Category Archives: DUI

Bellingham’s Most Dangerous Intersections

Informative article by David Rasbach of the Bellingham Herald reports on statistics provided by the Bellingham Police Department Traffic Division showing Bellingham’s most dangerous intersection.

Apparently, at least in terms of the sheer number of accidents, West Bakerview Road and Northwest Drive reigns as the most dangerous intersection in the city.

In a distracted driving study conducted by its traffic division from January 2016 through June 2017, Bellingham Police received 1,350 reports of accidents within city limits, regardless of severity or injury. Of those, 43 accidents occurred at the intersection of Bakerview and Northwest — the highest total of any intersection in town.

Rasbach also reports that three of the top four most dangerous intersections during the 18-month study were in that same corridor: West Bakerview Road and Eliza Avenuehad the third highest accident total with 22 wrecks, while West Bakerview Road and Cordata Parkway was fourth highest with 18.

The only intersection breaking up Bakerview’s stranglehold on the top of Bellingham’s dangerous intersections list — Lakeway Drive and Lincoln Street, which had 25 reported accidents — is very similar, with two busy shopping centers and a school occupying three of the four corners. Nearby Lakeway Drive and King Street tied for sixth-most dangerous with Woburn Street and Barkley Boulevard with 14 reported accidents, each.

Also, the lone roundabout at Cordata Parkway and West Kellogg Road had 16 accidents reported.

Please contact my office if you, a family member or friend are criminally charged for traffic-related incidents. Unfortunately, it’s very easy to be charged with DUI, Reckless Driving, Negligent Driving, Driving While License Suspended, Eluding and/or numerous traffic citations. Bellingham’s dangerous intersections only exacerbate the situation and make it more likely that an unlawful pretextual pullover will happen.

Most of all, drive safe!

Celebrate the Fourth of July Responsibly

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When celebrating holidays, many people gather with friends and family, decorating their homes and enjoying time together. However, some holiday celebrations often include consuming substances like illegal drugs and alcohol.

In 2016, Americans spent more than $1 billion on cold beverages for their Fourth of July celebrations. That amount was higher than what was spent on burgers and hotdogs, combined. According to CNBC, the Fourth of July is the country’s largest beer-drinking holiday. The popular holiday also surpassed New Year’s as the most dangerous holiday of the year, especially when it comes to traveling on the roadways. According to the Los Angeles Times, there was an average of 127 fatal car crashes each year on July 4 between 2008 and 2012. Of those who died, 41 percent of people had elevated blood alcohol levels.

So how did the day that was meant to celebrate America’s birthday become a day where people choose to drink? The Fourth of July is a federal holiday, which means that most businesses are closed and the employees of those businesses get to enjoy the day off. Jeffrey Spring, a spokesman for the Automobile Club of Southern California, told the Los Angeles Times that it’s more than just celebrating a day off of work. “They tend to try to cram a lot into these weekends and that’s where they get into trouble,” Spring said. In other words, a paid holiday is taken to new heights due to the excitement of having a free day to themselves.

Some advice? Please remember that beneath all the celebration, the Fourth of July is more than just about alcoholic drinks and setting off fireworks. In 1776, the thirteen American colonies declared themselves independent from the British Empire, thus the United States of America was born. Also known as Independence Day, the day celebrates the birth of the country. It can be commemorated in speeches presented by politicians, celebrities hosting private events, or military personnel saluting the United States at noon on the holiday by shooting off a rifle.

The Fourth of July is important to celebrate for its historical significance. This holiday is a time to remind people not only of the hard work and dedication it took to become the country that the United States is today, but to encourage people to live their lives to their fullest potential.

Don’t let the Fourth of July become a catalyst for illegal behavior.

However, please call my office if you, a friend or family member consume intoxicants this Fourth of July and later find yourselves facing criminal charges. It’s imperative to hire responsive and experienced defense counsel when contacted by law enforcement.

DUI For Left-Lane Travel

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In State v. Thibert, the WA Court of Appeals upheld the DUI conviction of a motorist who was pulled over for the traffic infraction of travelling in the far-left lane of the freeway.

BACKGROUND FACTS

Deputy Justin Gerry was on routine patrol one morning in July 2013 on westbound Interstate 82 in Benton County. He observed a silver Chevrolet Impala in the left lane pass a vehicle in the right lane, traveling faster than the posted 70 miles per hour speed limit. The Impala continued to travel in the left lane long after passing the vehicle in the right lane, even though no other vehicles were traveling in the unobstructed right lane. The deputy initiated a traffic stop not for the car’s speed, but for a violation of RCW 46.61.100(2), captioned “Keep right except when passing, etc.”

On approaching the vehicle, which was being driven by Mr. Thibert, Deputy Gerry smelled the odor of fresh marijuana. What looked like a smoking device was hanging from Mr. Thibert’s neck. Mr. Thibert told the deputy he was a medical marijuana patient and used the smoking device to smoke marijuana oil. Deputy Gerry noted that Mr. Thibert had difficulty finishing his sentences and that he “would sometimes stop speaking and just giggle.”

Mr. Thibert agreed to perform field sobriety tests. Based on Mr. Thibert’s performance, Deputy Gerry concluded he was under the influence of marijuana and could not safely operate a motor vehicle. He placed Mr. Thibert under arrest and transported him to the hospital for a blood draw. THC was present in Mr. Thibert’s blood at 55 nanograms. He was charged with driving a motor vehicle while under the influence of marijuana.

Mr. Thibert moved on multiple grounds to suppress evidence obtained as a result of the traffic stop and events that followed. The district court denied the motion. It found among other facts that Mr. Thibert’s “remaining in the left lane, when one could lawfully and safely return to the right lane, is an infraction and provided Deputy Gerry probable cause to stop.” The parties agreed to submit the case to the court for a determination of guilt on stipulated facts. The district court found Mr. Thibert guilty.

Mr. Thibert appealed to the Benton County Superior Court, which affirmed the judgment, dismissed the appeal, and remanded the matter to the district court for sentencing.

Afterward, Mr. Thibert appealed his case to the WA Court of Appeals on the issue of whether Mr. Thibert was stopped unlawfully because the fact that he drove in the left lane, without impeding traffic, did not establish reasonable suspicion for the stop.

COURT’S ANALYSIS & CONCLUSIONS

“At issue is whether RCW 46.61.100(2), on which Deputy Gerry relied in stopping Mr. Thibert, creates a traffic infraction,” said the Court of Appeals.

The WA Court of Appeals said that a reasonable articulable suspicion of a traffic infraction, like a reasonable articulable suspicion of criminal activity, will support a warrantless traffic stop under article I, section 7 of the Washington Constitution. Subsection (2) of RCW 46.61.100, which Mr. Williams contends addresses only the “primary use” of the left lane of a multi-lane highway, states:

“Upon all roadways having two or more lanes for traffic moving in the same direction, all vehicles shall be driven in the right-hand lane then available for traffic, except (a) when overtaking and passing another vehicle proceeding in the same direction, (b) when traveling at a speed greater than the traffic flow, (c) when moving left to allow traffic to merge, or (d) when preparing for a left turn at an intersection, exit, or into a private road or driveway when such left turn is legally permitted.”

Plainly read, RCW 46.63.020 and 46.61.100 make it a traffic infraction to travel in the left lane in the four circumstances identified by RCW 46.61.100(2). The word “shall” in subsection (2) (“all vehicles shall be driven in the right-hand lane then available for traffic, except . . .”) “is presumptively imperative and operates to create a duty.”

Subsection (4), which he contends identifies the only infraction arising from
driving in the left lane, provides: “It is a traffic infraction to drive continuously in the left lane of a multi-lane roadway when it impedes the flow of other traffic.”

The Court further reasoned that, plainly read, RCW 46.63.020 and 46.61.100 make it a traffic infraction to travel in the left lane in the four circumstances identified by RCW 46.61.100(2). The word “shall” in subsection (2) (“all vehicles shall be driven in the right-hand lane then available for traffic, except . . .”) “is presumptively imperative and operates to create a duty.”

The Court disagreed with Mr. Thibert’s contention that if each of subsections (2) and (4) of RCW 46.61.100 identify traffic infractions, then they are irreconcilable or cancel each other out.

“The subsections are reconcilable,” said the Court. “An individual is permitted to drive in the left lane when one of the transient exceptions identified in subsection (2) applies, unless the transient exceptions arise so frequently that the individual’s continuing travel in the left lane is impeding traffic.” Also, because the conduct that was forbidden by the statute can be understood by ordinary people, the Court of Appeals rejected Mr. Thibert’s passing argument that the statute is void for vagueness.

With that, the Court of Appeals upheld Mr. Thibert’s conviction.

Please contact my office if you, a friend or family member face charges of DUI or other traffic-related charges.

5 Types of Alcoholics

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Apparently, there are several types of alcoholics.

Scientists at the National Institute on Alcohol Abuse and Alcoholism (NIAAA) conducted a survey of 43,093 individuals, screening them for alcohol dependence as well as a wide range of other factors. The NIAAA researchers found that there were five distinct patterns of alcohol dependence.

YOUNG ADULT SUBTYPE

This is the most prevalent subtype, making up 31.5 percent of people who are alcohol dependent. The average age of dependent young adults is 25 years, and they first became dependent at an average of age 20. They tend to drink less frequently than people of other types (an average of 143 days a year). However, most of their drinking is binge drinking – they drink five or more drinks on an average of 104 (73 percent) of those days. On drinking days, the average maximum number of drinks is 14. This pattern of alcohol use is more likely to be hazardous than non-binging patterns.

Young adult alcohol dependents are 2.5 times more likely to be male than female. About 75 percent have never been married, 36.5 percent are still in school, and 54 percent work full time. Approximately 22 percent have a first- or second-degree family member who is also dependent on alcohol. Compared to other types of alcoholics, young adults are less likely to have psychiatric disorders or legal problems. Fewer than 1 percent of them have antisocial personality disorder. About 32 percent also smoke cigarettes, and 25 percent also use cannabis.

Only 8.7 percent of young adult alcohol dependents have ever sought treatment for their drinking problem. If they do choose to seek help, they tend to prefer 12-step programs over specialty treatment clinics or private professional practices.

The NIAAA reports that four out of five college students drink alcohol and half of those who do binge drink. They also note that each year, among college students between the ages of 18 and 24:

  • At least 1,825 students die from alcohol-related accidental injuries.
  • Over 690,000 students are assaulted by another student who has been drinking.
  • More than 97,000 students are victims of alcohol-related date rape or sexual assault.
  • About 599,000 students are unintentionally injured while they are under the influence of alcohol.
  • Over 150,000 students develop alcohol-related health problems.
  • About 25 percent of students experience school-related consequences from their alcohol consumption, such as being late to or missing classes, falling behind on coursework, doing poorly on homework, exams or papers, and receiving overall lower grades.

YOUNG ANTISOCIAL SUBTYPE

Young antisocial alcohol dependents make up 21.1 percent of alcoholics – 54 percent of them have antisocial personality disorder (ASPD). ASPD is characterized by at least three of the following:

  • Recurring criminal activities
  • Regular fights or assaults
  • Lack of regard for the safety of others
  • Lack of remorse
  • Impulsiveness
  • Deceitfulness
  • Irresponsibility

They are also young (average age 26 years), and they have the earliest age of onset of drinking (average 16 years) and the earliest age of alcohol dependence (average 18 years). Young antisocial alcoholics drank an average of 201 days in the last year, binge drinking (consuming five or more drinks) on an average of 161 (80 percent) of those days. When they drink, their maximum number of drinks is 17, the highest of any subtype of alcoholic.

About 76 percent of this type of alcoholic are male. Only 7.6 percent have received a college degree, although another 13.4 percent are still in school. Approximately 47 percent are employed full time. Family incomes average around $32,000, the lowest among the subtypes (alongside the chronic severe subtype).

Over half of young antisocial alcoholics (52.5 percent) have a close family member who is also alcohol dependent. In addition, they also have high rates of psychiatric disorders:

They also have high rates of substance abuse:

Almost 35 percent of young antisocial alcoholics have sought help for their alcohol-dependence problems. They tend to go to self-help groups, detoxification programs, and specialty treatment programs, and they have high rates of participation in treatments offered by individual private health care providers.

The NIAAA reports that alcohol and ASPD make for a dangerous combination. People with ASPD are 21 times more likely to develop alcohol dependence in their lifetimes. Meanwhile, alcohol is more likely to increase aggressive behaviors in people with ASPD than in people without. This may be because alcohol interferes with executive functioning in the brain, which regulates and inhibits aggressive behavior. People with ASPD also show impaired executive functioning, which may make them particularly vulnerable to this effect.

FUNCTIONAL SUBTYPE

Functional alcoholics make up 19.4 percent of alcohol-dependent individuals. This group tends to be older (average age 41 years), has a later age of first drinking (average 19 years), and a later onset of alcohol dependence (average age of 37 years). They tend to drink alcohol every other day (an average of 181 days per year), and they consume five or more drinks on an average of 98 (54 percent) of those days. On drinking days, they tend to consume a maximum of 10 drinks.

About 62 percent of functional alcoholics work fulltime, 3.6 percent are in school fulltime, and 5 percent are retired. Nearly 26 percent have a college degree or higher, and average household income is almost $60,000, the highest among any of the subtypes. Approximately 40 percent are female, and nearly 50 percent are married.

About 31 percent of functional alcoholics have a close family member who also has alcohol dependence. They have moderate rates of major depression(24 percent) and smoking cigarettes (43 percent), and low rates of anxiety disorders, other substance use disorders, and the lowest rates of having legal problems (fewer than 1 percent). Fewer than 1 percent of these individuals have antisocial personality disorder.

Only 17 percent of functional alcoholics have ever sought help for their alcohol dependence. Those who do tend to make use of 12-step programs and private health care professionals. Functional alcoholics make up 19.4 percent of alcohol-dependent individuals. This group tends to be older (average age 41 years), has a later age of first drinking (average 19 years), and a later onset of alcohol dependence (average age of 37 years). They tend to drink alcohol every other day (an average of 181 days per year), and they consume five or more drinks on an average of 98 (54 percent) of those days. On drinking days, they tend to consume a maximum of 10 drinks.

INTERMEDIATE FAMILIAL ALCOHOLICS

Intermediate familial alcoholics make up 18.8 percent of all alcoholics. Nearly half (47 percent) of them have a close family member who is also an alcoholic. They have an average age of 38 years, began drinking at almost age 17, and developed alcohol dependence at an average age of 32 years. Intermediate familial alcoholics drink on an average of 172 days a year, consuming five or more drinks on 93 (54 percent) of those days, with a maximum of 10 drinks.

They have the highest rates of employment among alcoholics, with 68 percent working full time and with an average family income of nearly $50,000 a year. Nearly 20 percent have a college degree. About 64 percent are male, while about 38 percent are married and 21 percent are divorced.

Intermediate familial alcoholics have elevated rates of mental illness:

They also have higher rates of substance use/abuse:

  • 57 percent smoke cigarettes
  • 25 percent have cannabis use disorder
  • 20 percent have cocaine use disorder

Almost 27 percent of intermediate familial alcohol dependents have sought help for their drinking problem. They tend to prefer self-help groups, detoxification programs, specialty treatment programs, and individual private health care providers.

CHRONIC SEVERE SUBTYPE

This is the rarest and most dangerous type of alcoholism, making up 9.2 percent of alcoholics. Chronic severe alcoholics average 38 years of age. They begin drinking early (at 16 years) and develop alcohol dependence later (around 29 years of age). This group has the highest rates of drinking, consuming alcohol on an average of 247.5 days a year and binge drinking on 172 (69 percent) of them, with a maximum of 15 drinks.

The majority of chronic severe alcoholics are male (65 percent). They also have the highest divorce rates, with 25.1 percent divorced and 8.6 percent separated, and only 28.7 percent married. Only 9 percent have a college degree, and they also have the lowest employment rate, with only 43 percent of chronic severe alcoholics employed full time and 7.6 percent both unemployed and permanently disabled.

Chronic severe alcoholics have the highest rate of family members who also experience alcohol dependence, at 77 percent. They are most likely to have mental illnesses:

  • 55 percent have depression
  • 47 percent have antisocial personality disorder (the second-highest rate, after young antisocial alcoholics)
  • 34 percent have bipolar disorder
  • 26 percent have social phobia
  • 25 percent have dysthymia
  • 24 percent have generalized anxiety disorder
  • 17 percent have panic disorder

Substance abuse is also common:

  • 75 percent smoke cigarettes
  • 58 percent have cannabis use disorder
  • 39 percent have cocaine use disorder
  • 24 percent have opioid use disorder

Chronic severe alcoholics experience the most pervasive symptoms:

  • Highest rate of emergency room visits related to drinking of any subtype
  • 94 percent drink larger/longer amounts than intended
  • 92 percent drink despite experiencing problems from drinking, such as at work, school, in relationships, or while driving
  • 88 percent experience withdrawal symptoms
  • 83 percent have repeatedly tried to reduce their drinking
  • 64 percent spend significant time recovering from drinking
  • 48 percent reduced meaningful activities, like hobbies or family time, because of alcohol

Almost 66 percent of chronic severe alcoholics have sought help for their alcoholism. They have the highest rates of attendance at self-help groups, detoxification programs, and specialty rehabilitation programs, and the highest rates of treatment in inpatient programs. When seeking treatment, they tend to turn to social workers, psychologists, psychiatrists, and private physicians.

Alcoholism is a debilitating disease. Making matters worse, it can lead people to commit crimes they otherwise would not commit. DUI is the perfect example of a crime which necessarily involves alcohol or drug abuse. Fortunately, there are defenses. Voluntary Intoxication and/or Diminished Capacity might apply. Please contact my office if you, a friend or family member suffer from alcoholism and are charged with a crime. Perhaps good defenses combined with hard work and strong dedication to a alcohol treatment program might persuade the Prosecutor to reduce or dismiss the charges.

Emergency Blood Draws

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In State v. Inman, the WA Court of Appeals held that a warrantless blood draw was proper under exigent circumstances where: (a) the injury collision occurred in a rural area; (b) there is spotty phone service; (c) a search warrant takes 30-45 minutes to create; and (d) helicopters airlifted the DUI suspect to a hospital. A search warrant is not required before a blood sample collected under the exigent circumstances exception is tested for alcohol and drugs.

BACKGROUND FACTS

In May 2015, Inman and Margie Vanderhoof were injured in a motorcycle accident on a
rural road. Inman was the driver of the motorcycle and Vanderhoof was his passenger. Captain Tim Manly, the first paramedic on the scene, observed a motorcycle in a ditch and two people lying down in a driveway approximately 20 to 25 feet away. Captain Manly observed that Inman had facial trauma, including bleeding and abrasions on the face, and a deformed helmet. Based on Inman’s injuries, Captain Manly believed that the accident was a high-trauma incident.

Captain Manly learned from a bystander that Inman had been unconscious for approximately five minutes after the collision before regaining consciousness. Manly
administered emergency treatment to Inman, which included placing Inman in a C-Spine, a device designed to immobilize the spine to prevent paralysis.

While Captain Manly provided Inman with treatment, Sergeant Galin Hester of the Washington State Patrol contacted Vanderhoof, who complained of pelvic pain. Sergeant Hester spoke with Inman and smelled intoxicants on him.

Later, Jefferson County Sheriff’s Deputy Brandon Przygocki arrived on the scene and observed a motorcycle in a ditch with significant front-end damage.  He contacted Inman in the ambulance and, smelling alcohol, asked whether Inman had been drinking and driving. Inman admitted he had been driving the motorcycle and that he had been drinking before he drove.

Deputy Przygocki believed he had probable cause to believe Inman was driving under the influence. Helicopters came to airlift Inman and Vanderhoof to the nearest trauma center. Deputy Przygocki knew that preparation of a search warrant affidavit takes 30-45 minutes. There was no reliable cell phone coverage in the rural area. Deputy Przygocki conducted a warrantless blood draw after reading a special evidence warning to Inman informing him that he was under arrest and that a blood sample was being seized to determine the concentration of alcohol in his blood.

There is a process by which a search warrant for a blood draw may be obtained
telephonically and executed by an officer at the hospital to which Inman was being transported. However, this process is problematic and, in the experience of Officer Hester, had never worked in the past.

TRIAL COURT PROCEDURES

Inman was charged with vehicular assault while under the influence and filed a motion to
suppress evidence of the warrantless blood draw. He argued that the implied consent statute authorized a warrantless blood draw but that the implied consent statute was not constitutional, so there was no valid authority for the blood draw. He also argued that the exigent circumstances exception to the warrant requirement did not justify a warrantless blood draw in this case.

In response, the State argued that Inman’s blood was lawfully drawn pursuant to the exigent circumstances exception to the warrant requirement.

The trial court heard testimony from six witnesses, who testified consistently with the
factual findings summarized above. The trial court orally ruled that exigent circumstances justified the blood draw and later entered written findings of fact and conclusions of law.

Inman filed a reconsideration motion. He argued that there was no probable cause for DUI. He also argued that, even assuming that exigent circumstances justified the warrantless blood draw, a warrant was needed to test the blood. The State disagreed.

The trial court denied Inman’s reconsideration motion. The trial court concluded that Deputy Przygocki had probable cause to believe Inman had committed a DUI. In addition, the trial court concluded that the warrantless blood draw was justified under the exigent circumstances exception to the warrant requirement. Finally, the trial court concluded that because the blood was lawfully seized under exigent circumstances, no warrant was required to test the blood. After a stipulated facts trial, the trial court found Inman guilty of vehicular assault. Inman appealed.

COURT’S CONCLUSIONS AND ANALYSIS

  1. The Arrest Was Supported by Probable Cause.

The Court of Appeals reasoned that under both the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution, an arrest is lawful only when supported by probable cause. Probable cause exists when the arresting officer, at the time of the arrest, has knowledge of facts sufficient to cause a reasonable officer to believe that an offense has been committed. Whether probable cause exists depends on the totality of the circumstances.

Here, Deputy Przygocki had probable cause to believe Inman had committed a DUI. When Deputy Przygocki arrived on the scene, he observed a motorcycle in a ditch with significant front-end damage and, after running the license plates, knew the vehicle belonged to Inman. Deputy Przygocki learned from Sergeant Hester that Inman was in the ambulance and smelled of alcohol. Deputy Przygocki then contacted Inman in the ambulance, and Inman admitted he had been driving the motorcycle and that he had been drinking before he drove.

“Based on these facts, Deputy Przygocki knew that Inman was driving the motorcycle after drinking alcohol when he crashed. This knowledge is sufficient to cause a reasonable officer to believe that Inman was driving a motor vehicle under the influence of alcohol,” said the Court of Appeals.

2. Exigent Circumstances Supported a Warrantless Blood Draw.

The Court of Appeals reasoned that a warrantless search is impermissible under both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution, unless an exception to the warrant requirement authorizes the search. Drawing a person’s blood for alcohol testing is a search triggering these constitutional protections. A warrantless search is allowed if exigent circumstances exist.  The exigent circumstances exception to the warrant requirement applies where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence.

“The natural dissipation of an intoxicating substance in a suspect’s blood may be a factor in determining whether exigent circumstances justify a warrantless blood search, but courts determine exigency under the totality of the circumstances on a case-by-case basis.”

The Court of Appeals held that under the circumstances, obtaining a warrant was not practical. Inman and Vanderhoof were both injured from a motorcycle accident that resulted in significant front-end damage to the motorcycle, which was found in a ditch. Both Inman and Vanderhoof received emergency medical services, and Inman was receiving treatment for possible spine injuries. At the time of the blood draw, helicopters were coming to airlift Inman and Vanderhoof to the nearest hospital. It would have taken at least 45 minutes to prepare and obtain judicial approval for a search warrant. Deputy Przygocki lacked reliable cell phone coverage in the rural area, so obtaining a telephonic warrant may have been a challenge.

CONCLUSION

The Court of Appeals concluded that the trial court did not err in denying Inman’s suppression motion. First, there was probable cause to arrest Inman for DUI. Second, exigent circumstances existed to authorize a warrantless blood draw. Third, the implied consent statute does not bar a warrantless search under exigent circumstances. Finally, a legal blood draw under the exigent circumstances exception allows testing of the blood without a warrant when there is probable cause to arrest for DUI.

My opinion? Exigent circumstances are one of many arguments that the government uses to get around search warrant requirements. Contact my office if you, a friend or family member face criminal charges involving DUI, blood draws, or exigent circumstances which arguably circumvent the need for officers to obtain search warrants. In difficult cases like the one described above, competent legal counsel is definitely needed to protect constitutional rights against unlawful search and seizure.

Wine Glass Sizes Are Increasing

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An article by of the Guardian reports that scientists at the University of Cambridge have found that the capacity of wine glasses has ballooned nearly seven-fold over the past 300 years, rising most sharply in the last two decades in line with a surge in wine consumption.

Wine glasses have swelled in size from an average capacity of 66ml in the early 1700s to 449ml today, the study reveals – a change that may have encouraged us to drink far more than is healthy. Indeed, a typical wine glass 300 years ago would only have held about a half of today’s smallest “official” measure of 125ml.

Smithers reports that the university’s behaviour and health research unit quizzed antique experts and examined 18th-century glasses held at the Ashmolean museum in Oxford, glassware used at Buckingham Palace, and more recent glasses in John Lewis catalogues.

The evidence was clear: the newer glasses were bigger.

The study, published on Wednesday in the BMJ, measured wine glass capacity from 1700 to the present day to help understand whether any changes in their size might have contributed to the rise in wine consumption.

“Wine will no doubt be a feature of some merry Christmas nights, but when it comes to how much we drink, wine glass size probably does matter,” said Prof Theresa Marteau, director of the Behaviour and Health Research Unit at the University of Cambridge, who led the research.

In 2016, Marteau and her colleagues carried out an experiment at the Pint Shop in Cambridge, altering the size of wine glasses while keeping the serving sizes the same. They found this led to an almost 10% increase in sales.

Smithers reports that for the new study, the researchers obtained measurements of 411 glasses from 1700 to the modern day. They found wine glass capacity increased from 66ml in the 1700s to 417ml in the 2000s, with the mean wine glass size in 2016-17 even higher at 449ml.

“Wine glasses became a common receptacle from which wine was drunk around 1700,” says author Dr. Zorana Zupan. “This followed the development of lead crystal glassware by George Ravenscroft in the late 17th century, which led to the manufacture of less fragile and larger glasses than was previously possible.”

The study points out that alcohol is the fifth largest risk factor for premature mortality and disability in high income countries. In England, the type of alcohol and volume consumed has fluctuated over the last 300 years, in response to economic, legislative and social factors. Significantly, wine consumption increased almost fourfold between 1960 and 1980, and almost doubled again between 1980 and 2004, a trend attributed to better marketing and licensing liberalisation which allowed supermarkets to compete in the lucrative drinks retail business.

“Our findings suggest that the capacity of wine glasses in England increased significantly over the past 300 years,” added Zupan.

“Since the 1990s, the size has increased rapidly. Whether this led to the rise in wine consumption in England, we can’t say for certain, but a wine glass 300 years ago would only have held about a half of today’s small measure.”

The strength of wine sold in the UK has also increased since the 1990s, adding to the amount of pure alcohol being consumed by wine drinkers.

In England, wine is increasingly served in pubs and bars in 250ml servings, with smaller measures of 125ml often absent from wine lists or menus despite a regulatory requirement that licensees make customers aware of them.

The Wine and Spirits Trade Association said sociological trends were probably part of the reason for the growing wine glasses.

“The size of a wine glass reflects the trend and fashions of the time and is often larger for practical reasons” said the WSTA chief executive Miles Beale. “Red wine, for example, is served in a larger glass to allow it to breathe, something which perhaps wasn’t a priority 300 years ago.”

Drink responsibly. If, however, your family or friends are charged with DUI or face any other alcohol-related charges, then contact my law offices and schedule a free consultation. You need effective and competent representation before the judge, prosecutors and the Department of Licensing.

Who Is The Toxicologist?

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In the deeply divided 5-4 court decision State v. Salgado-Mendoza, the WA Supreme Court held that the trial court did not abuse its discretion in denying the defendant’s motion to suppress the toxicologist’s testimony under CrRLJ 8.3(b) even though the defendant was not informed which State toxicologist would testify.

I originally discussed this case in my blog titled, “Prosecutors Must Reveal Toxicologist Identities in DUI Trials.” At that time, the WA Court of Appeals Division II reversed the defendant’s DUI conviction because the Prosecutor failed to give Defense Counsel the name of their Toxicologist expert witness before trial.

On appeal, however, the WA Supreme Court decided differently. It overturned the Court of Appeals and said the trial court, in fact, was correct in denying the defendant’s motion to suppress the toxicologist’s testimony.

BACKGROUND FACTS

On the evening of August 11, 2012, a Washington State Patrol trooper stopped and arrested Mr. Salgado-Mendoza for DUI. His BAC test showed a blood alcohol concentration of 0.103 and 0.104; which is over the .o8 limit.

Before trial, the State initially disclosed the names of nine toxicologists from the Washington State Patrol toxicology laboratory, indicating its intent to call “one of the following.” It whittled the list to three names the day before trial, but did not specify which toxicologist it would call until the morning of trial, noting that it provided the witness’s name “as soon as we had it and that’s all that we can do in terms of disclosure.”

Mendoza moved to suppress the toxicologist’s testimony under CrRLJ 8.3(b) based on
late disclosure, asking the court to “send a message to the state patrol crime lab and
say this isn’t okay anymore.” The trial court refused, finding no actual prejudice to the defense and observing that the practice of disclosing a list of available toxicologists rather than a specific witness was driven more by underfunding of the crime labs than by mismanagement.

Salgado-Mendoza appealed to the superior court, which found the district
court had abused its discretion. The Court of Appeals affirmed, reasoning that the
delayed disclosure violated the discovery rules and caused prejudice. Again, however, the WA Court of Appeals disagreed.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reasoned that while the State’s disclosure practice amounted to mismanagement within the meaning of CrRLJ 8.3(b), Salgado-Mendoza has not demonstrated actual prejudice to justify suppression.

The majority Court explained that under CrRLJ 8.3(b), the party seeking relief bears the burden of showing both misconduct and actual prejudice.

“In this case, Salgado-Mendoza can demonstrate misconduct within the meaning of the rule, but not actual prejudice. He can prove misconduct because a discovery violation need not be willful—simple mismanagement will suffice. Here, the State’s failure to at least narrow the list of possible toxicology witnesses pretrial reflects mismanagement,” said the Court. “However, Salgado-Mendoza cannot show prejudice that wan’ants complete suppression of the toxicologist’s testimony.”

With that, the WA Supreme Court held that Mr. Mendoza has not demonstrated actual prejudice to justify suppression of the toxicologist’s testimony. “Because there was no abuse of discretion, we reverse the Court of Appeals.”

THE DISSENT

Justice Madsen authored the dissenting opinion. She was joined by Justices Yu, Gordon McCloud and Johnson.

In short, the dissenting judges disagreed with the majority because they believed the defendant was prejudiced by this delayed disclosure of the possible toxicologists who would testify. They reasoned that forcing a defendant to bear the burden of preparing to cross-examine a long list of witnesses when the State only intends to call one is not how our system of justice operates.

“The State cannot cite funding deficiencies and simply shift its burden of prosecution onto defense counsel,” wrote Judge Madsen. “If the State wishes to pursue prosecution, it must allocate sufficient resources to its departments so that they may operate in a way that is consistent with a defendant’s right to a fair trial.”

“By under-staffing the State’s toxicology laboratory so that they cannot confirm who will testify until the day of trial, the State is not meeting this burden and defendants are being forced to compensate for the deficiency. Therefore, I would find that the trial court abused its discretion by denying Salgado-Mendoza’s motion to suppress the toxicologist’s testimony.”

My opinion? I must agree with the dissenting opinion. Under the Sixth Amendment and the WA Constitution, The State bears the burden of proving their charges beyond a reasonable doubt. Also, the State must follow discovery rules under CrR 4.7. One of the State’s discovery obligations is to name their witnesses who they call to testify. Period. Collateral issues revolving around the State’s under-staffing and a lack of funding should not excuse violating a defendant’s Constitutional rights.

Sessions on WA Marijuana

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Random UA’s & Privacy

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In State v. Olsen, the WA Supreme Court held that although random urinalysis tests (UAs) do implicate the privacy interests of a defendant who is on probation (probationer), the testing does not violate the defendant’s Constitutional rights if the UAs purpose was to  monitor compliance with a valid probation condition requiring the defendant to refrain from drug and alcohol consumption.

BACKGROUND FACTS

The facts are undisputed. In June 2014, defendant Brittanie Olsen pleaded guilty in Jefferson County District Court to one count of DUI, a gross misdemeanor offense under RCW 46.61.502. The court imposed a sentence of 364 days of confinement with 334 days suspended. As a condition of her suspended sentence, the court ordered that Olsen not consume alcohol, marijuana, or non prescribed drugs. Over defense objection, the court also required Olsen to submit to “random urine analysis screens … to ensure compliance with conditions regarding the consumption of alcohol and controlled substances.”

Olsen appealed to Jefferson County Superior Court, arguing that the random UAs requirement violated her privacy rights under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. She contended a warrantless search of a misdemeanant probationer may not be random but instead “must be supported by a well-founded suspicion that the probationer has violated a condition of her sentence.” The court agreed, vacated Olsen’s sentence, and remanded to the district court for resentencing without the requirement that Olsen submit to random urine tests.

The State appealed, and the Court of Appeals reversed, holding that “offenders on probation for DUI convictions do not have a privacy interest in preventing the random collection and testing of their urine when used to ensure compliance with a probation condition prohibiting the consumption of alcohol, marijuana, and/or non prescribed drugs.

ISSUE

The WA Supreme Court addressed the issue of whether random UAs ordered to monitor compliance with a valid probation condition not to consume drugs or alcohol violate a DUI probationer’s privacy interests under article I, section 7 of the Washington Constitution.

COURT’S CONCLUSIONS & ANALYSIS

The Supreme Court held that the random UAs here were conducted with “authority of law” under article I, section 7 of our state constitution. Furthermore, although random UAs of DUI probationers do implicate privacy interests, the UAs here are narrowly tailored and imposed to monitor compliance with a valid probation conditions.

The Court reasoned that The Washington State Constitution says that no person shall be disturbed in his private affairs, or his home invaded, without authority of law. One area of increased protection is the collection and testing of urine.

“Compared to the federal courts, we offer heightened protection for bodily functions,” said the Court. It elaborated that our courts have generally held that for ordinary citizens, suspicionless urinalysis testing constitutes a disturbance of one’s private affairs that, absent authority of law, violates the WA Constitution.

“On the other hand, we have repeatedly upheld blood or urine tests of prisoners, probationers, and parolees of some cases without explicitly conducting an analysis under the WA Constitution,” said the Court. It elaborated that two questions must be answered in cases like this: (1) whether the contested state action disturbed a person’s private affairs and, if so, (2) whether the action was undertaken with authority of law.

a. UAs Implicate a DUI Probationer’s Privacy Interests.

“We have consistently held that the nonconsensual removal of bodily fluids implicates privacy interests,” said the Court. It further stated that UAs implicate privacy interests in two ways. First, the act of providing a urine sample is fundamentally intrusive. This is particularly true where urine samples are collected under observation to ensure compliance. Second, chemical analysis of urine, like that of blood, can reveal a host of private medical facts about a person, including whether he or she is epileptic, pregnant, or diabetic. “These privacy interests are precisely what article I, section 7 is meant to protect.”

However, the Court also said that probationers do not enjoy constitutional privacy protection to the same degree as other citizens.

“Probationers have a reduced expectation of privacy because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls,” said the Court.  Therefore, the State may supervise and scrutinize a probationer more closely than it may other citizens. “However, this diminished expectation of privacy is constitutionally permissible only to the extent necessitated by the legitimate demands of the operation of the parole process.”

The Court then addressed the State’s argument that UAs do not implicate Olsen’s privacy interests because probationers lack any privacy interest in their urine.

“We disagree,” said the Court. “Even though misdemeanant probationers have a reduced expectation of privacy, this does not mean that they have no privacy rights at all in their bodily fluids.” After giving a detailed analysis under the precedent of State v. Surge, the Court summarized that, even though probationers do not enjoy the same expectation of
privacy as other citizens, the UAs here still implicate their reduced privacy
interests under the WA Constitution.

b. Random UAs of DUI Probationers Do Not Violate the WA Constitution Because They Are Conducted with Authority of Law.

Next, the Court addressed whether the UA was performed with authority of law. In short, the Court decided that issue in the affirmative. It said the State has a strong interest in supervising DUI probationers in order to promote rehabilitation and protect the public, and elaborated that probation is simply one point (or, more accurately, one set of points) on a continuum of possible punishments.

It elaborated that probation is not a right, but an act of judicial grace or lenience motivated in part by the hope that the offender will become rehabilitated. To that end, a sentencing court has great discretion to impose conditions and restrictions of probation to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large.

“As such, the State has a compelling interest in closely monitoring probationers in order to promote their rehabilitation,” said the Court. “As probation officers’ role is rehabilitative rather than punitive in nature, they must, then, have tools at their disposal in order to accurately assess whether rehabilitation is taking place.” Here, in the case of DUI probationers, the Court reasoned that monitoring and supervision ensure that treatment is taking place and serve to protect the public in the case that a probationer fails to comply with court-imposed conditions.

The court further reasoned that random UAs are narrowly tailored to monitor compliance with probation conditions, they are an effective monitoring tool and they are a permissible under these circumstances:

“Unannounced testing is, arguably, crucial if a court is to impose drug testing at all. Random testing seeks to deter the probationer from consuming drugs or alcohol by putting her on notice that drug use can be discovered at any time. It also promotes rehabilitation and accountability by providing the probation officer with a ‘practical mechanism to determine whether rehabilitation is indeed taking place.'”

Finally, the WA Supreme Court reasoned that random UAs, under certain circumstances, are a constitutionally permissible form of close scrutiny of DUI probationers. It found that
the testing here was a narrowly tailored monitoring tool imposed pursuant to a valid prohibition on drug and alcohol use. Random UAs are also directly related to a probationer’s rehabilitation and supervision.

With that, the Court concluded  that the random UAs here were conducted with “authority of law” under article I, section 7 of our state constitution and affirmed the Court of Appeals decision to invoke them.

Invalid Search Warrant

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In State v. Youngs, the WA Court of Appeals suppressed evidence of the defendant’s blood test collected after a search warrant because the search warrant application did not contain sufficient facts to establish that the suspect was driving the car.

BACKGROUND FACTS

In the early morning hours of May 15, 2013, a Washington State Patrol Trooper arrested Youngs after driving a car involved in a rollover collision. The judge issued the warrant based on the Affidavit in Support of Search Warrant for Evidence of a Driving While Under the Influence of Intoxicants (DUI).

This affidavit is a largely preprinted form to which the law enforcement officer may add information.

Following the blood draw, the State charged Youngs with DUI. Youngs moved to suppress evidence obtained under authority of the warrant. The district court denied the motion. Youngs then agreed to a stipulated bench trial based on the police report and blood alcohol report. The district court found Youngs guilty and sentenced him.

Youngs sought review in the superior court. The Court affirmed based on the content in the state trooper’s affidavit. Eventually, the WA Court of Appeals granted Youngs’s appeal.

ISSUE

The question was whether the trooper’s search warrant affidavit had sufficient facts for a judge to make an independent decision whether there was probable cause that the defendant was driving.

COURT’S DECISION & ANALYSIS

 

The Court decided that although the factual information concerning intoxication is sufficient and unchallenged in this case, the factual information to establish driving is insufficient.

The Court reasoned that a judge may only issue a search warrant upon probable cause. The warrant must be supported by an affidavit identifying the place to be searched and the items to be seized. The affidavit must contain sufficient facts to convince an ordinary person that the defendant is probably engaged in criminal activity.

Furthermore, the Court reasoned that judges must evaluate the relevant affidavit “‘in a commonsense manner, rather than hypertechnically, and any doubts are resolved in favor of the warrant. Thus, a “negligent or innocent mistake” in drafting the affidavit will not void it. Also, judges may draw reasonable inferences from the stated facts.

However, the Court also reasoned that inferences alone, without an otherwise substantial basis of facts, are insufficient. The affidavit may provide summary statements so long as it also expresses the facts and circumstances underlying that summary.

Here, the Court found technical problems with the affidavit. For example, one problem is that the preprinted language in the form—”ceased driving/was found in physical control of a motor vehicle” — suggests that it is intended to apply to two different crimes. One crime is “Driving While Under the Influence under RCW 46.61.502, while the other is “Physical Control of Vehicle While Under the Influence under RCW 46.61.504, which is a totally separate and different crime with different elements for the State to prove:

The Court said that unlike the act of driving, which may be readily observed, “physical control” is a conclusion drawn from other facts. For example, a police officer may reach this conclusion based on the defendant’s proximity to the vehicle, possession of keys to it, or similar observable circumstances.  Because the magistrate must independently determine whether probable cause exists, he or she cannot simply accept such a conclusion without supporting allegations. Therefore, ruled the Court, the statements in the search warrant affidavit are conclusory, general, and insufficient to support probable cause that Youngs was driving the vehicle.

With that, the Court reversed Youngs’ conviction and remanded the case back to the district court with directions to suppress the evidence obtained by the warrant.

My opinion? Excellent decision. Sure, it’s sometimes safe to assume that the sole driver of a car involved in a collision is, in fact, the driver. However, it muddies the waters even further when law enforcement officers issuing search warrants fail to clarify whether the crime of straight DUI or Physical Control DUI took place. These crimes are very different. One crimes involves officers seeing the defendant drive (straight DUI) while the other crime does not (Physical Control DUI). Combined with the fact that there was missing information regarding the defendant’s driving at all, this combination of errors makes for an ineffective search warrant.

Again, good decision.