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Marijuana, cocaine, heroin, and methamphetamines are just a few of the many different controlled substances that Swedish researchers have found can be detected by a commercially available breathing test device.  A control group of 47 individuals, who had taken a variety of drugs less than 24 hours prior, were tested to check the accuracy of the device. The test successfully detected drugs in 87% of the people. The device would allow police officers to test suspected drug users and DUI ... Read More »

How to Force a DUI Defendant to Prove His Innocence

The drunk driving laws make it a criminal offense to drive a vehicle while under the influence of alcohol (DUI) or while having a blood-alcohol concentration (BAC) of .08% or higher. It is not, however, a criminal offense to be under the influence or to have a BAC of .08% while taking a breath test in a police station an hour or two AFTER driving. So how does the prosecution prove what the BAC was when the defendant was driving? ... Read More »

Laws requiring breathalyzers in the cars of DUI offenders has reached 18 states and counting

Maine is the newest state to propose a bill that would allow first time and habitual DUI offenders to cut down on their license suspensions by having a breathalyzer installed in their vehicles. The breathalyzer, also known as the ignition interlock device (IID), is a device wired to a vehicle’s ignition that requires a breath sample from the driver before the engine will start. A photo of the driver is taken while the sample is being given and transmitted to ... Read More »

DUI checkpoints near baseball stadiums hits home for Angels fans

After celebrating the New York Yankees 5-4 victory over the Toronto Blue Jays, Yankee fans left the stadium in a hurry in the hopes of beating the post-game traffic only to be stopped minutes later by the four police DUI checkpoints that were set up just blocks from the stadium. The Bronx police reassured fans that the checkpoints were not aimed towards Yankees fans but were part of a citywide effort to crackdown on drunk driving. An effort that Angels ... Read More »

If a police officer says it then it has to be true…right?

Jason Servo, an Oregon police officer who was arrested and subsequently fired for driving under the influence, has filed a $6 million lawsuit against the city of Gresham claiming that his firing violated his rights under the Americans with Disabilities Act.  The lawsuit alleges that Officer Servo was suffering from alcoholism at the time of the incident and should not have been fired as alcoholism is a recognized disability under the act. In January 2011, after enjoying dinner and drinks ... Read More »

California Highway Patrol Will Stop Forced Blood Draws In Wake Of Missouri v. McNeely

In Missouri v. McNeely, the United States Supreme Court rejected the government’s argument that the possible dissipation of alcohol in a DUI suspect’s blood  will always create an exigent circumstance justifying a warrantless blood draw.  In an 8-1 decision, the Court held that the 1966 decision Schmerber v. California did not establish a per se exception to the requirement of a search warrant to forcibly extract blood from an unwilling DUI subject.  The Court ruled that while the dissipation of ... Read More »

Blood-Draw Search Warrant

Getting a blood-draw search warrant in California in a misdemeanor offense of driving under the influence case is statutorily prohibited, based on the statutory construction principle of expressio unius est exclusio.  California Penal Code Sec. 1524 does not authorize it.   If you have been arrested on suspicion of driving under the influence in California and you withdrew your “implied consent” to chemical testing, then any blood-alcohol evidence obtained by threat or use of force may be subject to exclusion for ... Read More »

Warrantless Blood Draws Are Presumptively Unconstitutional Absent Consent

SUPREME COURT HOLDS WARRANTLESS BLOOD DRAWS IN DUI CASES MAY VIOLATE FOURTH AMENDMENT The Supreme Court of the United States (SCOTUS) has issued a major decision in Missouri v. McNeely (Docket No. 11-1425) concerning the collection of blood evidence in drunk driving cases. The following issue was presented to the high Court:  “Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth  Amendment warrant requirement ... Read More »

Rising Blood Alcohol Levels in DUI Cases

It is illegal to have a blood-alcohol concentration (BAC) of .08% or greater while driving a vehicle. It is not illegal to have a BAC of .08% or greater while blowing into a breathalyzer after a DI arrest at a police station. In other words, just because a breath test shows a level of, say, .09%, it does not mean that the blood alcohol level when the suspect was driving an hour earlier was the same .09%. So what was the blood alcohol level ... Read More »

Does Marijuana Impair Driving?

It is against the law to drive while under the influence of marijuana. It has always been assumed that cannabis, like alcohol, impairs the perception, coordination, reflexes and judgment necessary for the safe operation of a motor vehicle. And, of course, there have been governmental studies addressing the question: Does marijuana impair driving? Interestingly, however, the findings do not necessarily support popular opinion…. On the one hand, the California Department of Justice concluded long ago that marijuana undoubtedly impairs psychomotor ... Read More »