Category Archives: marijuana

Summer DUI Patrols Seek Prevention of “100 Deadliest Days.”

Blood Test, Drug Offenses, DUI, law enforcement, marijuana, misdemeanor, police, Terry Stop, Uncategorized, Washington State Patrol, , ,

Penalties for Repeat DUI Offenders in Arizona | Blog

It’s that time of year again. Law enforcement agencies across the state are stepping up DUI patrols to help get impaired drivers off the road.

This weekend, Washington’s law enforcement agencies are launching a two-week statewide campaign to crack down on DUI’s. It’s made to coincide with “The 100 Deadliest Days” of Washington’s roads, streets and highways as far as DUI-related accidents are concerned. Statistics show that 30 percent of our traffic deaths across Washington state actually happen between Memorial Day and Labor Day.

In the last six years, 961 people have died on Washington’s roadways during the summer season from alcohol related accidents and other factors. Add this to the fact that 2013 has brought an increase in the number of high-profile DUI related traffic deaths in Western Washington.

Meanwhile, a new measure to strengthen Washington’s DUI laws is being argued in the state legislature as lawmakers continue their stalemate over the budget.

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.

DOL Fees Increase for Those Challenging Their Driver’s License Suspensions Resulting From DUI Charges

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Washington State Department of Licensing (@WA_DOL) | Twitter

Look out – it’s now much more expensive to challenge the Washington State Department of Licensing’s (DOL) suspension of your license if you’re charged with DUI. The DOL recently raised the cost of an administrative hearing from $200 to $375.

Some background is necessary: in the past, defendants charged with alcohol-related driving crimes such as Driving Under the Influence (DUI), Physical Control, or Minor Driving After Consuming Alcohol (Minor DUI) had a reasonable opportunity to save their driver’s licenses from getting suspended. This “opportunity” was given by applying for a DOL hearing before a Hearing Examiner within 20 days of being arrested. The Hearing Examiner looks at (1) whether the stop was lawful, (2) whether there was enough evidence to arrest for DUI, (3) whether the defendant was given their Implied Consent Warnings under RCW 46.20.308, and (4) whether the defendant BAC’d at over .08 or refused the breath test.

Competent attorneys representing DUI defendants at these hearings stood the chance of stopping the automatic suspension/revocation of the client’s driver’s license (there’s LOTS of caselaw and WAC provisions surrounding this area of law).

The hearing used to cost only $200. Now it’s $375. This is almost DOUBLE the cost.

My opinion? The DOL appears to be discouraging people from seeking an administrative hearing. This law is a veiled attempt to prohibit the due process rights of people charged – and not yet convicted – of DUI. In other words, the DOL simply wants defendants to forego their right to a DOL hearing and install an IID.

Also, if we look at the passage of this law in conjunction with the increased monitoring of Ignition Interlock Devices IID’s (starting January 1, 2013, IID’s now require cameras), we can safely opine the WA Legislature is cracking down on DUI defendants. Indeed, a recent informal survey of National DUI attorneys confirmed that Washington State has the highest administrative costs for a DOL hearing and at least one state grants these hearings for FREE.

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.

New DUI Law: Ignition Interlock Devices Now Take Pictures of Driver

Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, Legislation, marijuana, misdemeanor, Search Warrant, Terry Stop,

California's Ignition Interlock Law Takes Effect Jan. 1 -- Occupational Health & Safety

Starting January 1, 2013, people charged with DUI and having their driver’s licenses suspended or revoked by the Department of Licensing (DOL) will undergo more monitoring. Starting January 1, a camera will snap a picture every time their Ignition Interlock Device is used, verifying that the driver is the person who took the test.

Interlocks are required on the vehicles whose drivers have been caught driving impaired. They allow those drivers to continue to use their cars, but only after making sure they are sober. Anyone caught trying to fool the machine will get recorded and that information will go to Washington State Patrol. Drivers can lose their Ignition Interlock License as a result. Apparently, impaired drivers often ask passengers, friends or even children to take the test for them, said Washington State Patrol Lt. Rob Sharpe.

“We’ve even heard stories of people trying to use portable air compressors to take the test,” he said.

My opinion? I respect the implied need for increased safety, however, this new law seems invasive and unnecessary. I haven’t heard of any traffic accidents where someone faked blowing into their Ignition Interlock Device in some way, shape or form. Why is there a need for increased monitoring of people convicted of DUI if something horrible hasn’t yet happened?

The passage of this law is another reminder to hire a competent defense attorney if you’re charged with DUI. Good representation might save your license from getting suspended/revoked and an Ignition Interlock Device installed on your vehicle.

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.

Can My Boss Fire Me For Smoking Marijuana?

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Marijuana and the workplace | Canadian Lawyer

Yes. Numerous clients have asked me that very question since the passage of I-502.

Under this law, citizens may possess and use small amounts of marijuana. Can employers terminate employment? Yes.  Employers may choose to not hire potential employees who use marijuana. Under Roe v. Teletech, 171 Wn.2d 736 (2011), the Washington Supreme Court recently ruled that even though medical marijuana use is legal, employers may still terminate employees for using it.

Employers are free to treat marijuana as alcohol. In other words, employees must NOT be under the influence while in the workplace, driving vehicles, or while performing tasks for their employer.

My opinion? More than ever, it’s important to consult an attorney experienced with these matters if you’re facing criminal charges and trying to protect your job. A conviction for possession of marijuana – and possibly Drug DUI – can get you fired. Reducing and/or dismissing marijuana-related charges is your safest option.

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. Guevara: Stopping Schoolboys and Searching Them for Marijuana is Unlawful Without Probabale Cause.

Constitutional Rights, Drug Offenses, law enforcement, marijuana, Privacy, Search and Seizure, Terry Stop, Washington Court of Appeals, , ,

With Police in Schools, More Children in Court - The New York Times

In State v. Guevara, the WA Court of Appeals held that a Interesting search involving a “school resource officer” who stopped the defendant and his friends for suspected drug use was NOT a social contact and NOT a community caretaking function.

Guevara and his friends were walking near school one morning before class. A uniformed school resource officer stopped the group and inquired what they were doing. He told them he suspected they were skipping class to smoke marijuana. The officer found drugs on Mr. Guevara. At trial, the judge denied Guevara’s motion to suppress the evidence. The trial court denied the motion on the basis that the stop was a social contact within the scope of the officer’s authority.

In suppressing the evidence, the Court of Appeals reasoned that the stop became a seizure when the officer told the boys he believed they were using drugs and sought their consent to search them. This, ruled the court, was neither a social contact nor a community caretaking function.

My opinion? Good decision. Although they may have skipped school, the boys were otherwise behaving in a lawful manner. They were not under the influence of marijuana, alcohol or any other illegal drugs. They weren’t operating a motor vehicle under the influence of alcohol, drugs or marijuana. Consequently, the officer appeared to lack probable cause to search them for possessing marijuana or any other drugs.  At worst, the officer should have merely escorted them back to school. Good decision.

Please review my Search and Seizure Legal Guide and 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.

Drug DUI: The Brass Tacks

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

Pima County Drugged Driving Attorney | Tucson Drug DUI Defense Lawyer | AZ

Yes, I’ve blogged on this before – the passage of Washington Initiative 502 (I-502) and its impacts on DUI investigations. Consider this Part II of an ongoing discussion.

Under I-502, it is now legal to possess marijuana in small amounts. Undeniably, this opens many legal issues for motorists suspected of Driving Under the Influence of Marijuana, typically called “Drug DUI,” “stoned driving” and/or “DUI-D.” What are the legal limits of THC consumption? How do officers obtain proof of Drug DUI? How does I-502 affect minors charged with Drug DUI? What are the consequences of refusing an officer’s attempts to obtain proof of DUI-D?

Under I-502, the legal limit for THC is 5.00 nanograms. Officers obtain THC readings from blood tests administered in hospitals. Consequently, I-502 gives law enforcement officers more incentive to transport citizens to a hospital and seek a blood test if the officer suspects Drug DUI. Citizens refusing the blood test shall be charged with an upper level “Refusal” DUI for violating RCW 46.20.308, which is Washington’s Implied Consent Law. Worse, an officer now has discretion to immediately seek a warrant for a citizen’s blood. With warrant in hand, the officer may obtain a blood test from the citizen anyway, despite the citizen’s prior refusal.

Under RCW 46.20.308, which is Washington’s Implied Consent statute, the citizen’s license, permit, or privilege to drive will be revoked or denied for at least one year.  Refusal of the blood test is also admissible in a criminal trial. In the case of minors, I-502 imposes zero tolerance.

In short, the impacts of I-502 are extremely egregious. Fortunately, there’s also a lot of room for error on the part of law enforcement officers charging citizens with Drug DUI. Some of these issues – in the form of defenses – are as follows:

(1) Why did the officer initiate the pullover?

(2) Was the officer trained as a Drug Recognition Expert?

(3) What is the officer’s probable cause for arresting someone for Drug DUI?

(4) Was the citizen informed of the Implied Consent Law?

(5) What constitutes a Refusal?

(6) How did the officer obtain a warrant for a blood test?

(7) Did a licensed medical professional draw the blood?

(8) Can the Prosecutor establish the chain of custody showing who took the blood, who sealed it, and who tested it? And more, are these individuals available to testify?

(9) How does being charged with DUI-D affect citizens who are licensed to smoke marijuana; citizens who probably have elevated levels of THC in their blood anyway?

These issues, and more, affect the outcome of your case. Immediately consult an experienced criminal law attorney like myself if you’re facing Drug DUI charges.

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.

Federal Government Mum on Washington & Denver Legalizing Marijuana

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How legalized cannabis changed Colorado in the past five years

The Feds are silent on Colorado Legalizing Marijuana.

“We’ve got bigger fish to fry,” said President Barack Obama, during an interview with Barbara Walters of ABC News. In short, it’s not a major concern in his administration to continue prosecuting citizens for possessing small amounts of marijuana in states that have legalized the drug.

“This is a tough problem, because Congress has not yet changed the law,” Obama told Walters of the legalization in Colorado and Washington. “I head up the executive branch; we’re supposed to be carrying out laws. And so what we’re going to need to have is a conversation about, how do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it’s legal?”

Backers of new laws that legalized marijuana in Washington and Colorado were cautiously optimistic after President Barack Obama said Uncle Sam wouldn’t pursue pot users in those states. Following the November votes in Washington and Colorado the Justice Department reiterated that marijuana remains illegal under federal law, but had been vague about what its specific response would be.

Marijuana activists were relieved at Obama’s comments, but had questions about how regulation will work. They said even if individual users aren’t charged with crimes, marijuana producers and sellers could be subject to prosecution.

My opinion? Although it appears there’s a cautious green light for citizens in “now-legal” states to possess small amounts of marijuana, don’t light up a joint in the streets any time soon. The new law comes with many strings, bells and whistles attached making it illegal to display and/or possess marijuana in certain situations.

For example, it’s not legal to smoke marijuana while walking around in public places, before driving a vehicle, etc. And the DUI implications are even more staggering.

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.