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What the Law Says About DUI Marijuana

Even with the passage of Prop 215 and the subsequent Senate Bills, driving under the influence of MJ remains a real concern for many patients.  In California, CVC 23152(a) deals with driving under the influence of drugs. It states that it is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

Legal Issue of a DUI Marijuana

The Legal issue becomes were you driving under the influence at the time of the stop? In order for the prosecution to prove their case they must have drawn blood from you after the arrest. The first blood analysis done will be what is known as a “qualitative analysis”. All this means is that your blood was tested and it show a “presence” of Marijuana.

However, the mere presence on a “qualitative analysis” does not PROVE their case.  The next deeper level of testing is what is called a “quantitative analysis.” Again, all this means is that the toxicologist is putting a numercial value to THC found in your blood.  This is usually done in a ng/ml of blood quantification.

Looking a Little Deeper

What we do is look a level deeper. We request a copy of the Gas Chromatogram which is a graph readout of the testing done to analyze for the presence of THC. With this information we can then have our experts review the work that the toxicologist performed and look for errors.

Marijuana Metabolites

Delta -9 Tetraydrocannabinol or commonly known as THC is the active ingredient in Marijuana, this is the psychoactive ingredient in Marijuana.

Myth #1:

Marijuana causes red or watery eyes. Red or watery eyes has nothing to do with being under the influence of Marijuana.  The National Highway Traffic Safety Administration (NHTSA) produces a Drug Recognition Expert (DRE) Manual.  The manual states that Marijuana use can cause a redding of the conjuctiva, it does not state red and watery eyes.  Red and watery eyes are a sympton associated with alcohol use.

UNDER AGE DUI

A person who is under the age of 21 at the time of a DUI arrest faces additional consequences from that arrest.  A minor be charged with the adult vehicle code violations of 23152(a) & 23152(b).   A minor can be charged with vehicle code 23140(a) which is .05% or more of alcohol, and can be charged with vehicle code 23136(a) which is .01% or more of alcohol.

The ramifications of any guilty plea to any of the above mentioned codes is that the minor’s license will be suspended for a minimum of 1 year. The DMV does allow for a critical need to drive license but the standard must be shown that your need is critical for the family unit. This could include taking and picking up a sibling from school, or taking elderly grandparents to medical appointments.

RETROGRADE EXTRAPOLATION

Retrograde extrapolation is the process of counting backwards in time in order to establish a blood alcohol level at the time of driving. This method is not an accepted science and the top scientist in the world state that this method is unreliable.

In certain cases it may be to your advantage to use retrograde extrapolation.  Let’s assume that you recently consumed alcohol just prior to driving and approximately an hour and a half goes by before you are tested. Based on these facts it is most likely that your blood alcohol was lower at the time of driving rather at the time of testing. In CA, there is a presumption that if your blood test is done within 3 hours of the time of driving then you BAC reading is deemed to be your BAC at the time of driving. However, you can rebut this with affirmative evidence through the testimony of an expert to show that at the time of driving your BAC was actually lower than at the time of testing. This is done through retrograde extrapolation.

The word “Extrapolate” means to make a guess at a value that is outside a known range. The meaning alone should not evoke confidence in the process.

BASIC PRINCIPLES:  In order to to a retrograde extrapolation you must have BAC measurements at 2 different points in time.  A dangerous assumption must also be made and that is that you BAC is on the “downslope.”

WHERE IT ALL BEGAN

The analysis of breath testing in trying to determine the BAC in your blood began back in 1927 when a person’s breath was collected in a balloon.  It is hard to believe that many a persons were convicted back in those days on what we now consider fault science.  I anticipate that someday we will look back at this time and wonder how people were convicted on the science of today.

MOUTH ALCOHOL

Mouth alcohol can occur from the recent consumption of alcohol,  the belching or micro burping during the exhale process, or from the hold over of food and alcohol lodged in a person’s tooth cavity.

Where do those magic BAC numbers come from? Is there some scientist looking at my blood underneath a microscope? Are the numbers ever wrong? What outside factors can falsely increase a BAC?

The 3 main problems that occur with the blood process are; fermentation, coagulation, and hemolysis.  These will occur during the a) the collection process b) the storage process, and c) the testing process.

THE COLLECTION PROCESS

When the blood is not collected in a medically approved manner then that can lead to problems in trusting the final BAC result. It all starts in the collection environment. Was your blood drawn in a hospital setting or was it done in a dirty underground garage? Or worse, out on the side of the road with your arm flopped over the hood of a patrol car. Correct procedures require that the puncture site be properly clensed with a non alcohol based solution. The arm should be clensed in an outward circular motion and not in a back-and-forth wiping actions. The idea is to have any microbial germs moved away from the area where the needle with puncture the skin.

When your blood was collected was the vial 1/2 full? 3/4 full? Did the phlebotomist invert the vial 16 times? Did the phlebotomist collect more than one persons blood at a time? Did they mix up the blood vials?

Arterial or Vein? The phlebotomist is suppose to draw blood from a vein. In the event they miss the vein and draw blood from an underlying artery the end result will be a falsely higher BAC.

Blood Vial : In most blood draw the phlebotomist is using a Beckton Dickinson Vacutainer. This vial is 10ml, has a grey rubber top, and contains the chemical sodium fluoride and potassium oxalate. The soduim fluoride is suppose slow the naturally occurring fermentation process while the potassium oxalate is suppose to prevent coagulation of the blood. The occurrance of fermentation and coagulation can have a false negative effect on the final BAC result.

Fermentation: Fermentation is the self growth of alcohol within the blood vial. How do you make wine? You take a sugar (grape) and a bacteria (yeast) let it sit for a while and what do you have? wine. Well, what is happening in your blood vial? You take a sugar (glucose) and a common bacteria such as Candida Albicans, let it sit for as little as 10 to 20 hours at room temperature and what do you get? You will get an alcohol growth in the vial between .05 and .07 for someone that has normal glucose levels.

THE STORAGE PROCESS

One of the first steps that the lab does with your blood once it reaches the lab is to put it in a refrigerator.  However, from the time that your blood is collected to the time that it reaches the lab it will most likely have been stored in a NON refrigerated evidence locker. I have seen some blood stored outside in metal evidence lockers for as long as 6 days before it was even picked up for transport. I have cross examined DOJ blood testers that have agreed that storage in a NON refrigerated evidence locker is NOT ideal.

DUI CHECKPOINTS AND THE LOSS OF YOUR CONSTITUTIONAL RIGHTS

Ingersoll v Palmer (1987) 43 Cal.3d 1321 is the controlling case in California which deals with DUI Checkpoints.  Prior to Ingersoll Checkpoints were considered illegal.  If you take a minute to think about it what other country in the world have checkpoints? Europe? Germany ? China? Japan? Mexico? Cuba?   Are we as free as we think we are?

Because of the political climate and the pressure from such groups as MADD, our government has decided that it was perfectly fine to take away some of your rights in order to make these groups happy. 

The Ingersoll court came up with 8 factors in determining whether the intrusion was reasonable or not under constitutional scrutiny.

a)     The decisions made at the supervisor level;

b)     Was the location reasonable;

c)     Maintenance of the safety conditions;

d)     The limiting of the discretion of the officers in the field;

e)     The duration and time of the checkpoint;

f)      Advanced publicity to the public;

g)     Indicia of the official nature of the checkpoint.

HOW TO BOIL A LIVE FROG?

How do you boil a live frog?  Do you throw him in a pot of boiling water? No, if you do that he will make every effort to jump out, but if you put him in a pot of cool water and slowwwllllyyy turn up the heat he won’t know what hit him.

What does this have to do with a DUI Checkpoint? Everything!  When DUI Checkpoints first started they did one thing, they check for DUI’s.  Today, if you go through a DUI Checkpoint what do you see? You see them check for license, registration, and proof of insurance.  If you take the average DUI Checkpoint they will stop 200 plus vehicles, make 2 DUI arrest, and impound 30 cars for NON DUI reasons.   These Checkpoints are a money generating source for the police agency that puts them on. Not only do they receive federal funding, they make money off your impound fees, booking fees, etc.