and the importance of these principles as being fundamental to our system of justice until you are blue in the face. But the fact of the matter is that expecting a juror to completely embrace a legal principle that is inherently illogical is fantasy. Because everyone believes that if a person has nothing to hide and did nothing wrong, then why wouldn't they say so to the police or at trial? If the trial lawyer fails to provide the jury with an innocent explanation for the defendant's silence the case is in jeopardy.

With the above in mind, there is no other trial where the defendant's silence is more significant than a DWI refusal trial. That is because at the close of the trial, when the judge is instructing the jury before deliberations, the judge will tell the jurors that if the defendant failed to provide an innocent explanation for refusing, they are allowed to presume the defendant refused because he was conscious of his guilt. In other words, the defendant knew he was intoxicated or impaired.

Here is the sample jury instruction that a judge will read:

Under our law, if a person has been given clear and unequivocal warning of the consequences of refusing to submit to a chemical test and persists in refusing to submit to such chemical test and does not give an innocent explanation for such refusal, then the jury may, but is not required to, infer that the defendant refused to submit to a chemical test because he or she feared that the test would disclose evidence of the presence of alcohol in violation of law.

This instruction simply frightens me. It completely shifts the burden of proof to the defendant by forcing him to prove his innocence. But the courts so far have dismissed the many challenges to this instruction by analogizing a chemical test refusal to a defendant who flees from police or escapes custody.

One of the first cases I tried was a refusal case. I was pretty fresh out of law school and my head was still filled with the glorious fantasy of constitutional rights and their application in court. The case was a typical DWI case. There was no accident or any other aggravating circumstances. But because of the refusal, the offer from the DA was to plead guilty to the charge, not much of an offer at all. I knew my client would not testify. But I foolishly believed there was no way the judge would tell the jury to hold my client's decision against him. I was wrong. And despite my efforts to create many reasons to doubt my client's guilt, I knew it was over the minute the refusal instruction was given to the jury. I still feel pretty burned by that judge. Knowing I was inexperienced at the time you think he could have thrown me a bone when we told him we were not calling any witnesses. He knew it was over at that point.

So what it comes down to is that at a DWI refusal trial, you have to put your guy on the stand. After all, if he stays silent and does not explain why he refused (other than being totally shit faced) you will probably lose. My most recent trial involved a client who really knew what she was doing the night she was arrested. There was essentially no evidence against her. There were no admissions, no field sobriety tests, no preliminary breath test, no obvious signs of intoxication other than the always noted "glassy eyes" and "odor of alcohol".  We had an innocent explanation for the odor. My client spilled beer all over her clothes right before she left work at a restaurant. The case sucked for the prosecutor. I could not believe they wouldn't give me a plea bargain. I would have taken it. But what they did have was a refusal. So instead of my defense involving the usual aspects of DWI defense such as attacking the science and technology of field testing and breath testing and getting in evidence of sobriety, my defense theory rested almost entirely on explaining to and effectively convincing the jury that my client's explanation for refusing was an innocent one. The burden of proof in this case rested on the defense. Incredible. (That trial ended before it started. We were about to begin jury selection when the prosecutor got a message from his boss to give us a deal.)

What could possibly be an innocent explanation for refusing? How about this one - A lawyer told you not to do the test. Well, why would a lawyer tell you not to do the test if you were not drunk? Well some people still think lawyers are experts about the law and will do whatever a lawyer tells them to. If your doctor tells you to do something you do it right? You trust his experience. Well my client above talked to a lawyer and he said don't do the test. I don't know why he told her not to do it. It only mattered that he did and being in a position of trust, my client took his advice.

I am very uncomfortable giving out this kind of advice to someone. First of all, this person calling me in the middle of the night is not my client. And will most likely not become my client because I am now a witness. And there are so many variables to consider and too much information required to give someone good advice. But the police have to let a suspect attempt to reach a lawyer before they make the decision as long as the call does not unduly interfere with the investigation. Failure to allow the suspect to attempt to reach a lawyer can result in the suppression of the test refusal evidence. So if someone is thinking of refusing, it would behoove them to call a lawyer before doing so. It can be an innocent explanation.

Why else would someone refuse to blow other than the consciousness of guilt?  Well the police told them they had the right to remain silent when they were arrested. Some folks innocently believe that the right extends to refusing to give up their breath and that refusing can't be held against them at trial. Yes, the police do inform a suspect that their refusal can be used against them at trial. But most people really can't comprehend the true meaning of this warning.

Here is a copy of the warnings the police read to a suspect with regard to the chemical test:

You can see from the warning that it doesn't exactly explain that a judge will tell a jury that refusal means the defendant knew he or she was guilty, does it?

Some folks are just simply scared out of their minds and don't trust technology. Why wouldn't anyone trust a breath test device? Maybe it is because they read the news and are familiar with the many stories of inaccurate tests done on crappy machines that produce false positives. The stories about problems with breath testing machines are plentiful.

http://www.rutlandherald.com/article/20110514/NEWS03/705149955/1004/NEWS03

http://www.hgexperts.com/article.asp?id=5739

http://www.kptv.com/story/23448649/reliability-of-breathalyzer-machine-called-into-question

So even though a test result is not part of the evidence at a refusal trial, the defense must discuss the topic of breath testing technology with the jury. The jury must be made aware that breath testing devices are machines that often don't do a very good job and should not be trusted for mechanical and many other reasons that I will save for another post.

So as you can see from above, the courts have created a huge exception to the Constitution in the context of DWI refusal trials. The courts pretty much admit to doing so, but justify their jurisprudence on the need to protect motorist from drunk drivers.

Thanks for reading!

Tips For The Concert Goer

• Do not carry more than 25 grams of weed. Possession of over 25 grams is a crime while under 25 is a violation.

• Smoking weed in public is a crime. If your weed is in plain view in a public place that is a crime as well.

• Avoid smoking in your car. If the police smell the odor of burnt marijuana from a vehicle they have probable cause to search it and will want to search the occupants as well. DO NOT CONSENT to a search of your car or person. The police will find what they want to anyway and if you consent to a search of your person or vehicle, you are flushing your 4th amendment rights down the toilet. If you do have controlled substances always keep them in your trunk.

• Albany police are generally pretty cool. If you do have an interaction with the police, be nice and polite, but be aware of your rights. Identify yourself, where you are from, and where you are going. Beyond that limited information keep quiet. Statements made when a suspect is not formally arrested can be used against you as evidence in court.

• Try to record your interaction with the police. Make sure your keypad is locked.

• Avoid carrying pharmaceuticals for which you have no prescription.  If you intend to carry prescribed medication, make sure it is in the original container from the pharmacy.

• Avoid driving if you are going to party. As soon as the police detect an odor of alcohol from a driver, he or she will likely be arrested whether intoxicated or not. Never admit to drinking when driving if you are pulled over.

• Do not consent to a search of your hotel room. The right to be free from warrantless search and seizure applies to a hotel room.

• If you are arrested and are arraigned by a judge, there is a good chance you will go to jail. People are often arraigned without attorneys and folks from out of town are often not released. If you are arraigned without counsel be aware of the following: You have the right to be released on bail or recognizance. Be prepared to explain to the judge where you live, where you work or go to school, who you live with. Inform the judge that you absolutely intend to come back to court. You can also politely insist that you want to talk to a lawyer immediately.

I am a local criminal defense lawyer and can be reached at 518-209-3673. You can also message me on Facebook.

Driving While Ability Impaired by Marijuana in New York: Jim's Story

I first met Jim after his father came to my office to discuss Jim's recent arrest for drug impaired driving and marijuana possession. Jim was being charged with Driving While Ability Impaired by Drugs, in violation of New York State Vehicle and Traffic Law Section 1192(4) and Criminal Possession of Marijuana in violation of New York State Penal Law Section 221.10. Initially, Jim's father figured the case was no big deal, and retained the family lawyer to represent Jim. After a couple of court appearances the family lawyer told Jim and his dad that he worked out a deal with the prosecutor and if Jim agreed to attend drug court, the District Attorney would offer Jim a reduced charge of Driving While Ability Impaired by Alcohol (or DWAI, in violation of New York Vehicle and Traffic Law Section 1192(1)) to settle the case. DWAI is a traffic violation, it is not a crime. (However, a DWAI conviction carries with it substantial consequences in the form of license suspension, heavy fines,a requirement to attend the NY DMV Drinking Driver Program, and substantial insurance premium increases.) Jim wisely refused to plead guilty to an alcohol impairment charge because he had not consumed any alcohol the day he was arrested. That is when Jim and has Dad came to me for advice.

Jim's dad was aware that the bulk of my practice was built on the defense of impaired driving cases. He and Jim felt very strongly that pleading guilty to an alcohol offense was a bad idea. I agreed with them for many reasons. I explained to them that Jim did not have to take the deal and that there were ways to fight the case to get a better result. The only thing you would have to lose, I explained to them, would be the money you'll have to pay me to do the work. And there would be no guarantee of success.

Jim had never been in trouble in his life despite being a habitual pot smoker since his late teens. Despite the conventional view of many folks that so called "stoners"can't get out of bed in the morning, (and eat Cheetos all day in their parent's basement playing video games), Jim was more of the Steve Jobs or Obama type of stoner. In addition to smoking pot, Jim maintained a 3.8 GPA while working nearly full time at his family's business.

So one summer day, Jim and his buddy took some time off in the afternoon to go buy some weed from this guy in the hills. They purchased an ounce (28.349 grams) which is probably one of the most common weights pot smokers purchase. The problem with that weight, (if you want to call it a problem), is that possession of over 25 grams of marijuana in New York is a Criminal Offense. Possession of 25 grams or less is not a crime in New York. It is, in fact, a violation whose consequences upon conviction can be less serious than a speeding ticket. This violation is called Unlawful Possession of Marijuana or UPM. (New York Penal Law Section 221.05) (For a discussion of UPMs on this blog you can read here).

As Jim and his buddy make their way back to campus, they decide to take the scenic route and traverse some of the most bucolic country roads in upstate New York.  Enjoying the beautiful scenery, jamming some tunes on the stereo, and taking their time, they decided to smoke. That was a poor decision and one that should be avoided at all times.

The weed kicked in and Jim and his pal got the munchies. After stopping at Denny's for a Moon Over My Hammy or whatever, they hit the road again and headed back to campus. With Phish's Picture of Nectar jamming on the stereo, the sun begins to set, illuminating the magnificent rolling hills of farm country. As the sun goes down, Jim did what any reasonable driver would do; he turned on his car's headlights. This is where the trouble began.

It was around 8:30 in the evening in August.  Jim was driving the speed limit while passing through one of the many beautiful (yet apparently abandoned) little villages in upstate New York. It wasn't quite dark yet, but dark enough that headlights should be on. A State Trooper passes Jim from the opposite direction. Less than a minute later, that trooper was now right behind Jim with his emergency lights activated. Praying the trooper will pass him, Jim slows down while his buddy frantically tries to hide the weed they just bought under the seat. Jim turned the car's fan on. "Do you have any cigarettes?", Jim says to his buddy. The car reeks of the skunk bud they just bought from the farmer. The cop isn't passing and hits the siren. Jim carefully and slowly pulls over in the safest place he could immediately see. And as they say, the rest is history.

THE ARREST

The trooper, (the arresting officer who I will refer to as "Trooper" hereinafter) carefully approaches the driver's side of Jim's car. Jim has his window open a couple of inches and he is praying this somehow is not happening. Trooper smells the skunk bud and the game is on.

Trooper tells him Jim to roll his window down. Jim complies, retrieves his license, registration, and insurance card and hands the documents to Trooper. At this point Jim is praying that this cop is going to be cool. (Yeah right!) Trooper takes the documents, tells Jim to stay put and goes back to his cruiser. While Jim is hoping for the best, Trooper is back in his car calling for back up. Things are not going well for Jim at this point.

Now a routine traffic stop has quickly escalated in to an investigation.  Trooper returns to Jim's car and tells him to get out and Jim complies. Trooper asks Jim if there are any drugs or weapons in the car and Jim says no. (Good move Jim! Making incriminating admissions to the police is always a bad idea. Are you lying to the police? Yes, but that whole "be honest with me and I will go easy on you"  line the police feed people is a lie as well. You are protecting your rights and preserving defenses. At this point in Jim's story he is going to be arrested no matter what he says.)

When backup arrives, Trooper orders Jim's buddy to get out of the car. In addition to the overwhelming stench of marijuana that gave Trooper the requisite cause to do so, the US Supreme Court held a police officer can order a passenger out of a lawfully stopped vehicle. The car is searched. The weed and a bowl are found. Separated from his friend, Jim takes full responsibility for the weed.

Since I have been in the criminal defense business for 8 years I believe I am entitled to make "back in the day" comments. So back in the day, Trooper would have simply issued Jim an appearance ticket for marijuana possession. It would have not been a big deal and Jim would be eligible for a conditional dismissal. But times are changing. And when honest Jim admitted that he had smoked earlier, things went way downhill. And that is because Trooper decided that he had a good case for a Driving While Ability Impaired by Drugs investigation. Jim was arrested and taken in to custody.

COURT

My first appearance is court was typical. The prosecutor wouldn't bend and stuck to her guns with the original plea bargain offer. We had no choice but to proceed to trial. This particular court was out in the middle of nowhere. I had never appeared in this court before. The judge was a lay person. She was not a lawyer. All the local lawyers rubbernecked when I walked in. A couple of them gave me their cards knowing I was from out of town and offered their services if I could not make it to court. (Lawyers are actually nice people sometimes!). I spoke briefly with the prosecutor confirming her initial offer and let her know of our intentions to fight the case. Of course her response was the perennial "the deal is off the table now" and that she would ask for jail time if Jim was convicted. Undeterred, I asked the judge to set a motion schedule. (In all criminal cases motions are filed before trial challenging things such as a legal basis for detaining the defendant, probable cause to arrest, etc. And sometimes more importantly to nail the police down to a story, and learn more details about the case outside of what the law requires be disclosed to the defense). The prosecutor advised the court that she was "ready for trial", (which she was not and I will explain why later). Prosecutors always make the "ready for trial" statement to guard against a Speedy Trial dismissal.  Shortly after I filed the motions, the Judge granted my request for a hearing, at which I would have the opportunity to cross examine Trooper.

At the first hearing Trooper said he pulled my client over because he failed to dim his headlights. Jim had explained to me that his car is twenty years old and in poor condition. And that even with the high beams on the lights are unusually dim. I inspected the car and agreed with him. I felt the basis of the traffic stop was bull. But how could I prove it? And when I say bull I mean that it lacked a legal basis, or violation of the law, which is required by the Constitution before a citizen can be detained or pulled over. (Of course there are many exceptions; Check out this recent decision from the Supreme Court holding a cop's ignorance of the law when pulling over a non-violating motorist was reasonable: Heien v. North Carolina)

My cross-examination of Trooper went as expected. His testimony was credible. After receiving a transcript of the hearing, I did some research with regard to the statute Jim was allegedly pulled over for violating, New York Vehicle and Traffic Law Section 375(3), "Failure to Dim Headlights". I was surprised to learn from case law that it is in fact not a violation to fail to dim headlights in every situation. The requirement to dim is not per se. The law only prohibits lights in the high position if they interfere with the safe operation of other motorists on the road. And without evidence that the accused motorist's lights were somehow "dazzling" or interfered with other motorists, the traffic stop would have to be held invalid. After receiving the transcript of the hearing, I could not find any explanation Trooper gave for believing the lights were bright other than he just "knew it".  I argued in a post hearing brief that the proof was insufficient to sustain the basis of the traffic stop. And because the stop was illegal, all evidence gathered subsequent to the top should be suppressed (or kept out at trial.) (This procedure is known as the Exclusionary Rule; If the police lack a legal basis to detain you, the evidence gathered subsequent to the detention is suppressed or prohibited from being used at trial. It is meant to deter illegal police conduct by punishing the police for violating your Constitutional rights. It doesn't work very well in practice). I had several on point cases supporting my argument.

Long story short, my motion to suppress was denied. I don't think the judge even read my papers. I think I was annoying her. She insisted that I drive the two hour round trip to the court just to get the decision on the motion. When I appeared in court for the decision, she looked at me and said, "Is this big pile of papers here your case?" Upon my affirmative reply she muttered, "motion denied". I requested a written decision to which her reply was, "Oh you want a written decision, huh?" As diplomatically as possible I explained to her that I needed to explain to my client why we lost. (I did not mention that the criminal procedure law requires the court to set forth its findings on the record and that I wanted it in writing in case I had to appeal. This judge would be presiding over my trial after all, and she was already annoyed with me.) A trial date was scheduled and I left.

PREPARING FOR TRIAL

Now that the case was set for trial I filed a Demand to Produce or Demand for Discovery. The prosecutor is required to disclose the evidence he or she intends to use against a defendant at trial. (Do you remember that scene from My Cousin Vinny?) I didn't want to try the case. I just wanted a fair deal. I couldn't get what I wanted to get and as with everything else in life, you have to work for something special. I started working on a theory of innocence for both the impaired driving charge, and the pot possession charge, which were both misdemeanors. At this point I was pretty confident I could convince a jury that Jim's driving was not impaired when he was arrested. But getting around the possession charge would be difficult. Jim admitted to the police that the weed belonged to him. So that left a challenge to the lab test of the weed and most significantly, the weight of the weed. The prosecutor would have to prove that the weed weighed in excess of the roughly 28 grams to sustain the criminal possession charge. She would also have to establish a chain of custody. And finally, the forensic lab worker would have to testify at the court and be subject to cross examination.

Weeks passed by. I received the bulk of required discovery, but I still did not have the lab test affidavits, despite repeated requests. I was getting a little nervous. My plan was, if the affidavits indicated the criminal weight, I would have it weighed by an independent lab as we were talking about a couple of grams difference between a crime and a violation. (My theory was that the original fresh skunky bud would de-hydrate significantly in the year and a half since its original seizure and weigh less now.) If I was convinced it was really criminal weight, I might have advised my client to take the deal as the risk of conviction was too strong on the possession charge. A criminal conviction would have really imposed a hardship on my young client's bright future. Two days before trial I finally heard from the prosecutor. The weed had never been sent to the lab. I asked her how she intended to prove her case without the lab test or the witness who tested it, (both are required proof at trial). Her response was that she would simply let the jury decide. What? Without the lab work the charge would have to be dismissed before the trial started. Either she was woefully ignorant of the law, or she assumed that I was. Knocking out the possession charge was a great relief and now I could focus completely on my defense of the drug impairment charge which I was confident was very strong.

The night Jim was arrested he was asked to submit a urine sample. (In New York, every licensed driver has a legal obligation to submit to a test of a blood, breath, or urine. It is kind of like a contract between the driver and the DMV. Once a person is lawfully arrested for suspected impaired driving, they must submit to the test. If the driver refuses, their license is revoked). (To read about the consequences of refusals you can read here). Jim complied with the urine test. One of the documents I got through discovery was a lab test indicating that THC metabolites were detected in Jim's urine sample. THC is the active chemical in marijuana. Initially I thought this certainly was not going to help my case. However, I quickly learned that the test didn't prove anything with regard to driving impairment. All the test proved was that Jim had smoked pot sometime in the past. It did not prove he was high on THC the day he was arrested.

The main active metabolite of THC is 11-Hydroxy-THC. It is the chemical found in cannabis that produces a psychoactive effect or a high. As we all know, the high eventually dissipates and the 11-Hydroxy-THC metabolizes in to 11-nor-Carboxy-THC, which can remain detectable for weeks after ingestion and is non-psychoactive.11-Hydroxy THC can only be detected by a blood test. In Jim's case we only had the urine test which did indicate the presence of 11-nor-Carboxy-THC.

The presence of the non-psychoactive THC in Jim's body was in my opinion irrelevant to the issue of Jim's impairment the day he was arrested.

Why was Jim arrested for impaired driving that day? Unlike some other states, the presence of a controlled substance on its own is not enough proof to sustain a conviction for impaired driving in New York. Just as with alcohol (for now at least), there must be proof that the driver lost his capacity to safely operate a motor vehicle in addition to proof that a controlled substance (or alcohol) was ingested. Where was the proof that Jim was impaired?

The elements, (facts that must be proven beyond a reasonable doubt at trial), of a Driving While Ability Impaired by Drugs charge are as follows: 1) The defendant ingested a drug. 2) The drug is proscribed by Public Health Law Section 3606. 3) After ingesting the drug the defendant operated a motor vehicle. 4) The defendant was actually impaired by the drug while operating a motor vehicle. Impairment can be loosely defined as a physical and mental state that deprives the driver of the capacity to safely operate a motor vehicle.

In this case, the prosecutor would be relying on the Field Sobriety Testing that Trooper would testify that in his opinion, Jim failed. The so called Standardized Field Sobriety Tests (SFTS) were developed in a laboratory for the specific purpose of making an estimate of Blood Alcohol Content. The purpose and design of the SFSTs are specific to assisting a police officer in making a determination of probable cause to arrest a driver suspected of being impaired by alcohol. The SFTSs were absolutely never intended to be used as evidence of drug impairment or alcohol impairment and in my opinion, if a judge allows a jury to hear about a driver's failure of the tests, that testimony should come with a strict limitation instruction. (For a discussion of the SFSTs you can read here.) I wasn't worried about this so called evidence against Jim. In fact, I am often successful at turning them around in my client's favor as evidence of sobriety.

I felt that the most powerful evidence that Jim's driving was impaired would come in the form of the so called Drug Recognition Expert or DRE that examined Jim the night he was arrested. A DRE is simply a cop who has received the requisite training to be called an expert. Keep in mind, that when a jury is allowed to hear the testimony of a witness who is referred to by the court as an expert, that witness's testimony will carry significant influential weight with the jurors.  Ordinarily, before a witness can testify as an expert at trial, their qualifications and the scientific methods employed by them must be thoroughly vetted and proven reliable to the court. That is ordinarily not the case with a DRE in a driving impairment case. Of course the methods and science of DRE examinations and training can be called in to question through the cross examination of the DRE. But the fact that DRE testimony gets in to evidence as expert testimony creates a mountain of influence that must be strip mined by the defense for the jury.

Now remember, the presence of a controlled substance in the body on its own is not enough to sustain an impaired driving charge. The prosecutor must prove beyond a reasonable doubt that the influence of the controlled substance affected the driver's capacity to safely operate a motor vehicle. (Sometimes I will ask a cop on the stand if he recalls applying for a license and taking a road test. Did the examiner make you stand on one foot? Did you have to walk a straight line? Were you given divided attention tests? Did you have to recite the alphabet? Were your eyes checked for nystagmus? Of course not.)

The DRE is tasked with two jobs. One is to form an opinion of what type of drug the arrested driver is under the influence of. And two, if that drug influence impaired the ability to safely operate a motor vehicle. How do they arrive at their expert opinion? Below is a copy of the form used by the DRE to guide his examination.

As you can see the form contains a whole bunch of information. The DRE examination begins with an interview. Most of the information gathered during the interview stage is duplicative. During this phase of the examination, the DRE is focused more on making observations of the suspect's overall demeanor and mental and physical state. The next phase involves a physical examination. The suspect's pulse is noted. The eyes are checked for nystagmus. As you can see from the chart, the DRE noted that Jim's eyes lacked smooth pursuit, or they did not follow a stimulus in a smooth manner. (Interestingly, the arresting officer did the nystagmus test on Jim earlier and noted there was not a problem with smooth pursuit.) The SFTS are administered again. As you can see, Jim did pretty well on the tests, but the DRE determined that in his opinion Jim failed. You will also notice that the DRE indicated he observed tremors in Jim's eyelids. One of the craziest parts of the DRE examination involves an examination of the suspect's eyes reaction to light. Part of this test involves taking the suspect in to a room, shutting the door, and turning off the lights for a couple minutes. The lights are turned back on and the DRE notes the reaction of the pupils. (Can you imagine standing in total darkness with a complete stranger for any amount of time? What about the cop who is standing in total darkness with what he thinks could be a drugged out criminal? Wow!) The size of the pupils are measured by holding up a chart that has a range of pupil sizes measured in millimeters. The chart is held next to the suspect's eyes and the DRE makes an estimated measurement within a millimeter. The nasal cavity is examined, the oral cavity is examined, the arms are felt up for muscle tone. Blood pressure is checked and body temperature is measured.

The DRE is playing doctor and essentially administering a physical. (One of the most intrusive parts of the examination involves a testicular examination. Just kidding!)  With a handful of training hours and experience under his belt, the DRE takes all of these medical observations and testing data and arrives at a conclusion. The conclusion being that the suspect is impaired and is likely under the influence of a drug. The DRE determines what type of drug by using another handy dandy chart that is posted below:

 

As with all scientific tests, the results must be objective. Seldom are a DRE's examination anywhere close to being remotely objective. That is because most of the time, the DRE already knows. He knows because he already talked to the arresting officer who either found controlled substances on the the suspect, or gained an admission. In Jim's case, the DRE arrived at the remarkable conclusion that Jim was under the influence of cannabis.

Prior to trial, I made a motion asking the court to allow me to admit in to evidence a scientific study that I believed would be powerful evidence for the defense.

 

Notice the primary author of the study is Eduardo Romano PhD. Doctor Romano is a senior traffic safety research scientist at the Pacific Institute for Research and Evaluation. The study above arrived at the not too surprising conclusion that "our results show no relative risk for a fatal crash risk associated with marijuana".  The studies findings are extraordinary to me. After all, isn't the foundation of laws against marijuana influenced driving based on science indicating that it is dangerous and puts the public at risk? What is especially extraordinary about this study is that it was funded by the very same entity that promotes the arrest of suspected marijuana influenced drivers and throws them in jail. That would be the Federal Government via the fully government-funded National Highway Transportation Safety Administration or NHTSA.

Finally, after a year and a half of legal battle, the DA threw in the towel a day before trial. The marijuana charge and the impaired driving charge were dismissed. Jim plead guilty to a traffic violation, paid a small fine and went on his merry way.

WHAT TO EXPECT IN THE FUTURE

Impaired driving is a huge problem that destroys lives every day. I understand this more than most people. But as a DWI lawyer, please believe me when I tell you that there is no other area of criminal law where such an incredible number of people accused are innocent, or there is simply no reliable way to determine guilt with any certainty, of the many who are convicted of impaired driving offenses.  I find this fact, to be a continually intriguing and motivating factor in my dedication to putting the government to its proof in impaired driving cases.

I'm not sure how much harsher the consequences for impaired driving convictions can get. But it is logical to believe that they will only become harsher, eventually leading to zero tolerance laws with mandatory minimums for first time offenders. Scary thought, but inevitable, because the war on impaired driving is based on fear, pandering to the ignorance of the masses, junk science, and significantly, crony capitalist industry. I don't know the market numbers but DWI enforcement is big business. Every police department wants the newest and best breathalyzer. (Which is ironic since the government boasts about accuracy, but every year a new machine comes out that is better at its job?) We now have a thriving Ignition Interlock Device (IID) Industry. Lobbyists in Washington are tossing big bucks at the politicians who pass legislation tying up Federal highway funds with mandates to the States that force these devices on the people. The day is soon coming that IIDs will not only be mandatory for first time offenders, but even non-offenders will eventually be required to have some kind of alcohol and drug IID in their vehicles.  And the argument that the government is doing so because they want safer roads is a bunch of malarkey. This will happen because there is a shitload of money to be made. Screw the people.

So now that government is becoming so weed friendly with the recreational use and legalization of marijuana becoming the norm, the "Impaired Driving Industrial Complex"  has recognized an absolute goldmine.  In addition to arresting drivers who smoke marijuana (where before they would be given a ticket and sent on their way, at least in New York), we are witnessing the birth of the rapidly growing marijuana breath test device industry. Devices that purport to measure THC levels are on the market, and law enforcement agencies are training Drug Recognition Experts, or DREs, who can purportedly express an expert opinion with regard to the presence of a drug and drug impairment that is admissible in evidence at trial.

Thanks for reading!

Sorry, You Can't Go To Jail Today

I met Paul three years ago at my local watering hole. Nice guy. He was a volunteer fireman, and an ex-convict.  Of course, when he found out I was a lawyer I got his life story. But he was funny and I enjoyed talking to him.  Eventually, Paul and his family hired me for several different legal matters. They paid well and all was good.

Then one day Paul stopped by my office.  He got arrested the night before and was being charged with misdemeanor drug possession. It was crack. He showed me how the police demolished the console in his car. He said the stuff was not his but belonged to the girl (prostitute) he was with and that she stashed it when he got pulled over. He believed his rights were violated and he wanted to fight the case. That is what we did. Despite his lengthy criminal history and the prosecutor's insistence he do some time with probation, he eventually plead out to a non-criminal violation. He paid a fine and went on with his life. That was two years ago.

Paul is still alive. He is still alive despite being arrested 7 times since we wrapped up that first case two years ago. Since then he was arrested five times for drug possession, and twice for larcenies, the last one being a felony. He is also alive despite being hopelessly addicted to the following (but not limited to) drugs; crack cocaine, cocaine, heroin, meth, alcohol, and tobacco.

Today, Paul is not in jail. He is not in rehab.  He is probably stealing something to pay for a fix. Right now. Yesterday, Paul was ready to surrender himself at the local jail to do an eight month sentence. (Eight months to resolve all of his outstanding cases including the felony case). It's not that Paul wants to go to jail, but that he wants to live. He knows he can't control himself anymore.  He tried rehab several times but it never worked out. He wanted to stay in rehab but got kicked out repeatedly because of insurance issues, or his poor health. He also knows the deal I worked out is good. So why can't he go to jail? 

After two years of work,  I was ready to resolve Paul's final case in court yesterday. Paul could not make it to court because he was in the hospital.  The day before,  Paul could not make it because of the hospital, but we agreed that the judge would simply revoke his release status and he could surrender himself when he was released from the hospital. Finally, I thought, this saga is ending.

Oh how wrong I was. In an incredible turn of events,  the prosecutor argued against Paul going to jail!  The very same prosecutor who for over a year, insisted Paul had to do time, and that time was of the essence. Why? Money.  Because she complained to the judge that Paul only wanted to go to jail so the county would have to be on the hook paying for his health care.

Misconduct was a word that jumped to my mind.  I am all about saving money but the last time I checked, the District Attorney's primary responsibility was to protect the welfare of the community by enforcing the law.  Paul, a self avowed danger to himself, and the people around him, was prepared to surrender himself at the jail. But because of the prosecutor's objection, he is on the street today.

Heckuva job Brownie.


(As an aside, I mentioned Paul was a funny guy.  One time when he was getting processed after an arrest he asked me to stay with him. The officer asked him if he had any tattoos.  He said, "Yes, I have your name tattooed on my ass." After a couple of tense seconds, the officer laughed. Thankfully he had a sense of humor. And sure enough, the words "your name" were tattooed on his ass.  I guess he used the tattoo to win free drinks with bets at bars).