Category Archives: felony

When Prosecutors Violate the Advocate-Witness Rule: United States v. Rangel-Guzman

Constitutional Rights, Drug Offenses, felony, law enforcement, marijuana, police, Prosecutorial Misconduct, Search and Seizure, , ,

 

Motion for Disqualification Based on “Witness-Advocate Rule” Deemed “Premature” | Westchester Commercial Division Blog

In U.S. v. Rangel-Guzman, the 9th Circuit holds that a prosecutor commits error by phrasing cross-examination questions regarding a witnesses’ prior inconsistent statements as “but you told us” and “I asked you and you said.” Such questions violate the advocate-witness rule.

The defendant was arrested at the border while trying to transport 91.4 kilos of marijuana into the U.S. The marijuana was hidden in a compartment behind his backseat.

The defendant was arrested and charged with the federal offenses of Unlawful Possession With intent to Distribute. While the case was pending, the Federal prosecutor interviewed the defendant. Eventually, the case went to trial.

 At trial, and during cross-examination, the Assistant United States Attorney repeatedly attempted to impeach Rangel-Guzman by referring to a meeting between herself, Homeland Security Agent Baxter, Rangel-Guzman and Rangel-Guzman’s attorney. In doing so, the Prosecutor made it clear that she had questioned Rangel-Guzman and that he had made certain statements inconsistent with his current testimony: “You told us that you and your mother ran into Martha . . . You told us that four or five months before . . . That’s what you told us last week . . . Don’t you remember that I was shocked that you were saying it was four to five months before you got arrested?”

The court reasoned that the Prosecutor engaged in improper vouching by effectively acting as a witness. Vouching occurs when a prosecutor “places the prestige of the government behind the witness or indicates that information not presented to the jury supports the witness’s testimony.” United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980).

The Advocate-Witness Rule prohibits attorneys from testifying in a trial they’re litigating; the rule “expresses an institutional concern, especially pronounced when the government is a litigant, that public confidence in our criminal justice system not be eroded by even the appearance of impropriety.” United States v. Prantil, 764 F.2d 548, 553 (9th Cir. 1985).

Here, the prosecutor made a number of statements that used variations on “but you told us” and “I asked you and you said,” as well as assertions of fact about what had occurred during the meeting: “Well, we went over and over it, Mr. Rangel,” “Do you remember last week I specifically asked you multiple times who accompanied you to the Quinceanera?” And she left no doubt about her personal feelings during the meeting: “Don’t you remember that I was shocked that you were saying that it was four to five months before you got arrested that you met Martha?”

 When a prosecutor interviews a suspect prior to trial, the “correct procedure” is to do so “in the presence of a third person so that the third person can testify about the interview.”

The court concluded that undoubtedly, the Prosecutor was asking the jury to choose whether to believe her or the defendant. This was highly improper and unfair to the defendant.

 Despite the error, the court affirmed the conviction because the case against the defendant was so strong. In other words, the defendant failed to show that the outcome of the trial would have been different, had the error not occurred. For these reasons, the 9th Circuit affirmed the conviction.
My opinion? Interesting ruling. I’m satisfied the 9th Circuit actually took the case on appeal. It’s also pleasing they recognize when Prosecutors violate the Advocate-Witness Rule. It’s an important rule. Too often, Prosecutors lean on their own credibility when trying cases. This is a very subtle and damaging strategy because jurors have a tendency to want to believe everything a Prosecutor says!
This is very dangerous, however, when Prosecutors unlawfully insert themselves into proceedings and testify as witnesses. The Court was correct in saying that the Prosecutor should have called Agent Baxter to testify. Good opinion.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Roden: Text Messages Are Protected by Washington’s Privacy Act

Constitutional Rights, Drug Offenses, felony, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

Washington Privacy Act: Amendments jeopardize protections for consumers | The Seattle Times

Good opinion.

In State v. Roden, the WA Supreme Court ruled that Washington’s Privacy Act is violated by an officer’s warrantless opening, reviewing, and responding to text messages sent to a suspect’s phone, before the suspect viewed the message.

In State v. Roden, Daniel Lee was arrested for possession of heroin. After the arrest, a police detective spent 5 to 10 minutes browsing through Lee’s cell phone. The detective noticed several text messages from Jonathan Roden. The detective arranged a drug deal with Roden via text messages. Roden was arrested for Attempted Possession of Heroin. The trial court denied Roden’s motion to suppress and found Roden guilty. On appeal, Roden argued that the detective’s conduct violated Washington’s Privacy Act.

The Washington Supreme Court agreed with Roden. It reviewed  the Privacy Act act and analyzed the following excerpt in pertinent part: “[I]t shall be unlawful for … the state of Washington, its agencies, and political subdivisions to intercept, or record any: (a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.”

Furthermore, RCW 9.73.050 declares that evidence obtained in violation of the act is inadmissible for any purpose at trial.

Against this backdrop, the court gave the four-part analysis under State v. Christensen to be considered when analyzing alleged violations of the privacy act. There must have been (1) a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit ( 4) without the consent of all parties to the private. Roden stated the communications in the text message were intended to be private when intercepted by the detective posing as Lee.

Applying those factors, the Court reasoned that Washington’s privacy act was violated because the detective intercepted private communications without Lee’s or Roden’s consent or a warrant.

My opinion? Good decision. In my experience, this type of situation happens quite often. It’s entrapment, plain and simple. And it  violates a defendant’s rights in the process. Contact an experienced criminal defense attorney if you’re facing similar circumstances. Your privacy matters!

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Barry: Whether a Defendant’s Demeanor Spells Trouble During Trial

Constitutional Rights, felony, Self-Incrimination, Sex Crimes, Washington Court of Appeals, , ,

Demeanor, Demeanor, Demeanor - Trial Practice Tips

In State v. Barry, the WA Court of Appeals decided it does NOT violate a defendant’s Constitutional rights to allow a jury to consider the defendant’s in-court demeanor during trial.

The State charged Barry with first degree child molestation (DV). The case proceeded to trial. Important to note, Barry chose not to testify. During deliberations, the jury sent a note asking the court, “Can we use as ‘evidence for deliberation,’ our observations of the defendants actions and demeanor during the court case?” The trial court instructed the jury, “Evidence is what you witness in the courtroom.” Barry objected to the jury instruction. The jury found Barry guilty as charged. Barry appealed.

The Court of Appeals reasoned that the trial judge misstated the law in giving that instruction because the defendant did not testify; and therefore, his demeanor was not evidence presented during trial.

Nevertheless, the Court of Appeals rejected arguments that Barry’s 5th Amendment rights against self-incrimination were violated. It stated, “Here, neither the State nor the trial court forced Barry to do anything with regards to his demeanor. He had full control over how he acted in the courtroom. Other than citing the Fifth Amendment, Barry does not explain how he was compelled to give evidence against himself. We hold that allowing the jury to consider the defendant’s demeanor as evidence does not violate the Fifth Amendment.”

Finally, the Court of Appeals discussed the absence of any discussion on the record regarding Barry’s demeanor. In other words, there was a lack of record on how Barry behaved. The Court said the following:

“Without any information identifying what demeanor the jury may have considered, it is impossible to know whether that consideration was favorable or unfavorable to Barry. In the abstract, a defendant’s behavior is neutral. Depending on the demeanor, a jury could draw a negative inference or a positive inference from how the defendant acts during trial. As a result, merely stating that a jury may have considered a defendant’s demeanor without any information about that demeanor cannot establish prejudice because that consideration may have favored the defendant.”

My opinion? This case is tough. I’ll agree with the Court of Appeals in saying that what we don’t know is the pink elephant in this room. I’ve had many jury trials. During preparations, I thoroughly inform defendants how to properly behave in court. And yes, it’s extremely difficult for many defendants to stay calm and stoic during trial. Most defendants are very emotional about the case, especially if they believe the State’s witnesses are lying and/or exaggerating  during testimony.

Consequently, the decision on whether to testify is a strategic one. And this decision – whatever it may be – can backfire for many reasons. Typically, jurors want to hear defendants testify. However, if a defendant does not testify, then human nature dictates that juries perceive how the defendants acts during trial.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Whatcom County Domestic Violence Filings Increase

Assault, Domestic Violence, felony, law enforcement, misdemeanor, police, , ,

Coronavirus: Domestic violence 'increases globally during lockdown' - BBC News

The Bellingham Herald reported that in 2012, more protection orders were filed in Whatcom County. Also, more people were booked into jail for Domestic Violence.

This information was found in the 10th Annual Report About Domestic Violence. Report highlights for 2012 included the following:

* Law enforcement reported 1,387 domestic violence offenses in Whatcom County, down slightly from 1,422 in 2011. Nearly 55 percent were assaults and 30 percent were violations of protection or no-contact orders.

* The number of domestic violence protection orders filed in Whatcom County courts went up in 2012. At 427, it was the highest since 2004.

* Domestic violence made up 20 percent of Whatcom County Jail bookings in 2012, an increase from previous years and double the 10 percent of all jail bookings in 2011.

My opinion? Domestic violence is an AWFUL dynamic to have in a relationship. The effects of domestic violence wreak havoc on relationships, reputations and families.

However, most couples are not involved in ongoing domestic violence relationships. The vast majority of these situations involve a couple who argued a little too passionately, perhaps under the influence, and police are contacted. Unfortunately, when the criminal justice system gets involved, the wheels are very hard to stop.

For example, most people are unaware that under RCW 10.99, officers MUST arrest a primary aggressor and immediately take them to jail. Additionally, most defendants MUST move out of their own homes while the case is pending. This is a substantial hardship.

And defendants who are convicted of domestic violence crimes risk being incarcerated, paying court fines and restitution, obtaining domestic violence evaluations, undergoing treatment, being monitored by probation, losing their gun rights, and obeying court orders preventing them from communicating with family members. Finally, a domestic violence conviction carries a negative stigma which may deter employment opportunities.

Take my word, these types of charges probably won’t get reduced or dismissed quickly. Most prosecutors and judges want to continue these cases out to see if people will violate no-contact orders. Indeed, many defendants end up facing more criminal charges if they accidentally or intentionally violate a no-contact order. A vindictive and/or vengeful “victim” may invite communication and persuade a defendant to violate the court’s no-contact order.

I’ve seen this happen many times. And once a victim has proof that a contact happened, they can – and most will – contact the police and pursue additional charges of Violating a No-Contact Order (NCOV). These are particularly nasty charges which are very difficult to defend against. An NCOV charge damages the defendant’s bargaining position in reducing and/or dismissing the underlying domestic violence charge that got them in trouble in the first place!

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Green: When Inventory Searches Become Overbroad

Constitutional Rights, DUI, felony, law enforcement, police, Pretrial Investigations, Privacy, Search and Seizure, Search Warrant, Theft, Washington Court of Appeals, Washington State Patrol, , ,

Vehicle Inventory Search - Daigle Law Group

In State v. Green, the WA Court of Appeals decided that evidence of Identity Theft  was not admissible when the officer obtained the evidence after searching the defendant’s car during a DUI and Hit & Run investigation.

Mr. Green was arrested for DUI after his vehicle struck a pedestrian who later died. After arrest, police searched Mr. Green’s car. They found a paper bag containing numerous receipts. After more investigating,  it was later determined the receipts were evidence of purchases using stolen credit cards. The car was later towed to a police impound lot. The officer began investigating the defendant for theft/fraud charges in addition to the Vehicular Homicide charge. However, the officer’s search warrant was only specific to the Vehicular Homicide charge.

A few days later, the officer obtained a second search warrant to search the car for evidence of fraud and identity theft. Mr. Green moved to suppress the receipts. The state argued the receipts were properly seized pursuant to an inventory search and were admissible pursuant to the independent source doctrine.

Some background is necessary. Under the 4th Amendment to the U.S Constitution and article I section 7 of the Washington Constitution, warrantless searches and seizures are unconstitutional. However one exception to the warrant requirement are Inventory Searches accompanying a lawful vehicle impound. The purpose of an inventory search is to (1) protect the vehicle owner’s property; (2) protect the police against false claims of theft by the owner, and (3) protect the police from potential danger.

The direction and scope of an inventory search must be limited to the purpose of justifying the exception. Under the Independent Source Exception, evidence obtained by unlawful governmental action is not suppressed under the exclusionary rule if the evidence was obtained pursuant to a valid search warrant or other lawful means independent of the unlawful action.

In this case, the officer did not find the receipts as part of an inventory search. Stated different, the officer looked in the paper bag but did not consider the receipts to be relevant to the inventory search. Therefore, there was no evidence that he inventoried them. The officer seized the receipts for investigatory purposes on a different matter altogether, namely, the soon-to-be-pending Identity Theft charges.

 

The Court further reasoned the receipts were not admissible under the Independent Source doctrine because the officer neither found the receipts nor had knowledge of them through an independent source.

My opinion? This was a reasonable, practical approach. In this case, it makes no sense to allow the police to conduct investigations of different crimes other than the one they are already working on, especially if they lack independent evidence to begin with.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Seafair 2013 Brought Less Arrests for Boating Under the Influence.

Blood Test, Boating Under the Influence, Drug Offenses, DUI, felony, law enforcement, marijuana, misdemeanor, police, Washington State Patrol, , ,

Washington's New Boating Under the Influence 'Implied Consent' Law

The numbers are out: 34 people were cited for boating under the influence of drugs or alcohol (BUI) during the Seafair events on Lake Washington this weekend. This shows a drop of more than 40 percent from last year’s Seafair BUI total, which was 61.

Matching the decrease, however, was the fact that Seafair’s ticket sales also decreased dramatically. Seafair officials said that since it’s an open festival, exact numbers weren’t available, but ticket sales at the log boom were down 20 percent.

Police contacted 473 boats, down 32 percent from last year’s event, and doled out 42 citations for speeding or unsafe lane changes, among other infractions. Medical assistance was called for four boaters. Of those contacted, 15 refused breath tests. Nowadays, refusing a breath test carries a fine of $2,050.

Of the 34 people charged with BUIs, four were booked and taken to jail. Others were pulled over and told to have someone come pick them up. Four search warrants were served for blood samples and one for search of a vessel resulted in a drug arrest.

RCW 79A.60.040 is Washington’s Boating Under the Influence Statute. In short, It prevents people from operating a boat while under the influence of intoxicating liquor or any drug. A person is considered to be under the influence of intoxicating liquor or any drug if the person has 0.08 grams or more of alcohol. This can be proven by breath tests of a blood test. Drugs and/or the combination of drugs and alcohol may also constitute Boating Under the Influence.

Unlike DUI, Boating Under the Influence is a simple misdemeanor. It isn’t viewed as seriously as DUI, and carries less punishment as far as court fines and jail time is concerned. Still, the court may still order the defendant to pay restitution for any damages or injuries resulting from the offense. Additionally, a BUI charge/conviction can negatively impact a Skipper’s license to operate their vessel.

And it only gets worse. If someone is seriously injured at the hands of an intoxicated boat operator, that operator can be charged under RCW 79A.60.60, a Class B felony. And if someone dies as a result as a proximate cause of the operation of any vessel by an intoxicated person, that person will be charged with a Class A felony under RCW 79A.60.50. Finally, any operator of a boat who willfully fails to stop when requested or signaled to do so by a law enforcement officer is guilty of a gross misdemeanor under RCW 79A.60.080.

Hire an attorney if you find yourself charged with any of the above-referenced water related crimes. You’ll need all the help you can get. Nowadays, consuming two beers while enjoying your vessel can easily get you in trouble.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Are Washington’s New Proposed DUI Laws Unconstitutional?

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, felony, Firearm, Ignition Interlock Device, law enforcement, Legislation, marijuana, misdemeanor, police, Washington State Patrol, , ,

9 Things You Should Know If You're a Repeat DUI Offender

Gov. Jay Inslee shall sign into law a measure to increase monitoring of motorists who repeatedly drive under the influence.

Under the revised bill to be signed this morning in Tacoma, drivers charged with a second impaired driving offense would face mandatory arrest AND booking in jail AND have an interlock device installed on their vehicles within five days of being charged. The state would also begin a pilot program to conduct daily alcohol monitoring on a person convicted twice under the DUI law.

Finally, the State will give counties and cities more money to prosecute and punish DUI offenders quicker. The law, sparked by tragic accidents earlier this year, is a scaled back version of an initial plan that would have increased minimum jail times for offenders.

My opinion? More and more, we are witnessing the erosion of our rights when it comes to DUI legislation and enforcement. There are four basic legal issues when it comes to DUI: (1) whether the stop conducted by the police was lawful, (2) whether the officer had enough evidence to arrest for DUI, (3) whether the defendant was informed of the Implied Consent law, and (4) whether the defendant’s breath test was over .08 and/or whether the defendant refused the test. These four basic issues bring LOTS of sub-issues; which is the stuff of good lawyering and effective pretrial motions to suppress and/or dismiss the case.

Most people don’t know that DUI charges bring separate actions from both the Department of Licensing (DOL) and the City/State Prosecutor. The DOL will try revoking or suspending your license. Following that, they’ll order defendants to obtain an Ignition Interlock Device (IID) and an Ignition Interlock Device License (IIDL) if the defendant wants to continue driving.

To combat this, defendants are entitled to a DOL hearing if they want to stop the DOL from suspending/revoking the license. The hearing costs $375.00. A good attorney will brief the legal issues and request a hearing before the DOL’s Hearing Examiner in order to persuade the Hearing Examiner to NOT suspend/revoke the defendant’s license.

Problematically, it appears Inslee’s new DUI legislation circumvents the DOL process altogether. It appears a defendant’s car will be automatically installed with an IID 5 days after arrest. Defendants will be closely monitored while their case is pending. In all likelihood, they’ll be forced to take time out of their day to appear before their probation officer and succumb to UA and/or portable breath testing. All of these actions assume the defendant is guilty. They violate the “innocent until proven guilty” standard.

Also, the bill’s enforcement of pretrial orders for IIDs violates State v. Rose, 146 Wn.App. 439 (2008). That case held government programs which require the defendant to pay fees/costs before conviction are unconstitutional. Additionally, these provisions may violate Art. 1 Section 22 of the WA Constitution by requiring advancement of money before conviction.

Now, more than ever, it’s imperative to find a competent defense attorney to help maneuver the pitfalls of our increasing anti-DUI legislation.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Proposed Changes in DUI Laws: Draconian or Timely?

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, felony, Ignition Interlock Device, law enforcement, Legislation, marijuana, misdemeanor, police, Terry Stop, , ,

New Bill to Toughen Pennsylvania Repeat Offender DUI Laws | Worgul, Sarna & Ness, Criminal Defense Attorneys, LLC

The state Legislature shall consider strengthening DUI consequences in Washington.

It makes sense, in a way. News reports indicate that DUI accidents have increased, or at least, a recent string of crashes in Washington leads us to believe so. While these tragedies are awful, it is important to remember that these results are not typical.

It’s no secret that DUI penalties are already harsh. Mandatory minimum penalties start at 24 consecutive hours in jail (convertible to 15 days of electronic home monitoring); $941 fine/court assessment; a 90-day license suspension; court-ordered alcohol evaluation, treatment, and victim impact panel; a one-year ignition interlock device (IID) requirement; five years of probation; and mandatory 12- hour impoundment of the vehicle immediately following arrest.

The mandatory minimum penalties get stiffer with subsequent convictions within seven years or higher BAC levels. Even worse, defendants convicted of DUI cannot vacate or expunge their conviction. The DUI remains on their criminal history forever.

The Legislature has amended DUI penalties 11 times in the past 10 years. It’s a subject of intense debate among lawmakers. Nowadays, legislatures are looking at different ways to, once again, enhance the penalties of DUI drivers.

The proposals could be seen as Draconian. They include making someone’s third DUI a felony; requiring impounded vehicles have Ignition Interlock Devices be installed before releasing the vehicle; random sobriety checkpoints; increasing jail sentences;  a 10- year prohibition on the consumption or purchase of alcohol following the third DUI conviction; faster filing of charges and mandatory jail booking following arrest.

My opinion? The proposals are Draconian. Requiring installation of IID devices on impounded vehicles is potentially unconstitutional. What if the defendant borrowed the vehicle from a family member or friend? Additionally, the Washington Supreme Court has already ruled random sobriety checkpoints unconstitutional. Finally, mandatory incarceration following arrest will cause a massive need for more jail space and money to pay for it.

Yes, increasing DUI penalties to stop repeat offenders – or even first-time offenders – is a worthwhile goal. However, careful measures must be taken by our lawmakers to draft laws and policies that address the problem while keeping in mind that everyone is entitled to make mistakes.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Toxicologist Says, “No Spike YET In Marijuana DUI Arrests”

Blood Test, Constitutional Rights, Drug Offenses, DUI, felony, Jail, law enforcement, Legislation, marijuana, misdemeanor, police, Terry Stop, Uncategorized, Washington State Patrol, , ,

A Marijuana DUI is Tough to Prove | DUI Lawyer

The state toxicologist hasn’t seen a spike in positive blood tests for marijuana since pot became legal under Washington law.

Voters last fall passed Initiative 502, allowing adults over 21 to possess up to an ounce of marijuana. The measure, which took effect Dec. 6, set a DUI limit designed to be similar to the .08 blood-alcohol content for drunken driving – 5 nanograms of active THC per milliliter of blood.

State toxicologist Fiona Couper told a legislative hearing in Olympia on Wednesday that the Washington State Patrol’s toxicology lab has completed tests on all blood samples taken from drivers in December, and has started on samples from last month. She says there’s no spike, but notes the law has only just taken effect.

Couper says that every year, about 6,000 blood samples from drivers are submitted to the lab. About 1,000 to 1,100 of those come back positive for active THC, with the average being about 6 nanograms.

My opinion? This could be the proverbial calm before the storm. Who knows, perhaps law enforcement officers are being trained and retrained on becoming Drug Recognition Experts on marijuana DUI detection. Progressive laws are slow to get enacted, and the government’s response to progressive legislation even slower; especially if it costs money to train/retrain officers. Yes, there’s no spike yet. But don’t get too comfy . . .

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Supreme Court Wary of Warrantless Blood Tests in DUI Cases

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, felony, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Search Warrant, Terry Stop, United States Supreme Court, , ,

Miami Police Usually Need a Search Warrant to Draw Your Blood for a DUI

Good stuff. The Supreme Court is considering requiring police to get a search warrant before forcing drunken-driving suspects to have blood draws.

In State of Missouri v. McNeely, the defendant was pulled over for speeding. He failed field sobriety tests and refused to take a breath test. The officer then took McNeely to a nearby hospital, where a technician drew blood over the handcuffed suspect’s objection. The legal issue is whether blood draws taken under these circumstances violate a defendant’s Constitutional rights. If so, the blood test  is suppressed and inadmissible to a jury if the case proceeds to jury trial.

The prosecution argues that getting a nighttime warrant takes an average of two hours, by which point a person’s blood-alcohol level may have dropped below the legal limit.  Alcohol typically dissipates in the bloodstream at a rate of 0.015 to 0.020 percentage points an hour. The limit in Missouri is 0.08 percent.

McNeely’s defense attorney argues that Missouri’s Implied Consent law allows drivers the right to refuse a blood test. All 50 states have implied-consent laws in some form. In short, Implied Consent law says drivers who refuse a blood or breath test automatically lose their license for a year.

My opinion? Police should get warrants. Period. Getting a warrant is the proper remedy when defendants exercise their Constitutional rights. Also, it doesn’t take long to get one. Police can call a judge while driving a defendant to the jail. Judges typically issue warrants over the phone.

Due to the passage of I-502, this issue is especially relevant in WA. I-502 allows for citizens to possess small amounts of marijuana. Unfortunately, when it comes to DUI arrests, I-502 set the legal limit for THC is the bloodstream at only 5 nanograms. This is a very low amount, especially for citizens who are licensed to smoke marijuana.

In other blogs I predicted that the passage of I-502 would probably convince law enforcement to immediately transport citizens investigated for DUI straight to the hospital to undergo blood tests. Blood draws are necessary to determine nanogram levels (they also detect alcohol levels). I also predicted that unlawfully obtained blood tests would soon become the subject matter of intense pretrial litigation.

Was the officer trained in drug DUI detection? Was the blood draw performed by someone who is medically licensed? Was it performed within 2 hours of the defendant being pulled over? Was the blood test tampered with? Can the prosecution properly establish the chain of custody of all persons who handled the blood sample? And now, according to the above case, can law enforcement simply circumvent the warrant requirement and obtain blood draws if the defendant refuses?

All of these issues are the subject matter of intense legal arguments. A good trial attorney will argue pretrial motions to suppress unlawfully obtained and/or tainted evidence. Yes, this pending case is a big deal.

We’ll see what happens. . .

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.