Beyond Alcohol: How Other Drugs Affect Driver Performance

Most people are fairly familiar with the effects that drinking alcohol can have on their driving performance. Alcohol loosens inhibitions, so people are apt to take more risks even as their reaction times are slowed, and they can become more easily distracted and unable to concentrate on driving. Alcohol can also impact a driver’s sense of direction and their ability to judge situations on the road and make good decisions.drug-dui-los-angeles-defense-attorney

Other types of drugs have similar, although not identical effects. The National Highway Traffic Safety Administration’s most recent National Roadside Survey of Alcohol and Drug Use by Drivers found that the number of drivers with alcohol in their system had declined by nearly one-third since 2007. But there wasn’t much cause for celebration; the survey also found a large increase in the number of drivers using marijuana or other illegal drugs. Nearly one in four drivers tested positive for at least one drug that could affect their safety on the road, according to the NHTSA.

Here’s a look at how several other types of drugs can impact drivers’ performance.

Marijuana

Whether you call it pot, cannabis, Mary Jane or something else, marijuana can have a suprisingly profound impact on driving skills. This has become more of a concern since seven states and the District of Columbia of Columbia have now legalized the recreational use of pot, many other states have decriminalized possession of small amounts of it and other states are allowing its use for medical reasons.

One of the problems in determining the effects of marijuana is that it can be smoked or eaten in food, which can affect the way that the body reacts to it. The amount of THC (delta-9-tetrahydrocannabinol) in products also varies. In addition, there are no good tests to determine how much THC is actively influencing a driver, since the chemical remains in the bloodstream for durations that are hard to predict through simple tests. For instance, the half life of the drug and its metabolites depends sensitively on things like your weight, your genetics, your metabolism, etc.

In general terms, however, it’s clear that marijuana can have a detrimental effect on driving. A study at the University of Iowa, funded by the National Institute of Drug Abuse, looked at the impacts that inhaled marijuana had on driving. (Researchers used a driving simulator). As the levels of THC in their bloodstreams increased, the study participants showed increased weaving within a lane of traffic. (They did not, however, leave the lanes or speed while weaving as often as those participants who consumed alcohol did.) The researchers also found that those who consumed both alcohol and marijuana did worse than drivers who had consumed only one of the substances.

According to the AAA Foundation for Traffic Study, “Acute use [of marijuana] has been shown to moderately diminish virtually every driving‐related capacity, generally in a non‐linear dose‐response fashion: psychomotor functions, cognition, attention, vigilance, tracking, reaction time and coordination.” Marijuana use is “generally regarded to affect automated/routine driving more than that requiring conscious effort. Effects depend on dose, absorption, time since peak blood level, history of use, and skill/tasks.”

Cocaine

Like marijuana, cocaine can have physical effects on drivers that include heightened nervousness and greater alertness but poorer concentration. Unlike pot smokers, however, cocaine users are more likely to exhibit reckless driving behaviors and/or reduced driving ability, according to a 2008 article in the Traffic Injury Prevention Journal.
The National Highway Transportation Safety Administration (NHTSA) website notes that the observed signs of cocaine impairment in driving performance have included subjects speeding, losing control of their vehicle, causing collisions, turning in front of other vehicles, high-risk behavior, inattentive driving, and poor impulse control. It further states that as the effects of cocaine wear off, subjects may suffer from fatigue, depression, sleepiness, and inattention, which can all impact driving.

ADHD Medications

Not all drugs have a negative impact on driving. Medications for attention deficit hyperactivity disorder, such as Adderall, Ritalin and Concerta, can actually improve driving skills.

In 2007, the Journal of Safety Research published a scientific literature review that looked at the effect that medications for controlling ADHD could have on driving competence. The authors’ review demonstrated that there were “well-documented driving risks and impairments associated with ADHD” and that there were “positive effects of stimulant medications on driving performance.”

They concluded that “Clinicians should educate patients/caregivers about the increased risk of adverse outcomes among untreated individuals with ADHD and the role of medication in potentially improving driving performance.”

CHADD (the national resource on ADHD) agrees. It points out on its website that drivers with untreated ADHD (especially young drivers) are at greater risk for vehicle accidents and are more likely to receive traffic tickets for speeding, failure to obey traffic laws and reckless driving. “In a striking comparison, the untreated symptoms of ADHD in a teen driver can impair the driver’s ability so much that it resembles intoxicated driving.”

The website also states that “Research shows that teens who are treated for ADHD are better drivers than teens receiving no treatment. Teenagers who have never been treated with stimulant medication are involved in more vehicle crashes than those who had medication treatment for at least three years.”

Benzodiazepines (Benzos)

Benzodiazepines are a class of drugs used to treat disorders such as anxiety, panic attacks, depression and insomnia. Common “benzos” include Klonopin (clonazepam), Ativan (lorazepam), Valium (diazepam) and Xanax (alprazolam).

Benzos can be very helpful in treating people with anxiety and most people can use them safely. But according to established research, users can suffer a battery of side effects that include drowsiness and a hangover-like-state that affects driving ability.
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Many people worry about the effects that marijuana legalization will have on DUI. But the dangers of driving while under the influence of benzodiazepines may have been under reported. When the State of Alabama’s Department of Forensic Science conducted a review of traffic stops, they discovered that benzos were the second leading cause of impaired driving in the state. They found that Xanax was involved in 29 percent of DUI cases in the state, while marijuana was involved in only 23 percent of DUIs.

Tranquilizers

Drugs like Valium (diazepam), Halcyon (triazolam) and Librium (Chlordiazepoxide) are all examples of tranquilizers. They may have effects similar to alcohol on driving: they dull the senses and impair decision-making ability.

The National Highway Traffic and Safety Administration (NHTSA) has warned about the dangers of driving while on tranquilizers. For example, the NHTSA notes that “diazepam is a moderate tranquilizer, causing sleepiness, drowsiness, confusion, and some loss of anterograde memory.” (Anterograde memory is the linked to the ability to remember new information.)

The NHTSA further warns that “At high doses, excitement, disinhibition, severe sedation, and effects on respiration occur, particularly if respiration is impaired by other drugs or by disease. Diazepam can produce a state of intoxication similar to that of alcohol, including slurred speech, disorientation, and drunken behavior.”

Oklahoma’s Emergency Medical Services Authority says that the use of tranquilizers can lead to a lack of coordination, altered perceptions and slower reaction time. Drivers on tranquilizers don’t track the road as well as sober drivers, struggle to maintain lane positon and frequently neglect roadside instruction.

Source: Beyond Alcohol: How Other Drugs Affect Driver Performance — Los Angeles DUI Attorney Blog — April 23, 2017

Horizontal Gaze Nystagmus

New Illinois Supreme Court Case – The HGN Test Is Not All It’s Been Touted to Be:The Supreme Court of Illinois  in The People of the State of Illinois v. Joanne Mckown last week issued an opinion regarding the Horizontal Gaze Nystagmus (HGN) field sobriety test and made some remarkable findings. First, the Court held that the HGN test can not be used to show actual loss of the normal use of mental or physical faculties, but instead, can only be used to show that a “defendant may have consumed alcohol and may, as a result, be impaired.”  There is no more of this, “they failed the HGN so they are therefore intoxicated” arguments.Second, the Court held that just because a scientific test is regularly relied upon in law enforcement does not make it admissible in court.  The test is whether the particular test is relied upon in the scientific community, not the law enforcement community. Third, just because a test meets the standards for admissibility under Frye, that does not preclude the trial court from conducting a balancing test  and deem the evidence “inadmissible on grounds of undue prejudice.”Finally, the Court held that the test must strictly comply with the NHTSA standards for performing the test.  This means the cops aren’t going to be allowed to come in a testify, “I did it the way I was trained to do it.”  They are going to be held to the standard of the NHTSA.Here’s hoping the Texas Court of Criminal Appeals will at least read this opinion.  Even more importantly, here’s hoping that the trial courts in Texas will read the case and understand that they truly are gatekeepers for the admission of evidence.

Source: Horizontal Gaze Nystagmus : Houston DWI Law Blog

How long can police detain me for a traffic stop?

Consider a hypothetical: a police officer stops you for a minor traffic violation or suspicion of an Oklahoma DUI charge. He goes through the usual routine of checking your driver’s license, vehicle registration and proof of insurance, and they all check out. He writes you a warning about the traffic infraction. You think that the encounter is over, and want to get on your way. But for some reason, the officer does not seem to want to let the matter rest. Next he asks you for permission to walk a drug sniffer dog around your vehicle. You refuse to give permission, and the officer refuses to let you leave. Backup arrives. The officer does the dog pass around your car anyway, and the dog alerts to the presence of an illegal drug. You are arrested on charges for drug possession.You ask yourself: was it reasonable for the officer to continue the traffic stop once he issued the warning? How long is too long to conduct a routine traffic stop?Interestingly, earlier this year the U.S. Supreme Court examined this very issue, and its conclusion may make a significant difference in how police perform traffic stops in Oklahoma and other states.The above hypothetical is not just a thought experiment. It really happened to a driver in another state. The driver argued that prolonging the traffic stop without any basis in reasonable suspicion violated his constitutional rights and that accordingly the drug evidence should be suppressed. The prosecution countered that the added time – seven to eight minutes – represented only a “de minimis” intrusion on the driver’s personal liberty and was therefore acceptable. The trial court sided with the prosecution, as did the Court of Appeals. For its part, however, the US Supreme Court disagreed. In an opinion that found support from both its conservative and liberal Justices, it ruled that unless reasonable suspicion exists for the officer to do a drug search, including a dog sniff, he or she cannot extend a traffic stop to search for drugs in your car. The officer can stop you long enough to complete the “mission” of the traffic stop – for example, to issue you a ticket or warning for the original reason for stopping you – but then must let you go without prolonging the stop in the hope that a dog sniff of your vehicle might turn up something. The Court also disagreed with the prosecution’s argument that if the officer conducting the traffic stop does it “expeditiously” that should somehow grant additional time for a drug search.  In short, performing a dog sniff test is beyond the scope of the mission of a vehicle stop based on a traffic violation, meaning that the Fourth Amendment to the U.S. Constitution cannot countenance absent grounds for reasonable suspicion for a search. If you are held longer than you believe is reasonable for a traffic stop, and police use that extra time to do a drug search of your vehicle, you should inform your defense attorney of this – it might make the difference between being convicted of an offense or not.

Source: Oklahoma DUI

Should I Take the Breathalyzer if I am Pulled Over for DUI/DWI

As a Maryland DUI/DWI Attorney I am frequently asked by friends and acquaintences whether they should take the breathalyzer if they are stopped for suspicion of Driving Under the Influence . This question is almost invariably followed by the statement, “because I have always heard that you should never take it”.

I am not completely sure where this idea that one should never take the breathalyzer came from, although I suspect it is simply dated advice that is still being recirculated because in my view, under most circumstances, a person who is stopped by the police should take the breathalyzer if asked to do so. Here’s why:

As most people are aware, significant changes have been made to the law regarding Driving Under the Influence over the past 20 years. For instance, 20 years ago the legal limit was a BAC of .12 as opposed to .08 today for Driving Under the Influence. In those days judges were also far more likely to give a well represented defendant the benefit of the doubt in cases where there was no breathalyzer. The administrative sanctions imposed by the MVA for refusing the breathalyzer were also far less severe than they are today. The bottom line was in those days not taking the breathalyzer gave you a better shot at being found not guilty in criminal court and did not subject you to extreme administrative penalties. It may very well have been sound legal advice to advise people to never take the breathalyzer before these changes.

Today, the police are trained much better than they were in the past and know how to observe and explain a suspects intoxicated behavior in language that is persuasive to judges and juries in most cases. Laws have also been changed to aid prosecutions in which the breathalyzer was not taken. For instance, it used to be the case that the State was not even allowed to mention the fact that a test was not taken to the judge or the jury. Today, they are allowed to argue to the judge or jury that they should draw a negative inference from the defendant’s refusal to submit to the breathalyzer.

In recent years judges have also been trained, and some my say also cajoled by groups such as MADD, into being much more likely to convict without the benefit of the test. Finally the administrative penalties are much harsher today than in the past. Today for a first refusal there is a mandatory suspension of 120 days. A second or subsequent refusal requires a suspension of a year. There is no provision for a work restricted license such as there is when the test is taken. The only way around the suspension is to participate in the interlock program for a year.

Unfortunately, the decision as to whether to take the test was further complicated a few years ago when the legislature changed the law to increase the adminstrative sactions for readings of .15 or greater. These higher readings now require a 90 days suspension that, like the refusal, may not be modified unless the person participates in the interlock program.

So what is my advice? Today, I tell people that if you are not completely intoxicated and it is your first offense, in most situations you are better off to cooperate fully to include taking the breathalyzer. For the reasons explained herein, there is really little to gain in criminal court by not taking the test and refusing to do so will ensure the much more onerous administrative sanctions I described. On the other hand, if the test is taken and the result is below .15, the person will only face a 45 day suspension that may be modified so that the person can drive to and from work. This is obviously far easier to deal with than a mandatory 120 day suspension or a year with the “blow and go”

Source: Should I Take the Breathalyzer if I am Pulled Over for DUI/DWI — Maryland Criminal Attorney Blog — February 28, 2012

Going to Prison For Misdemeanor DWI

Minnesota-Felony-DWI-Prison.jpgThe heart of this case — State v. Boecker if you want to read it yourself — involves the type of issue that only lawyers can really get behind . . . complex statutory interpretation. But even the most convoluted cases can be simplified for non-lawyers, and State v. Boecker is no exception. Basically, this case came about because the Minnesota Legislature has done a terrible job writing our DWI laws, creating loopholes and contradictions across various statutes. Because we get a new Legislature every two years, the situation gets progressively worse, as future law makers then make even dumber decisions, like inserting language describing the “intent” of previous lawmakers from decades past.

This isn’t uncommon — very few of our legislators are actual attorneys, or even have legal training— but it seems to get especially ugly with our DWI laws. And our Courts, who are responsible for interpreting the letter of the law (not the “spirit,” and especially not when the statute imposes a criminal penalty) sometimes make a deliberate effort to “look the other way” when a DWI law is being scrutinized for lousy drafting.

And that’s what happened here. Minnesota’s DWI laws make any DWI a felony-level offense (meaning you can go to prison) if you have a prior felony offense at any point in your lifetime. In fact, the statute lists all of the possible ways of enhancing a misdemeanor DWI to a felony.

But in Boecker’s case, the statute didn’t list his specific offense, that happened in 1998. The Minnesota Supreme Court relied largely on some “statement of intent” language that was inserted by the 2012 Legislature, purporting to describe the intent of the 2007 Legislature . . . and things just got more confusing from there. Long story short, the Court concluded that even though Mr. Boecker’s prior 1998 DWI wasn’t listed as an option for enhancing his current offense to the level of a felony, they were just going to “read it into the statute” (that’s me paraphrasing).

That’s typically a huge no-no — if a criminal statute doesn’t say something explicitly, it’s not the role of the the Courts to invent language to cover any gaps. But that’s what happened in Boecker . . . and now he’s going to spend several years in prison for driving with an alcohol concentration of 0.14. That may or may not have been the intent of the Legislature, but if it was their intent, they should have done a much, much better job of saying it.

Source: Ramsay Law Firm

The Operation of a Motor Vehicle Requirement for a DUI

The Operation Of A Motor Vehicle Requirement For A DUIAn essential element for a DUI conviction in Kentucky according to the Kentucky DUI statute, KRS 189A.010 (1), requires that “a person shall not operate or be in physical control of a motor vehicle anywhere in this state.” A person who is not in control of a motor vehicle simply cannot be guilty of a DUI.So for example, if an officer observes a properly parked vehicle with an intoxicated person sitting behind the wheel, with the keys in the ignition and the motor running, and the person inside sitting there just smoking and texting on their cell phone, is that behavior sufficient to meet the proof of operation to support a DUI arrest? What if the intoxicated person was asleep at the time that the officer arrived? The simple answer to both questions is it depends on the facts and whether the prosecutor can prove the intoxicated person was operating or in control of the vehicle.In order to prove operation or control of the vehicle to support a DUI arrest and subsequent conviction, the prosecutor has the burden of proving the following four factors:Whether or not the person in the vehicle was asleep or awake;Whether or not the motor is running;Location of the vehicle and all the circumstances bearing on how the vehicle arrived at that location; andThe intent of the person behind the wheel.The first factor, whether a person is asleep or awake, is easily observed by the officer. But by itself it is not sufficient to support a DUI arrest. Courts have held that a sleeping person is not in operation of a vehicle.The second factor may be more difficult since determining whether or not a gasoline or diesel engine is running is easy but with the introduction of hybrid and electric vehicles on the roadways in recent years it does make it more difficult to determine whether or not an electric motor is running since they are mostly silent when running and designed to remain off while the vehicle is stopped. However, at least one court has held that merely starting a vehicle’s engine or motor is not an exercise of actual physical control.The third factor, the location of the vehicle and all the circumstances bearing on how the vehicle arrived at that location, are important in determining operation. For example, when did the driver become intoxicated: before or after parking the vehicle? Was the driver discovered before any new driving could begin?The fourth factor, the intent of the person behind the wheel, is more difficult to prove and has been the subject of numerous court hearings over the years. Kentucky courts have held that sleeping drivers in properly parked vehicles could not have had any intention to drive under those circumstances. Furthermore, as a court stated, merely being awake in the driver seat of a vehicle with the engine on does not require finding of an intent to drive or it would constitute a separate factor in the determination of whether the person and the vehicle was awake or asleep.Answering the questions in the example above, a person who is sitting in the driver seat of a properly parked vehicle in which that person can comfortably smoke and text, rather than using the vehicle as a mode of imminent transportation, shows that the person did not intend to drive. In that situation the person is not in operation of the vehicle to support a DUI arrest.

Source: The Operation of a Motor Vehicle Requirement for a DUI – Kentucky DUI Defense Lawyer

False Positives And Other Outlandish DUI Arrests

Have you heard the one about the driver who was arrested for DUI because he had a caffeine high? Or about the state legislator who successfully argued that cough syrup and a breath spray caused a false positive DUI breathalyzer reading?auto-brewery-dui-300x169

While law enforcement officers and courts generally accept breathalyzer tests as proof that someone was driving under the influence, those tests can sometimes give false positive readings. As absurd as these stories sound, to the people wrongfully arrested for DUIs, these incidents are no laughing matter.

Betrayed by their bodies

A rare medical condition led a judge to dismiss a DUI charge against an upstate New York woman in 2015. Police pulled the woman over because she was driving on a flat tire and arrested her when a breathalyzer test revealed that she had almost four times the legal limit of 0.08 percent alcohol in her bloodstream. That’s considered life threatening, so police rushed her to the hospital.

What puzzled police, the hospital and her attorney, Joseph Marusak, was that the driver showed no symptoms of being under the influence. Plus, Marusak’s client claimed she had only four drinks over the course of six hours—not enough to leave her intoxicated.

Marusak ended up doing some investigating and eventually uncovered his client’s problem; she had auto-brewery syndrome, in which the body actually manufactures its own alcohol. Those with the disease have abnormal amounts of gastrointestinal yeast, which takes the common carbohydrates they eat and turns them into ethanol. The medical community has been aware of this condition since the early part of the 20th century.

The judge dismissed the charges against Marusak’s client, who is now on a yeast-free diet (no sugar, no alcohol and very few carbs, according to CNN).

Overzealous officers

Last December, ABC News 13 in Houston reported the story of a woman who was arrested for DUI and spent three days in jail. But Christie Lietzau claimed that the problem wasn’t that she was intoxicated, but that she was having an episode of multiple sclerosis (MS).

Christie Lietzau said she was driving her daughter to a fast food restaurant when she had an MS episode. The daughter, alarmed by her mom’s slurred speech and instability, called 911. When officers responded, they told the daughter her mother was impaired, not ill, and arrested her for DUI. Lietzau said the police didn’t give her a BAC field test, but a spokesperson for the Rosenberg Police Department said they followed all procedures.

The officers said that they drew blood and that the DUI charges stem from Lietzau being under the influence of prescription medicine. Lietzau admits to taking medication to control her MS, but says it doesn’t affect her driving ability. (There’s no word yet on how this case has been resolved.)

Prescription medicines can cause people to drive erratically, but one police officer in Statham, Georgia, has taken that a bit far, according to many locals. They allege that Officer Marc Lofton routinely arrests people who take prescription drugs—even those legally prescribed by physicians for diabetes, blood pressure and other medical conditions.

Stratham has a population of just over 2,500 people. Last fall, a group of 400 of those citizens—almost one-sixth of the town’s population—signed a petition calling for Lofton’s firing because of his allegedly overzealous actions. In November 2016, the Online Athens news site reported that a group of people “too large to fit inside the Statham City Hall without breaking fire code” attended a meeting of the City Council to demand that Officer Lofton be fired.

The angry citizens claim that Lofton is making these DUI arrests in order to boost the department’s (and the town’s) budget.

Statham Police Chief Allan Johnston has backed Lofton, although he admits that the officer needs more training in DUI. The Georgia Prosecuting Attorney’s Council, which investigated citizens’ complaints, said that the officer should take an Advanced Roadside Impaired Driving Enforcement Class (ARIDE). When questioned by reporters for CBS46, Johnston said that Lofton had taken the class when he worked for another agency but failed it. (The CBS46 reporters didn’t find a record of that training, but found that Lofton had taken—and failed—a Lidar (radar) speed measurement class.)

Officer Lofton’s accusers were further outraged by the fact that his wife was arrested for DUI in 2015 after blowing a .204 on a breathalyzer. But when her case came to court, the prosecutor dismissed the charges. He claimed that the Winder, Georgia officer who arrested her had credibility issues and that his office was dismissing many other of the officer’s DUI arrests.

Pot problem

One problem that DUI enforcement officers face is the lack of a credible test for marijuana intoxication. Many states, including Georgia, have reacted by training more officers to become Drug Recognition Experts, who learn how to detect possible drug intoxication by evaluating drivers’ behavior and reactions. The problem is some officers don’t get it right… and then they’re reluctant to admit that they may have been wrong in their assessments.

An investigative report by Atlanta 11 Alive news team found that one officer in Cobb County, T.T. Carroll, received a silver medal for making 90 DUI arrests in 2016, even though in at least three cases he apparently misread the signals.

Carroll charged Bartender Katelyn Ebner with DUI despite the fact that she passed a BAC field test and denied ever smoking marijuana. Carroll insisted that he could tell she was pot-impaired. Carroll spent the night in jail, lost her alcohol server’s permit and ended up spending thousands to clear her name. The drug tests, which police had said would prove her impairment, came back negative.

In a similar case, a college student named Princess Mbamara went to jail on Carroll’s accusation of marijuana intoxication. Her test results came back positive only for a local anesthetic that is found in anti-burn, anti-itch and similar over-the-counter medicines. Another unnamed Auburn University student had a similar experience; the prosecutor eventually dismissed the charges against the defendant, noting that the student had done fine on the field sobriety evaluation and that the blood and urine tests were negative.

Playing politics

Politics also sometimes plays a role when determining who gets charged and convicted of a DUI. In June 2016, a judge acquitted Florida Senator Terry Burton, the President Pro Tem of the Florida State Senate, of the charges of DUI against him. The Scott County judge decided that Senator Terry Burton’s BAC reading of 0.10 at the time of his arrest was a false positive. He accepted Burton’s explanation that the reading was the result of his taking cough syrup and using breath spray.

Burton had hit a traffic sign around 10 p.m. on the evening of May 14, 2016. He said that he had a coughing spell after the airbags deployed and drank some Nyquil because he had nothing else in the car. He then used the breath spray because his mouth was dry.

Burton admitted to drinking alcohol earlier in the day but insisted that he had stopped drinking in the afternoon and was not under the influence when arrested. The judge ruled that the BAC reading was a false positive and dismissed the charges against Burton.

Source: False Positives And Other Outlandish DUI Arrests — Los Angeles Criminal Defense Attorney Blog — July 19, 2017

Police Are From The Same Cloth As All Court Witnesses

Fairfax Northern Virginia criminal lawyer/DWI attorney pursuing best defense

Police are from the same cloth as all court witnesses, drawn from the general population that ranges from the angelic to the amoral to the sinister. Neither the law nor good sense merits cloaking police with any more presumption of believability nor honesty, than any other witness.

Recent examples that police include those to heavily beware of include:

– Two weekends ago, a Minneapolis police officer shot dead Justine Ruszczyk, a 911 caller who reported a possible assault in progress. No video footage exists of the incident, the police officer who shot the caller has apparently remained silent (which of course is his right, as much as police often act berserk when their own suspects do not talk to them), and the Minneapolis police chief has resigned in the midst of this scandal.

– Praised be the Maryland Public Defender’s Office for making public a video from earlier this year seeming to show Baltimore police planting illegal drugs in a residential area. The related prosecution got dropped as a result.

– Speaking of Baltimore, two veteran Baltimore police detectives — Evodio Hendrix and Maurice Ward — on July 21, 2017, entered guilty pleas in federal court over charges involving robbing arrestees, claiming non-existent overtime pay, and forging documents.

Material mis-steps by police are not isolated incidents, even if the above examples are among the more extreme police mis-steps. Police work under extraordinary pressure, often exhausted working when most people are sleeping, often too quickly dashing off incident reports that become their gospel (so that they may return to the street or end their shift), and are bound to make serious errors. Their badge and uniform do not shield them from such mis-steps.

What can the population at large do about this state of policing affairs? We can start by acknowledging that the public over the decades has allowed the criminal justice system to get overgrown and overly harsh, abdicating our own role in looking out for each others’ welfare as opposed to seeking a policing and prosecutorial solution to even minor claimed ills that do not need police and court intervention. In community after community in the United States, millions of Americans greenlight what has become a police state, with police trolling for those with marijuana, for those minding their own business enjoying several cold ones without any car keys nor intention to drive, drivers possibly over the alcohol drinking limit, and the list goes on. Too many politicians cower about possibly lost votes if they stand up for a smaller, more manageable, more sensible and humane criminal justice system rather than the current state of affairs that allows too many presumed innocent people to be detained without bond pending their trials, too many people to be racially profiled, too many non-violent convicts to suffer overly-severe mandatory minimum sentencing, and too many innocent people to be convicted.

Of course, we want police to humanize all people, and one way to accomplish that is for us to humanize police. Plenty police mean well, but how many police who mean well stand up when they witness colleagues who violate their oath of office, stand up to orders that disserve the public, and stand up for them to have the resources and time to minimize getting the wrong people arrested, convicted and harshly sentenced? For a police officer to stand up in that way, the officer needs to be ready to risk losing his or her police fraternity, his or her job, and all the substantial pay, overtime, pension, and other benefits that come with the position.

Prosecutors, judges and jurors do a gross disservice to criminal defendants and the rest of the public to cloak police with any more a presumption of honesty and reliability as witnesses than they do with civilians. We all are humans, all with the potential and ability to do great and abysmal things. Police are far from Übermensch immune to such failings.

Northern  Virginia criminal defense attorney Jon Katz has been fighting for thousands of criminal defendants since 1991. For a confidential appointment, please call Jon’s staff at 703-383-1100. 

Police are from the same cloth as all court witnesses

Perverse incentives created by police overtime for court appearances

The Texas Court of Criminal Appeals last month issued an opinion in Ex Parte Mark Bowman, with a dissent from Judge Elsa Alcala, that caught Grits’ eye – not because of the issues being decided in the case but thanks to the underlying fact pattern evinced in the discussion.At issue was a 2004 DWI in Houston and whether the defense counsel was alleged to be ineffective. The evidence of counsel’s ineffectiveness? Because of Houston PD overtime rules, the officer had an incentive to arrest people for DWI even if the cases were later dismissed because he received time-and-a-half for the hours he spent in court.The officer, William Lindsey, testified that members of the DWI task force were “paid overtime, time-and-a-half” for all hours spent in court, giving him a personal financial motive to go to court whether or not an arrest is legitimate. In the prior year, he said, he’d made 476 DWI arrests.In his habeas writ, the defendant was able to show that Officer Lindsey, from 1992 to 2004, made more money from combined overtime pay than he did from his regular salary. According to the majority opinion, “In the first eleven months of 2004 – the year of Appellant’s first DWI arrest – Lindsey earned a total of $145,957, of which only $63,924 was regular salary while $82,032 was paid overtime.”For a while, Lindsey was the highest paid officer in the city. He retired after reporters began to question the situation in 2006. (See contemporary Grits coverage.)Three criminal defense lawyers, including Doug Murphy, a DWI specialist, testified that failure to secure details about Lindsey’s economic incentives amounted to ineffective assistance.  From Murphy’s affidavit:It is common knowledge among lawyers in Harris County who regularly handle DWI cases during Lindsey’s tenure on the DWI Task Force that he arrested many people in affluent parts of southwest Houston – regardless of how well they performed the field sobriety tests or how sober they appeared to be on videotape – so he could obtain overtime pay for appearing in court pursuant to a subpoena to testify at their trials. Competent defense lawyers made Public Information Act requests to HPD to obtain Lindsey’s payroll records before they tried DWI cases in which he would testify.Further, wrote Mr. Murphy:Defense lawyers would present this evidence on cross-examination to demonstrate Lindsey’s motive for making the arrest. They typically would argue that Lindsey arrested sober drivers for DWI because he knew that they would go to trial and he would receive overtime pay for appearing in court to testify; that, for this reason, he gave no driver the benefit of the doubt at the scene; that, in effect, he received three days of pay for appearing at a two-day trial; that he received the money even if the defendant were acquitted; and that his overtime pay exceeded his regular pay during his tenure on the task force. Arguments of this nature frequently persuaded juries to reject Lindsey’s opinion regarding intoxication.The other two attorneys’ affidavits included essentially similar comments.A Houston Chronicle story from July 1, 2006* mentioned a “memo … from a traffic enforcement captain warning that officers were scheming to have themselves unnecessarily placed on court dockets to inflate their overtime totals.” So these allegations were coming from HPD brass, not just defense lawyers or the media.Let’s leave aside for a moment the question of whether defense counsel was ineffective, which is the focus of the two opinions. Grits instead wants to raise other questions: Is it good public policy for police officers to have an incentive to make dubious arrests so they can get overtime to show up in court? If testifying is part of a police officer’s job, why can’t they do it during regular work hours? Is there a way to pay for court time that doesn’t contribute counterproductive incentives?In Austin, the meet and confer agreement (Art. 8, Sec. 3) specifies particularly generous extra pay for time spent in court. For example, an officer who attends court for more than one hour prior to the start of the work day gets credit for a minimum four hours of overtime. Similarly, officers who go to court after work receive a minimum of four hours overtime no matter how long they stay there. So if an officer gets off at 5, goes to court at 5:15, and is out by 5:50, they’d be compensated for four hours at time-and-a-half.Such pay structures give incentives for police to arrest on trumped up charges so they can justify spending time in court and making time-and-a-half. Such incentives can result in false convictions, particularly when counsel is ineffective or nonexistent. That seems like a more important takeaway for me, anyway, than the ineffective assistance questions at the heart of the debate between the judges over Mr. Bowman’s habeas writ.

Source: Grits for Breakfast: Perverse incentives created by police overtime for court appearances

What to Do, and What Not to Do, at a Checkpoint

OUI checkpoints pop up on heavily traveled roads throughout MA every weekend. You have rights if you are stopped at one of these checkpoints, but it’s important to keep the following in mind – the U.S. Supreme Court ruled that OUI checkpoints are legal. So, while you do have rights, you must stop at a checkpoint if directed to do so. Read on for more information about what to do, and what not to do, if you are stopped.

OUI Checkpoint Dos

  • If you are directed to stop, do so as soon as it is safe to pull over. The requested stops are usually done at random, so don’t panic if you are directed to pull over.
  • Stay calm, and politely follow the officer’s instructions.
  • Provide law enforcement with requested information, such as your driver’s license and vehicle registration. Failing to do so may cause suspicion and result in further complications, even your arrest.

OUI Checkpoint Don’ts

  • Avoid violating traffic laws when you are driving through a checkpoint. This may sound obvious, but it’s easy to make mistakes when you are panicking. Don’t make illegal U-turns, use excessive speed, or ignore an officer’s signals to pull over. These actions could give police reason to suspect you of OUI.
  • Don’t unnecessarily incriminate yourself. If police ask if you’ve had anything to drink, politely decline to answer the question. Although you may think it will help your case to say you’ve only had one or two beers, this statement can be used against you. In fact, other than providing police with identifying information, such as your license and registration, you should – politely – decline to answer any questions that police ask you.
  • Decline field sobriety tests. You are absolutely able to refuse field sobriety tests; politely decline and inform police that you know it is your right to refuse.
  • Do not volunteer to take a breath test. If you haven’ been arrested, you are not required to submit to a breath test. Once you have been arrested, there are penalties for refusing. However, in some cases these penalties are less severe than the potential penalties of an OUI conviction. It is impossible to give a blanket statement as to whether you should or should not refuse a breath test if arrested for OUI. This can only be determined on a case by case basis, incorporating factors such as prior criminal history and OUI convictions. A Boston defense attorney can help you understand how refusing a breath test might impact you, based on your personal circumstances.

Massachusetts is tough on OUI. Even first-time offenders may see jail time, have their license suspended, and be required to have an ignition interlock device (IID) installed. These devices require a driver to provide an alcohol-free breath sample before his or her engine will start, and periodically throughout the drive. Second and subsequent offenders will have even stiffer penalties. If you made the mistake of driving while intoxicated, don’t make another one by hiring the wrong attorney. A skilled MA OUI attorney can make all the difference in the world.

Source: What to Do, and What Not to Do, at a OUI Checkpoint in Massachusetts — Boston Criminal Lawyer Blog — March 22, 2017