Defense Lawyers Seeing More DUI Charges Under .08 in Washington

Defense lawyers in eastern Washington are seeing more and more people charged with DUI with breath alcohol levels of under .08.   Under Washington law, a prosecutor can convict on a DUI if a person is over .08, or if the individual is “affected” by the alcohol.  This second option is referred to in court as the “affected by” prong, and defendants are usually pretty surprised to learn the law on this subject.

DUI lawyer

In rural areas such as Lincoln county, Stevens county, or Adams county, DUI arrests are in rural locations with few witnesses present.

For years this second prong was largely ignored by prosecutors, meaning if a prosecutor didn’t have a breath test or blood test result of over .08, no charges would be filed.

Legal Strategies on DUI Charges < .08

The strategy a defense lawyer uses on a DUI under .08 can be dramatically different than other DUI’s.

Traditionally, a defense lawyer will fight tooth and nail to try to exclude the breath or blood test, or to try to get the test results “thrown out of court.” However, if a defendant has an alcohol level of under .08, it will often be the defense lawyer who will fight to have the results admitted.  In the perception of some jurors, a test result under .08 means the defendant “passed” the test. When a prosecutor takes a DUI to trial and the BAC (blood alcohol content) is under .08, he or she usually will attempt to prove that the defendant is “affected” by the alcohol by showing that the defendant did not do very well on the roadside filed sobriety tests.  But as you can imagine, these sort of test are highly subjective.  In my practice as a defense lawyer, I often will request a copy of any video showing the defendant on the night in question.  Usually the defendant will be shown to be in far better shape than the police officer might suggest. Many jails will have video recordings of the defendant when he or she was booked or when he or she took the breathalyzer or breath test.  It is important to have an attorney request this video right away because usually the jails will record over it within a matter of days if it is not preserved.  Even if the arrest is made by the State Patrol, it is the local county or city that keeps the video. Some police stations (such as the Grand Coulee police department in Grant county) do not have video in the BAC room.  Other sources of video evidence is any video camera the officer might have in his or her car, and sometimes officers will wear a “body cam“.  In more metropolitan areas like Spokane, security camera video footage might exist from nearby businesses.  This is less common on the rural roads of Stevens or Lincoln county, but even towns like Colville or Davenport have businesses with security systems monitoring their parking lots.  If a defendant is truly intoxicated, such evidence can be very incriminating because it will show the person staggering or loosing his or her balance. However, in cases with low alcohol levels, such video footage is crucial to the defense.

Strategies Prosecuting Attorneys Use

When a defendant has a breath test under .08, the prosecuting attorney will sometimes argue that the defendant’s alcohol level was actually higher at the time of the traffic stop.  A human body will burn off .015 alcohol per hour on average.  So if a defendant is stopped at 9 p.m. and blows .070, the prosecutor will argue that he or she was actually .085 at the time of the stop at 10 p.m.  Sometimes in DUI trials, the prosecutor will call toxicology experts from the state lab to come testify on this subject.  In large rural counties such as Lincoln County, Adams County, of Grant County a defendant might have considerable travel time to get to a breath instrument.  However, it is possible that a person got behind the wheel and was stopped prior to full absorption of any alcohol consumed.  Usually all alcohol will be absorbed between 2 and 20 minutes after drinking.  More urban counties such as Spokane might have more than one breath test instrument, but in rural counties such as Lincoln County, Adams County, or Grant County, the police have fewer options.

Washington road

The transport time from arrest to a jail-house breath test can be substantial in rural areas such as Lincoln County, Okanogan County, and Grant County.

There are breath test instruments in the county seats of Davenport, Ephrata, and Ritzville, WA, and sometimes in the smaller cities.  Some counties, such as Okanogan County, have breath instruments at the Tribal jails on the local Indian reservation.  These instrument are located on sovereign land, but are still owned and maintained by the WSP and Toxicology lab.  In Grant County, Washington, there is also a mobile BAC unit.

PBT Tests in DUI Cases

When the police stop a person for DUI or DWI, they will usually ask a suspect to blow into a portable breath test or PBT.  These PBT’s are not very accurate, and the results are not admissible at the jury trial.  When the police stop someone they will usually either arrest someone or let them drive off.  This can be a hard decision for the police.  If they improperly allow someone impaired drive off, they could face a lawsuit.  However, if they arrest improperly, they could also face a suit.  As a criminal defense lawyer, I worry that fears of false-arrest lawsuits might motivate the police to exaggerate a suspect’s intoxication.  In decades prior, police may have simply given the defendant a ride home if they were not sure of their impairment, but those days have come and gone in eastern Washington.

In DUI cases involving alcohol levels under .08, prosecuting attorneys will usually be quick to make plea offers of reduced charges down to negligent driving first degree.  However, such a plea deal will count as a prior alcohol related offense in case someone ever gets into trouble again.  Convictions for Negligent Driving First Degree can also make entry into Canada difficult, and can affect a commercial driver’s license.  Under a new law that went into action September 1st, the Department of Licensing may require ignition interlock devices for Negligent Driving or Reckless Driving under certain circumstances.

For more information about DUI, see here.

Boat Accident Expert Determines True Cause of Collision

I had a case recently where I used an out-of-state boat accident reconstructionist.  I don’t blog about my own cases too often, but the case was unusual enough that it is probably worth reflecting on.  The boat accident expert we used was Phillip Odom of H2O Investigations, and he was helpful in resolving this case.

In the U.S., boat death fatalities only number about 700 per year, so there just aren’t many experts on boat accident reconstruction.  I spent a couple of days on my hunt for an expert, and did a lot of research.  I stumbled upon one lawyer’s website  which warned: “What you don’t know about motor vehicle or boat accident reconstruction can get you into a lot of trouble in court.”

Image of Boat Accident Expert

A photo of a boat accident experiment staged by Phil Odom for the State of California

We know because we have been instrumental in getting a lot of “experts” disqualified or voluntarily withdrawn.”  The article sites a federal case from the 5th Circuit that spells out the criteria the courts use in determining whether an individual is qualified to be a boat “accident reconstructionist”.  There is a lot more than simply taking a class in accident reconstruction.  Courts will look to the training and experience, any experiments a person has conducted, and whether he or she has taught any classes on accident reconstruction.  The boat accident expert we found, Phil Odom, used to teach boat accident reconstruction for the State of California, and you can see from his website that he has conducted dozens of scientific experiments to back up his training.  Phil Odom has conducted over 70 different experiments with boat collisions, and was the operator of the vessel during the tests.  Many of these tests were conducted between 2006 and 2008, and California does not conduct such tests today.

The State's accident investigator wrote: "Upon further and closer inspection of the vessel I found that there was no physical damage to the two Honda motors attached to the rear of the vessel, the lower units, the propellers, or skegs." As this photo depicts, there was damage to the engine, and the damage was indicative of a foreign object being stuck in the steering.

Like a lot of boat accident experts, he got his start in the early years of his career investigating motor vehicle fatalities, which are of course much more common.  He was thorough as a vehicle accident investigator and won awards from such groups as Mothers Against Drunk Drivers.  In the case where I used him, we flew him up to examine the boat in question a couple of months prior to trial.  He noticed some damage done to the engine that was indicative of a vessel that had something caught in the steering, thus corroborating the defendant.  The damage was not immediately apparent to everyone, and even the prosecutor’s accident investigator failed to notice this crucial damage.  As with motor vehicle accident reconstruction, boat experts must be knowledge about the applicable mathematical formulas required to reconstruct what occurred.  During our trial the prosecutor’s accident investigator was asked to come down to the easel to explain to the jury how to convert feet-per-second to miles-per-hour and yet was unable to do so.

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Accident Reconstructionist Phil Odom analyzing GPS data with an attorney via Skype

The accident investigator hired by the prosecutor did not notice the damage to the engine, and wrote in his report that the motors were undamaged.  When Phil Odom explained to the jury the damage to the motor, he explained that damage to metal must be inspected closely because you can often see in what direction the metal was forced or twisted.  In the case I did, I actually printed out enlarged photographs to each juror so that they could follow along.  Phil Odom also testified on the subject of occupant kinematics, which is the study of the positioning of the bodies in the vessel at the time of the collision.  Generally speaking, the injuries to the human occupants follow the direction of force.  In this case, the vessel struck a fixed barrier in the front right-hand corner.  The prosecutor’s investigator was not permitted to testify as to the subject of occupant kinematics due to his insufficient experience.

There were other issues in the case that assisted the defense, in that the defendant was not intoxicated, but Mr. Odom’s discovery of the steering jam was important to our defense.  You might expect that a witness such as Phil Odom would be outside a defendant’s price range, but in this case our expert was actually about the same price as the state’s investigator who had never testified as an expert before on boat accident reconstruction.  We had to fly in Phil Odom from Arizona to inspect the boat and again to testify, but it was worth it.  The lawyers that I talked to prior to hiring him described Phil Odom as one of the top three boat accident experts in the country.  After my trial, I spoke to the jurors and I know they were impressed by his work.

Post by Steve Graham

In Defense of Amanda Knox – What to Expect From Her Lawyers’ Closing Argument

What will Amanda Knox’s lawyers say on her behalf when they deliver their closing argument Wednesday?  I am predicting that they play it fairly conservatively, and that they don’t try to oversell the defense. They will tailor their arguments to the judge and jurors and not the world stage.  We will have to wait and see, but here are a couple of themes that I am predicting they focus on.

No Motive (Women don’t commit rape)

We are accustomed to the outlandish sort of crimes that occur on T.V. shows, but in reality but the fact remains that women don’t commit rape. There are many technical rules that apply in a court of law, but that doesn’t mean that you have to check your common sense at the door.  Women don’t rape.  Italian women don’t commit rape.  American women don’t commit rape.  Women aren’t committing the rapes that are happening in the Sudan right now.  It is not in their nature.  It is usually committed by men – acting alone.

What a “Not Guilty” Verdict Means

All a “not guilty” verdict means is that the government, for whatever reason, hasn’t proved their case.   It doesn’t mean the police did a bad job.  It doesn’t mean that Amanda is “innocent”, and it doesn’t mean she is a perfect person.  A “not guilty” verdict doesn’t amount to putting a halo over Amanda’s head.  It just means that there is a doubt.  And if there is ever a doubt in any case, it is this one.  We don’t send people to prison for life unless we are absolutely sure.

I am not expecting that the defense team will attack the police and prosecutors too aggressively.  It is a trial lawyer’s job to attack the thoroughness, the fairness, and sometimes the professionalism of the police during a trial if need be.  But during the closing argument it is best to tone it down and be a little more magnanimous.   It is sometimes best to credit the police for the things that they did do correctly.  Jurors generally feel loyal to to the police on many levels, and are dependent on them for public safety.  They are slow to buy off on a world view where the police are dysfunctional to the level outsiders have seen.  I am sure that many of Knox’s supporters would love to see a blistering attack on the police, and to see them called out on their misdeeds.  However, if Knox’s lawyers push that too hard, then it becomes an issue of national pride, and the next thing you know we are at the supreme court in Rome.

It is sometime acceptable to try a riskier strategy to try to shake things up, but this is when you feel you are not succeeding and you have nothing to lose.    I guess you saw that with Giuliano Mignini last week.  But to be honest, that man is so erratic, it is hard to say what he is thinking.  The closing argument of Patrick Lumumba’s lawyer Carlo Pacelli was just plain odd.  Not to be upstaged by Mignini, Pacelli called Amanda Knox a “witch of deception”.  I am not sure if he is just trying to get some publicity, or if he thinks that is good lawyering.  Doesn’t he know that we sometime refer to this case as a “witch trial” already?  Isn’t he just proving our point?

What do you think?  What arguments do you think Amanda’s defense team should advance?

Latest Amanda Knox News: The Problems with the Prosecutors’ Closing Arguments

Today during his closing argument, prosecutor Giancarlo Costagliola vouched for the credibility of known heroin addict Antonio Curatolo, who claimed during the criminal trial that he saw Knox and Sollecito near the crime scene the night of the murder.

Prosecutor Giuliano Mignini. (Photo by

Curatolo’s testimony unraveled during the appeal when Curatolo’s story grew more implausible as he claimed buses were running and students were congregating on a night when the buses were not running due to the disco being closed.  During his closing argument, Costagliola apparently minimized the effect of heroin use on a person’s perceptions and credibility, which led Perugia Shock blogger to sarcastically write:

Heroin doesn’t give hallucinations …  your perceptions won’t change. You can work the same if you take heroin. You can follow a class without any problem. You can work at the assembly line. You can manage your clients’ money. You can operate on your patients. You can sit on the directors’ board. You can sit in court to testify, or to judge people. It doesn’t give you hallucinations. So, why do people take it if it doesn’t give them not even a bit of hallucination?

In the U.S. the testimony of known drug addicts is so troubling that courts often will issue an “addict instruction” to the jurors cautioning them to be careful in considering the testimony of an addict.  The instruction usually goes like this:

The testimony of a drug addict must be examined and weighed by the jury with greater care than the testimony of a witness who does not abuse drugs. An addict may have a constant need for drugs, and for money to buy drugs, and may also have a greater fear of imprisonment because his or her source of drugs may be cut off.

I noticed the prosecutor Giancarlo Costagliola also asked the jurors: “As you make your decision, I wish that you jurors feel a little bit like the parents of Meredith Kercher…”.  For what it is worth, in the U.S. these sort of put-yourself-in-the-victim’s-shoes type of arguments are considered prosecutorial misconduct, and are banned in courts.

Not to be out done by Costagliola, Mignini himself made some pretty outlandish statements today, comparing the Amanda Knox defense claims to Nazi propaganda. Mignini argued that the defense committed: “…slander, slander, slander in the hope that it some of it will stick. It’s worthy of the noted propaganda minister of Nazi Germany in the 1930s.”

Who was impressed by all this nonsense?  Pretty much just Barbie Nadeau, who headlined her article as follows: “Knox Appeal Hits a Snag – Since her appeal began, Amanda Knox has appeared to be sailing toward an acquittal—but the prosecution’s powerful closing argument today could alter her fate once again.”  Is she kidding?  Apparently in the mind of Barbie Nadeau, the jurors said to themselves: “Hmmmm…. maybe we shouldn’t acquit.  Mignini DID have a pretty good point about our war-time allies the Nazis.”

Lastly, Mignini made reference Rudy Guede and argued: “Don’t let the poor black guy be the only one to pay the price for this murder.”  The best response to this was by EdLancey in the comment section of Nadeau’s article.  He wrote: “Have you ever heard a more disgusting comment, the poor girl’s room was covered in his [Guede's] bloody footprints and semen, and this lunatic tries to play the race card.”


Book Review: The Goose That Laid The Golden Egg – by Doug Bremner

I just finished the book The Goose That Laid The Golden Egg, by Doug Bremner.  The book describes Dr. Bremner’s attempts to study the side-effects of the acne medicine Accutane, and the book chronicles his life’s unraveling in the face of a smear campaign by the drug company Hoffman-La Roche.

Teenagers who had taken the acne drug Accutane had an increase in risk of suicides and suicide attempts. In 2002, a teenager who had taken Accutane intentionally flew a plane into an office building.

Doug Bremner was working for Emory University in 2001 when he was approached by the father of a boy who had killed himself after being prescribed Accutane. Having no real idea of what he was getting into, Bremner volunteered to conduct studies and ended up in the vortex of a multi-million dollar battle between a ruthless pharmaceutical company and shark trial lawyers working for the plaintiffs.

Roche took the drug off the market in 2009, but not before accumulated statistics on suicides, birth defects and stunted growth attributed to the medicine.  Roche warned of possible side effects in the fine print, but the company soon began pushing sales of the drugs to kids with just normal teenage acne.  You will recall that this sort of pressure for more and more sales is what motivated Purdue-Pharma to be fined $600,000,000 for over-marketing OxyContin as a “safer alternative” to Percocet or Vicodin. (See earlier post.)

Bremner signed on as an expert witness for plaintiff’s counsel for several families that sued Roche when they lost teens to suicide. I came to learn a little bit about what it is like to be a witness in a high-pressure court case by reading this book. Bremner was grilled by defense lawyers in 15 different, day-long depositions where he was forced to answer endless questions over a course of years. At Roche’s apparent urging, Bremner was brought up to defend ethics charges at the university where he worked, and Bremner’s life slipped out of control as one of the world’s richest corporations did everything they could to publicly discredit him.  The lawyers working with Bremner failed to prepare him or fully protect him, and the stress pushed Bremner away from his family. Bremner tried to keep centered by reminding himself that he was helping the families of Accutane patients, but this only carried him so far.  He escaped by taking long drives where he researched the background of his mother who died when he was just 4 years old.  But this angered his other family members, who viewed this as an affront to his stepmother.  Feeling alone, Bremner grew too close to an ex-girlfriend from high school in an online friendship.  Bremner resolved these issues on a therapist’s couch, and in the book he mused on New Age religions, particle physics, genealogy, and contemporary music.

Doug Bremner M.D. dared to speak out and conduct studies on the side effects of the drug Accutane. This book describes his battle.

The book ends on an upbeat note as Roche pulled the drug from the market. Also, Bremner’s biggest detractor is exposed as being secretly on the payroll of Big Pharma.  Doug Bremner healed his familial rifts when he smartened up and refocused on his wife.  Bremner’s efforts to learn more about his mother led him through a trail of dinky towns in eastern Washington, which is the same area where I live and practice law.  In the end, Bremner held a long-overdue burial service with his mother’s ashes.

Someday, society will hold these drug companies to higher standards of decency, and they will not be able to stall and hide these side effects for so long while they reap billions of dollars.  But until this day, Doug Bremner will go down in the history books as a champion of the forgotten patients, as a physician who told the truth at great personal cost, or simply dared to conduct basic studies in response to patient complaints.

Doug Bremner writes in the book: “I don’t know how I got dragged into this mess… I always avoided controversy and confrontation like the plague.”  I am sure Doug Bremner was selected as an expert witness because he was honest, well-credentialed, and could connect with a jury.  But to take on a project like this, it helps to have a hide like an alligator.  This book is an amazing personal story of a man who nearly lost everything in his bid to stand up for families harmed by a company that pushed Accutane for profit – it is definitely worth picking up.






Amanda Knox Has a 91.5% Chance of Being Set Free

I think Amanda Knox has a 91.5% chance of being set free this month when her appeal is concluded.  That is my expert opinion as a practicing criminal lawyer who has followed this case closely. In other words it is just a wild-ass guess.  But as everyone just powerlessly sits and wait, this “percent chance” question seems to be what everyone is asking.  I have seen this “percent chances” question asked in blog forums and also in the comment section of Murder in Italy‘s Facebook page yesterday. Ultimately, all any lawyer can do is try his or her best to convince the judge or jury.  There are no assurances of outcomes. Oftentimes, people will study the slightest thing judges or juries do in order to divine what result will be reached.

Amanda Knox meets with her lawyer, Luciano Ghirga. Her appeal is going well, and closing arguments begin on September 23rd.

For example, it was generally viewed as a good sign when Judge Pratillo Hellman denied the prosecution’s request to have the DNA re-tested again.  However, I suppose one could interpret this as meaning the judge believed the prosecutor’s case was sufficient without the DNA, and wished to spare the prosecution the trouble and delay.  I have a feeling that when closing arguments begin on September 23rd, the lawyers will pretty much feel that they have made many of their points already.

One of the other things I wonder about is what sort of life Amanda Knox will have if she is freed and returned home.  Surely that would be a good day to look forward to, but Mignini’s injustice has already done irreparable harm to Amanda and her family.  My experience has been that individuals cleared of serious allegations experience a short “high” upon their release, but later dwell bitterly on their mistreatment when they reflect on time lost, legal bills, and the torment on their family members.  In my opinion no sort of court victory will be complete without Giuliano Mignini being held to account and without reform in the Italian criminal justice system.  While the press in the U.S. has been more fair to Knox, Americans too can be cruel.  Mignini’s attacks and half-truths have reached our shores as well, and not just by the Lifetime T.V. network.  It seems Giuliano Mignini should face separate criminal charges for how he has handled the Amanda Knox case.  My expert opinion is that upon Knox’s acquittal, Mignini has a 96.2% chance of never practicing law again.

What do you think about the latest developments in this case?

Reporter Jonathan Martin Obtains Medical Marijuana Authorizations at Hemp Fest

In the 13-year history of Washington’s medical marijuana law, the Department of Health (DOH) has not taken disciplinary action against any health care provider related to medical marijuana authorizations.  However, DOH has opened an investigation recently into health care providers who are claimed to have issued the authorizations at Hemp Fest in Seattle.  It pretty much started when a reporter from the Seattle Times, Jonathan Martin, stopped by a booth set up by 4Evergreen, and claims to have walked off with a medical marijuana authorization 11 minutes later.  To get the authorization, Martin complained of “a four-year problem, treated by physical therapy, prescription, and over-the-counter pain remedies, with weekly flare-ups ranging from slight to severe.”  This article pretty much highlights a difference in philosophy between medical marijuana  advocates and others in the state.  Many think medical marijuana should be a drug of last resort, whereas others view medical cannabis as a safer alternative to other powerful drugs such as hydrocodone or OxyContin.  It would have been interesting for Martin to have conducted a similar experiment to see how easily he could obtain those prescription drugs.  I would bet that his similar complaints could have led to a prescription for OxyContin in a lot of doctor’s offices.

The story by Jonathan Martin reminds me a little bit of what Clel Baudler did when he was fighting medical marijuana in Iowa.  Baudler, who is a state representative, traveled to California and lied about a medical condition in order to demonstrate how easily he could obtain a prescription.  He admitted he lied, and later faced ethics charges over the incident.

What do you think?  Should state law be amended to make it harder to obtain authorizations?

Marijuana DUI – A Washington Lawyer’s Perspective (Part II)

Last month in Marijuana DUI (Part I), we discussed the extreme difficulty the scientific community has had in measuring the effects of marijuana on a person’s ability to drive. In part two of this blog post, we now turn to the practical difficulties criminal defense attorneys face in defending marijuana DUI charges.

Jury Selection on a Marijuana DUI Case

As a starting point, it is pretty much the experience of every defense lawyer that jurors tend to analogize marijuana to alcohol when it comes to DUI.  As we discussed last month, there is no .08 limit for marijuana for THC.  Consequently, jurors cannot convict a person based on a “number” alone.  The criminal cases then turn when the prosecuting attorney proves that the person was actually impaired by the marijuana use.  But how does marijuana impair a person’s ability to drive?  Jurors have a wide range of views and experiences on this subject. Many jurors have never used marijuana, and so they are inclined to think of it in terms of drugs they have tried such as alcohol or prescription pills. Additionally, some jurors may have used marijuana in their youth and experienced a strong, somewhat hallucinatory experience as a first-time user. As one would imagine, asking prospective jurors about their experience with illegal drugs can be a little awkward.  In urban environments such as Spokane or Seattle, jurors have a bit more anonymity during the jury selection process. However, in rural locales such as Okanogan County, Stevens County, Lincoln County, or Grant County, jurors are much more inclined to actually know one another.  A defense lawyer or a prosecutor is just not going to get a straight answer out of the jury panel on the subject of marijuana use.  Additionally, jurors in those rural counties such as Okanogan or Stevens County are going to have, on average, less accepting views toward marijuana use as a whole than say Seattle, for instance.

Marijuana Use and Observation of the Police

A prosecution for a marijuana DUI usually involves a police officer testifying about the ways he or she believed that a driver was effected by marijuana or THC. Jurors come to court knowing what a drunk person looks like, but often have no idea about the ways marijuana effects (or doesn’t effect) a person. Drug recognition experts (DRE’s) usually testify that a driver having consumed marijuana will have dilated pupils, red or bloodshot eyes, a lack of convergence of the eyes, an elevated pulse rate, elevated blood pressure, eyelid tremors, and disorientation. Compared to DUI involving alcohol, much less is taught about marijuana DUI investigation at the police academies. Officers seem to exchange tips on these investigations, and the techniques are frequently the subject of discussion in online police forums, see here, for example. Much of what the police study comes from the NHTSA manual Drugs and Human Performance. Unfortunately this volume is full of some pretty odd opinions and discredited techniques on such investigations. The manual mentions the “green tongue” phenomenon, or green coating on the tongue that a smoker of marijuana is “supposed” to have.  Additionally, the manual opines that marijuana cigarettes “are often laced with adulterants including PCP or crack cocaine,” which is something I certainly don’t hear about “often” in my practice as a defense lawyer. Officers often describe looking closely with their flashlight for flakes of marijuana that might be on drivers’ laps, or remain on the tongue or mouth of a user after smoking a marijuana cigarette.  Officers also seem to be of the opinion that hanging tree-shaped air-fresheners indicate that the driver has been using marijuana, according to above mentioned forum.

So as you can see, the current state of marijuana DUI enforcement leaves much to be desired.  The practical effect of all this is that drivers are often at the mercy of the subjective opinions of the officer as to how he or she looked.  These “evaluations” for marijuana intoxication are typically not video-recorded.

What do you think about how society should deal with this issue?  Please share you thoughts, opinions, or experiences on this subject in the comment section below.

(The author Steve Graham is a criminal defense attorney practicing in eastern Washington.  See his further information on the laws DUI or marijuana in the State of Washington.)

Marijuana DUI – A Washington Lawyer’s Perspective (Part I)

What is a “marijuana DUI”?  What does it mean to be “under the influence” of marijuana?  What is the safe level, and how is it measured?  How are marijuana DUI’s defended?

In Washington State, police officers have increased their arrests and prosecutions for Marijuana DUI’s.

Law enforcement in the last few years has really been pushing investigations and arrests over so-called “marijuana DUI’s.”  In this two-part blog post we will look at how marijuana affects a person’s ability to drive, and more importantly, how it does not.  Today we will discuss the scientific studies, and then we will come back in a couple of weeks to discuss more law, and how marijuana DUI court cases work for a defendant and the criminal defense lawyer.  It is illegal under Washington State  law RCW 46.61.502(1) to drive “under the influence” of any drug.  ”Under the influence” is typically defined as when the person’s ability to drive “is affected to an appreciable degree.”  There is no .08 equivalent for marijuana.  In each case, a police officer must prove “under the influence.”   Let’s turn to the subject of the scientific studies.

Professor Harry Klonoff Experiments in 1973

In 1973, Professor Harry Klonoff of the University of British Columbia decided to run experiments on the effects of marijuana on a person’s ability to drive a motor vehicle. Professor Klonoff provided marijuana cigarettes that contained .7 grams to his subjects, and he instructed them to smoke the marijuana by inhaling for 3 seconds, and holding it in their lungs for 15 seconds, and then exhaling and then resting for 15 seconds until the cigarette was completed.  Since the test was “double blind,” he had half the group use a placebo form of marijuana.  He then sent the test subjects out on a driving course, and then later sent the drivers out into rush hour traffic in the city of Vancouver, B.C.  (Yeah, I know, it is hard to imagine the city of Spokane allowing such a test today).  The only apparent safety precaution was that the vehicles used were “dual control,” so the cars had driver’s-education style brakes on the right-hand side where a professional observer sat.

Above is the diagram of Professor Klonoff’s driving course where he experimented with the effects of marijuana consumption on driving in 1973.

The study was extremely complex with a number of different variables, methods of scoring, and scientific controls. Professor Klonoff concluded that for some drivers the use of marijuana hurt the individual’s driving ability.  However, the study also found that some drivers performed better after smoking marijuana.   Dr. Klonoff wrote:

It is evident that the smoking of marijuana by human subjects does have a detrimental effect on their driving skills and performance in a restricted driving area, and that this effect is even greater under normal conditions of driving on city streets.  The effect of marijuana on driving is not uniform for all subjects, however, but it is in fact bidirectional; whether or not a significant decline occurs in driving ability is dependent both on the subject’s capacity to compensate and on the dose of marijuana.  For those subjects who improved their performance, the explanation may lie in overcompensation and possibly the sedative effect of the drug.

The biggest takeaway from Dr. Klonoff’s study is that marijuana does not have a predictable negative effect on a person’s ability to drive. Consequently, it is very difficult for any principled expert to testify in a court of law that a person was affected by the marijuana in any certain way. If you want to look up the article at your local medical school library, the citation is: Klonoff H. Marijuana and Driving in Real-Life Situations. Science 1974;186(4161);317-24. Klonoff’s test pretty much carried the day in the scientific community until a similar test was run in Maastricht, Holland two decades later.

The Maastricht Studies of 1993

In 1993, the U.S. Department of Transportation sponsored a study done by the Institute of Human Psycho-pharmacology at the University of Limburg in Maastricht, Netherlands.

In a study in Maastricht, Netherlands, scientists concluded it was not possible to detect driving impairment from THC levels in the blood. The study was sponsored by the U.S. Department of Transportation.

Like the Klonoff study, the Maastricht study was done by providing marijuana for the test subjects to smoke, and then monitoring their ability to drive.  Doses were provided in the THC amounts of 0 (control group), 110, 200, and 300 ug/kg.  The subjects then drove through a closed roadway and then a roadway with traffic present. As with the Klonoff study, vehicles with “redundant controls” were used as a safety precaution. In the executive summary of the published study, the scientists wrote:

This program of research has shown that marijuana, when taken alone, produces a moderate degree of driving impairment which is related to the consumed THC dose.  The impairment manifests itself mainly in the ability to maintain a steady lateral position on the road, but its magnitude is not exceptional in comparison with changes produced by many medicinal drugs and alcohol.  Drivers under the influence of marijuana retain insight in their performance, and will compensate where they can (for example) by slowing down or increasing effort.  As a consequence, THC’s adverse effects on driving performance appear relatively small.

The scientists had hoped to determine whether it was possible to predict driving impairment by the levels of THC in the drivers’ blood. However, they concluded that the answer was “very clear” that this was not possible. They explained that some drivers were impaired  with both high and low levels of THC, and conversely some drivers with high levels of THC in their blood performed quite well. For more details see: Robbe HW, O’Hanlon JF. Marijuana and actual driving performance. US Department of Transportation/National Highway Traffic Safety Administration November: 1-133 (1993). DOT HS 808 078.  The study failed to provide clear guidance to the U.S. government on marijuana DUI policy.

The Grotenhermen Study of 2007

The last study to look at is the research report entitled “Developing Limits for Driving Under Cannabis” published in 2007 in the journal for the Society for the Study of Addiction.  That study again tried to determine a limit for THC levels in a driver’s blood that would be similar to the .08 limit for alcohol DUI charges.  The scientists compared a THC blood level of 4.2 ng/ml to driving with a blood alcohol level of .04.   The study explains that the margin of error in testing is great with a confidence interval  of 3.1 to 7.7.  Due to such a large margin of error, the study suggests that a legal limit be set in the amount of 7 to 10mg/ml for blood.   Rather than base the study on driving tests, this study based its conclusions on studies done on individuals who had had their blood tested after a crash.

The Challenge to Defense Lawyers

Many jurors have difficulty understanding the way marijuana affects the human driver.  Jurors’ knowledge and experience with marijuana will vary significantly, and it can be awkward to ask about marijuana use during jury selection.  Juror views on marijuana can vary sharply between metropolitan areas like Spokane, and more rural areas like Okanogan or Colville, Washington.  Jurors usually try to analogize other drugs to alcohol, which jurors are more familiar with.  However, the effects of marijuana are very different from alcohol.  Criminal defense lawyers also have a steep learning curve in understanding the science of marijuana intoxication.  A defense attorney should consider hiring or consulting with an independent toxicologist.  Due to the complexity of the science of marijuana use, it is a challenge to all the participants of the criminal justice system.  Because the science is so vague, the representatives from the Washington State Toxicology Lab usually testify about the ways THC is “likely” to affect an individual.  The Washington state toxicologists typically base their testimony on the National Highway Traffic Safety Administration’s manual entitled “Drugs and Human Performance Fact Sheets.”  That manual cautions “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose.”  In light of the difficulty in interpreting blood test results, marijuana DUI charges often come down to officer testimony and the field sobriety tests.  We will discuss this aspect in part two of this blog post.

(The author Steve Graham is a criminal defense lawyer practicing in eastern Washington.  See his further information on the laws of Marijuana and DUI in the State of Washington.)

Who is Amanda Knox? Rolling Stone Magazine Article Sets Record Straight.

Ready for some fair press coverage about Amanda Knox?   After all, it is not just the Italian and British tabloids that suck. The Lifetime Network’s movie about the trial was pretty bad, and the coverage on the network news is hardly insightful. So check out the new Rolling Stone article about the Knox trial by Nathaniel Rich. The article is entitled: “The Never Ending Nightmare of Amanda Knox.”  If you want to pick it up at the news stand, look for the new issue with Katy Perry on the cover.

The article debunks a lot of the myths about Knox, her family, and her personal life. The article contains interviews with Knox’s friends who visit her regularly, and share what Knox is thinking and how she is holding up. The people who know Knox described her as a naive kid, with few self-preservation skills or street smarts, that she would talk to strangers, and always assume that people were good and fair.  So we see how that could be a problem in the Italian criminal justice system.  The reporter obviously spent a lot of time camped out in court, and bumped into Candace Dempsey there last month.  As an American lawyer, I found Rich’s observations about the Italian court interesting.  He writes: “…[T]here is never order in the court, the lawyers and defendants constantly interrupting the proceedings with groans and catcalls and wild gesticulations, while the press in the gallery yammers away like the kids in the back of the classroom.”  Rich doesn’t really set his sites on Giuliano Mignini so much as the evidence in the case as a whole.  The reporter does fault the Italian police officers who first arrived at Knox’s apartment.  The first officers on the scene did not have much experience, and he compares the investigation to something out of Scooby-Doo.  The article contains an interview with Giuliano Mignini, and that probably was not easy to arrange.  The article doesn’t mention any questions posed about Mignini’s own criminal conviction, or the frivolous slander charges Mignini has brought against Knox’s parents.

The funny thing about what Mignini says is that  many of his opinions about Knox seem to be based on her demeanor, which I find really superficial as I have complained about before.

I am interested in what you think about this article or the case in general.  Post your comments below.

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Photo of Steve Graham Steve Graham is a criminal defense lawyer who works in eastern Washington, including Spokane, Grant, Ferry, Stevens, Lincoln, and Okanogan, and Whitman counties. Visit his website by clicking:
Law Office of Steve Graham
1312 North Monroe Street, #140
Spokane, WA 99201
(509) 252-9167