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Last month’s blog discussed how marijuana legalization could change DUI stops in California. Field sobriety tests are a method law enforcement may use to determine if you are under the influence of alcohol or drugs. More can be said about the standardized field sobriety test (SFST) and its weaknesses.

Three consecutive tests, which are sanctioned by the National Highway Traffic Safety Administration (NHTSA), make up the SFST. These three tests are as follows:

  1. Horizontal gaze nystagmus. For this test, a police officer requires you to follow an object with your eyes. An officer is looking for two things: an inability to follow the object and eyeball jerking (nystagmus).
  2. Walk and turn. With this test, officers require to you to take nine paces (heel-to-toe) in a straight line in one direction, and then in the other. A police officer is looking for trouble with balance or an inability to walk in a straight line.
  3. One-leg stand. This test is what it sounds like. You must raise one foot six-inches off the ground for thirty seconds. An officer is looking for trouble balancing.

There are also non-standardized field sobriety tests. You may have heard of these before. Non-standardized tests include reciting the alphabet or touching your finger to your nose.

Can I Fail a Field Sobriety Test While Sober?

You could fail a field sobriety test if you are sober. Certain medical conditions, such as a panic disorder or a bad back, could make it impossible to complete a field sobriety test. Your clothing, the weather and certain medications could also hurt your performance.

Also keep in mind, police cruiser dashboard cameras will record your attempt to pass field sobriety tests. This evidence may be used against you by the prosecution. These are all risks you should keep in mind before agreeing to take a field sobriety test. If you are arrested, then your decision to take the test could make it more difficult to defend yourself from a DUI charge. You can refuse to submit to the field sobriety tests described in this blog.

You should speak to a criminal defense lawyer if you were arrested for a DUI, regardless of whether you took a field sobriety test. If you or a family member were arrested for a DUI, then Hayward criminal defense lawyer Louis J. Goodman could discuss your situation at no cost during a consultation. You can reach Louis J. Goodman by calling (510) 582-9090 or by using our online contact form.

As you already know, recreational marijuana was recently legalized in California. Law enforcement agencies have expressed concern that legalization will lead to more instances of impaired driving. However, there is no state law that defines what qualifies as “impaired” for a marijuana DUI.

In California and other states, you must have a blood alcohol concentration (BAC) of .08 or more to be charged with a DUI (over 21 years old). No such threshold exists for marijuana. In addition, the psychoactive ingredient in marijuana (THC) can stay in your system for weeks or days. A person could be pulled over while sober but could test positive for marijuana they had smoked days or even weeks ago. Furthermore, no such threshold for marijuana impairment has been determined.

California law enforcement officers are developing new ways to catch people who are under suspicion of driving while high on marijuana. Possible changes, some of which have been implemented, include but are not limited to:

  1. Increased use of drug recognition experts. These are law enforcement officials who undergo specialized training to recognize drug intoxication. The California Highway Patrol (CHP) recently announced they are hiring additional drug recognition experts. In addition, CHP has launched an independent study to learn more about how marijuana impairs drivers.
  2. Saliva swab tests. Some California police departments have field-tested advanced saliva swab tests. Officers in San Diego have used the Dräger DrugTest 5000 to detect the presence of up to seven drugs. Like many tests for marijuana, saliva swab tests cannot determine impairment.
  3. Marijuana breathalyzer. We recently published a blog on the “marijuana breathalyzer”. These devices would function in a similar way to alcohol breathalyzers. However, the devices have only been field tested and are not currently in use.
  4. Continued use of field sobriety tests. Officers may use the classic three-part, NHTSA-sponsored field sobriety tests. These are the tests where you must walk a certain number of paces heel-to-toe in a straight line, follow an object with your eyes or stand on one leg and count. You are not required by law to take these tests.
  5. Continued use of blood and urine tests. While not necessarily a change, officers will likely continue to use blood and urine samples in conjunction with other types of tests. However, the officers must have demonstrated probable cause for an arrest to carry out these tests.

Arrested for a Marijuana DUI? Call Our Hayward Marijuana DUI Lawyer

Hayward DUI lawyer Louis J. Goodman has decades of experience practicing criminal defense law. Before establishing his practice, Louis. J Goodman served as a former Deputy District Attorney. If you have questions about your legal rights after a DUI arrest, then you have come to the right place. We charge nothing for an office or phone consultation.

Here’s a weird glitch that has been coming up lately that people should be aware of. It comes up in the context of a DUI conviction following an Ad Min Per Se suspension of the client’s California Driver’s License.

Assume a routine, garden variety DUI and a timely request for an APS hearing. Following the hearing DMV suspends the CDL for 30 days and follows that suspension with a 5 month restriction. Generally speaking this would call for an SR22, proof of DUI school enrollment, $125 reissue fee, and an Ignition Interlock Device (IID – Blow & Go). Assume further that the criminal matter is resolved in Court on the same day as the APS suspension goes into effect.

In theory, the Court should abstract the DUI conviction to DMV on the day of the plea, and the APS suspension and the DMV suspension as a result of the conviction would run concurrent. However, in Alameda County, and I’m told, in other counties using a similarly branded computer system, the abstract is sometimes not sent to DMV until months later. The Court therefore fails to timely update the DMV.

In the meantime, the Client, trying to do the right thing, gets her restricted license and an IID. Some months later, when the Court finally abstracts to DMV, DMV notifies Client that she must put another IID on her vehicle at her own expense. Although the DMV record shows that an IID was in fact installed for the requisite 5 month period, the DMV will not credit that IID time.

Unfair? Clearly. But both DMV and the Court point fingers at each other saying that the other’s computer, procedures, or view is wrong. The Client is caught in the middle without remedy.

I have suggested to clients that they not put the IID on their vehicle until ordered to do so by DMV and following the abstracting of the record by the Court to DMV.

I’d be very interested to know if others have run into this problem and if there is some clever fix.

I apologize for the rather wonky discussion, but it will be pretty straightforward for anyone who has dealt with it.

Despite all the handwringing about driving under the influence of marijuana in the brave new world of legalized recreational pot, little will change in terms of motorist behaviors, arrests, or prosecutions.

As a longtime criminal defense attorney and former prosecutor who has handled thousands of DUI cases, I note that there is a substantial difference in DUI alcohol and DUI marijuana. Marijuana simply does not affect driving as negatively as alcohol. While most DUI alcohol arrests are made because of police stops based on obviously bad driving, most DUI MJ arrests take place after the police have made a stop for some other minor infraction (taillight, registration violation, routine traffic matter), and then smell marijuana in the car.

Despite legalization, incidents of DUI MJ will not significantly increase. Let’s not kid ourselves, people who choose to smoke marijuana have not been much deterred by the fact that it was illegal. Moreover, due to legalized medical marijuana being readily available, there has been a reliable supply of high quality, THC laden, pot available to virtually anyone who wanted it. Legalization is unlikely to significantly increase the number of people who smoke pot, nor for that matter, likely to increase the number who drive while under its influence.

For a prosecutor to win a DUI case, she must prove to a jury that the defendant’s ability to drive was significantly impaired by use of a substance or some combination of substances, beyond a reasonable doubt. Modern legislation deems that anyone with a .08 blood alcohol is driving illegally, whether or not their driving is actually impaired. The .08 level was determined after much scientific research and testing. For a variety of reasons, no such testing has been done on marijuana levels and driving performance, therefore, prosecutors have no reliable blood/marijuana tool at their disposal. Therefore, a DUI MJ case would have to be made on circumstantial evidence: bad driving, accident, smell of pot in the car, poor Field Sobriety Tests, admissions of the defendant, etc. This is not an impossible prosecutorial standard, but it is far more difficult than simply proving .08 or higher. Add that to generally friendly to marijuana use Bay Area juries and it is not hard to see the uphill battle a DUI MJ prosecutor faces.

The reality is that legalization will cause only a marginal increase in marijuana use, a minor increase in DUI MJ, little change in DUI MJ detection and enforcement by police, and not much change in prosecutorial attitudes toward DUI MJ cases.

I recently had a discussion with some friends who expressed frustration about not being able to vote in elections that they cared about because they did not live within the voting jurisdiction. There are lots of ways to influence an election. You can knock on doors, leaflet, make phone calls and you can donate money. Campaigns are expensive and have to be financed by somebody. TV costs money, phone banks cost money, flyers, yard signs, pizza for volunteers, all cost money. In the recent 2016 Republican Presidential Primaries candidates averaged about $40.00 per vote cast. An Alaskan Senate campaign cost the candidates over $100.00 per vote. Local elections are less costly, often coming in at around $12.00 a vote. The point being that running for office is expensive and candidates need financial support. Let’s be clear, money, in and of itself will not win an election (Hillary Clinton vastly outspent Donald Trump.) but no campaign can run without money.

One friend, who is highly educated, well employed, and who I admire very much, said that he believed that a campaign should just be a reasoned debate between candidates and then voters vote on the best person. Money should not come into it. Much as I might like this utopian myth, I recognize that reality dictates otherwise.

Here’s my point: If you like a cause or a candidate, send the campaign some money. It’s easy to do, just go to their website, find the prominently displayed “Donate” button and take it from there. Send what you can, even ten or twenty dollars really helps. More importantly, you and I can say that we participated in the democratic process, even though we did not ourselves get to vote directly, and regardless of the outcome, we made an effort to positively affect government by the people.

 

Police Drones

The New Year will undoubtedly see an increase in the use of surveillance drones by law enforcement. Already in use by an increasingly militarized police community, these tools have the potential for enormous positive and negative impact. As with much new technology what is positive and what is negative is a matter of perspective. And as with much of new technology, numerous companies and designs compete for the attention of the law enforcement dollar. (more…)

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At this Thanksgiving season, I have been giving some thought to all for which I have to be thankful.

I am grateful for my health.
I am grateful for my strength.
I am grateful for my family and friends.

At the Thanksgiving table I will be grateful for:
The feast before us.
My hosts. The guests. The conversation. The tolerance.

We recognize our good fortune and hope that next year those less fortunate will be more fortunate.

I am grateful for my work, the people I work with, and the clients who have entrusted me with their issues and cases.

I am grateful for my liberty and the courage of my convictions.

Here is a prayer that is not original, but that I like:

Let me always seek the truth,
But deliver me from those who have found it.

Happy Thanksgiving – Be safe and happy.

The phone rings. Someone claiming to be from the IRS says that a criminal complaint for non-payment of taxes is about to be filed against you and that you can avoid this by paying some sum immediately using a cashier’s check.

I don’t know anyone who has not received such a phone call at one time or another. If you get such a call, don’t fall for it. This “IRS” payment demand is a scam. The IRS does not make such calls or make demands in that manner.

Here’s my question: Where is Law Enforcement on this? I’m in court every day, and I have yet to see anyone prosecuted for running this scam. The scam is being run in the name of the government, people are falling for it and losing money, yet enforcement seems quite lax. Here’s what I would like to see:

• An advertised email and phone number to report these solicitations to Law Enforcement.
• Investigation and Prosecution of those responsible.
• Restitution paid to those who have been victims of this crime.

Feel free to copy and paste some or all of this blog post into an email to your State Representative, Congressperson, U.S. Senator, or Local Official.

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After the arrest for an assault outside an East Lansing, Michigan bar on a late Saturday night, professional and Olympic basketball player, Draymond “Money” Green, has provided some valuable lessons in addition to his later apology and commentary on the matter. It was later discovered that once Green was booked into custody that night, he submitted to a preliminary breathalyzer test which resulted in a .10 blood alcohol content level. The victim of this assault, Jermaine Edmondson, a football player of Michigan State, claimed he was punched in the jaw by Green after bumping into each other in a crowded bar and exchanging bitter words.

It is a sad reality that in our criminal justice system today, offenses are largely driven by alcohol use and other substance abuse. There’s also a tremendous opportunity, however, to avoid finding yourself caught in this system by simply abstaining from alcohol or moderating your consumption. Blowing a .10 places you squarely in the range of a DUI should you put yourself behind a wheel. But having that same BAC level may just as easily put you in a situation leading to other criminal offenses, such as assault or public intoxication.

Just as a side note: It’s summertime and beach time and pool time. Not to put too fine a point on it, but most drownings in the United States happen to people who have a blood alcohol level of above .10.

So don’t get arrested, don’t end up in the Emergency Room, and please don’t end up in the morgue. Keep your BA down and your chances of surviving the summer will be greatly enhanced.

And, whether you’re Draymond or anyone else in some trouble with the law as a result of alcohol and anger, our office can refer you to some excellent court approved counseling.

Submitted by: Taylor Moudy, Attorney at Law; Louis J. Goodman, Attorney at Law

In an age of unlimited talk and text, free long distance and video calling, and pennies-per-minute international rates, the thought of charging upwards of $100-per-hour for speaking with inmates over the phone sounds quite bizarre. Such charges may even sound criminal.

In a revealing online story, Criminal Charges, published last week, The Verge news editor Colin Lecher wrote of the predatory practices of prison phone monopolies and a recent lawsuit won by a family who decided to fight back. The story provides some interesting insight into the obscure regulatory and business practices of monopolistic telecoms across the country who control access to the communication network for millions of inmates.

One company mentioned in the article, Global Tel Link, is the sole provider for most, if not all, inmates in custody here in California county jails. Based on our experience, rates vary heavily on a variety of added fees and surcharges, but may generally equate to an exchange of no less than $25-per-15-minute conversation. Connection Networks, a subsidiary of GTL that handles financial billing, provides the “convenient” option of auto-paying the billing account whenever the amount falls below a certain threshold, ensuring not only that funds are available for use but also that they will always have at least that amount of your money to hold. Other evidence suggests that deposited funds may be forfeited, that is, they are nonrefundable if left unused for a period of time.

What remains is a variation of the old adage: If you commit the crime, not only you will pay for the time.

Criminal Charges by Colin Lecher, The Verge

Blog Post by Taylor S. Moudy, Esq. Law Office of Louis J. Goodman