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Now that we are finished with the recent trial, my nightmares involving exhibits, motions, and objections are beginning to subside, and things are starting to settle back into the normal daily grind; I figured it was time for me to sit down and get back to posting on our blog.

Today’s post covers one of the most common questions I
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 We have been working on a new site specifically designed to provide more information for folks charged with driving under the influence of drugs or alcohol – DUI. Click here to visit the site and learn even more about DUI in Idaho. The site is a work in progress, but it may help answer your questions with respect to this serious charge. 

And if you need to talk – give us a call.

 


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 "Reasonable Grounds" – kind of sounds like a new coffee joint, doesn’t it? Like a place that you’d find lawyers tending to that every day habit. In the DUI defense world, reasonable grounds means so much more.

The Idaho Court of Appeals reminded us a few weeks ago that it doesn’t take much to require a driver to take an "evidentiary breath test" (Breathalyzer) in Idaho. The odor of an alcoholic beverage, an admission you’ve been drinking and red, glassy or watery eyes is probably enough! In State v. Nicolescu, officers rolled onto the scene of an accident in which Nicolescu’s car had been struck by a driver who ran a red light. On contact, they found Nicolescu with red, blood-shot and watery eyes. Nicolescu admitted he had been drinking. When officers tried to perform the Gaze Nystagmus, Nicolescu’s injuries – including a scratched cornea from the collision – prevented them from finishing the task. They produced an Alco-Sensor and had him blow. That Alco-Sensor is not an "evidentiary breath test," but it’s accuracy is arguably enough to provide "some" information about how much alcohol Nicolescu had in his system at that time he was driving.

I have seen the Alco-Sensor before, but that device is not evidentiary in the sense that a court would rely use it on which to decide guilt at trial. However, Nicolescu’s failing Gaze Nystagmus (6 points before abandoning the test due to the scratched cornea), plus the eyes, admission and odor, when added to the Alco-Sensor result, were viewed by the State as enough to require Nicolescu to take the Breathalyzer. His resulting .103 and .096 were over the limit, so Nicolescu was charged with driving under the influence (DUI).

The Magistrate suppressed the Breathalyzer results on the theory that officers were not permitted to require Nicolescu to take the Alco-Sensor, and without that result, they lacked probable cause or reasonable suspicion to require him to take the evidentiary breath test. The State argued the officers had a reasonable suspicion that Nicolescu was driving impaired, and also argued Nicolescu had consented to take the test. The Magistrate found that he had not consented and no other exception to the warrant requirement existed to save the Breathalyzer result. On appeal, the district court found the preliminary breath test (Also-Sensor) was part of an investigative detention, and that the officer only needed reasonable suspicion to perform that first breath test. Magistrate reversed, state wins and now the Court of Appeals gets to weigh in (ala Judge Gratton).

On appeal the State argued that the preliminary breath test only requires reasonable suspicion to administer, and the officers had a reasonable suspicion that Nicolescu was driving while impaired, based on the totality of the circumstances (which included the Alco-Sensor). Nicolescu argued that absent the Alco-Sensor, the officers lacked facts necessary to require him to take the evidentiary breath test (Breathalyzer). 

The bottom line? The Court says that based on Idaho Code § 18-8002, a motorist implicitly consents to "evidentiary testing" if the police have "reasonable grounds" to believe the motorist is intoxicated. "Reasonable grounds" is an even lower standard than reasonable suspicion or probable cause – low enough, arguably, that an admission you have been drinking, plus "red, watery, glassy, and bloodshot" eyes, plus the odor of alcohol can be enough to make you take the Breathalyzer with or without that Alco-Sensor test.

Here’s my take away – the Court of Appeals reminds us that our consent to take the test comes from the state’s extension of the privilege to drive. We drive, therefore we consent – as our Existentialist friends might say. And that officer doesn’t need much to require us to take the Breathalyzer under Idaho Code § 18-8002. Not probable cause. Not reasonable suspicion. 

Just reasonable grounds – whatever that means!

 


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   It happened again last week – a client faced the prospect of losing his driving privileges for a year from the Idaho Department of Transportation because he had refused a breathalyzer, and insisted officers conduct a blood test. His test result was .204%, a level evidencing an "excessive DUI" for which IDOT could suspend him for a year, and so could the court if he was found or pled guilty. There is also a civil penalty from IDOT and the cost of the test. Our only way out was to accept a one year suspension from both the court and the IDOT to run concurrent. 

There is this belief among some Idaho drivers that the blood draw will "prove" they did not have too much to drink before taking control. Wrong. According to a prosecutor I spoke with the opposite seems more likely.

Those former "refusals" are now turning into more "excessive" DUIs because the blood draw is more accurate and harder to defeat in court. So even if you don’t refuse, the impact is the same if the result is a more accurate test reading that happens to be above .20%.

Bottom line – insisting on that blood draw takes the uncertainty out of the result and if it is excessive, there is no room to argue that the machine has a margin of error that may create reasonable doubt.

The safest thing to do here is hail a cab. Your risk if you have been drinking is too much to drive. And if you are going to gamble, I would not suggest opting for the blood draw. The Breathalyzer has inherent risk – the machine itself is subject to error. To beat the blood draw you will likely have to show a contaminated sample or an inept analyst. Neither is very likely. And when was the last time you got a result from a physician relating to blood and then rejected the result because of the inherent unreliability? I don’t know about you but I have been on statins for five years because the doc said my blood showed cholesterol above 230. I never once thought to object to his decision because the results might have been tainted.

And neither will a jury. 

Jurors have experience with blood tests. You are pregnant or you aren’t. You have an infection or you don’t. You need medications or not. So jurors are hard pressed to reject the results. 

Not so with the breathalyzer – nobody except the cops who give it believes it is error-proof.

Again – best action: don’t drink and drive. Second best – don’t demand the blood draw.


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 Once again we see that our right to be free from unreasonable search and seizure finds too few friends in the United States Supreme Court. The issue in Navarette v. California, decided this week, was whether the fourth amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate the claim of


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In the past month we have finished two cases in which our clients were charged with driving under the influence of drugs or alcohol, and in both cases, prosecutors ultimately dismissed the charge of DUI and accepted pleas of guilty to inattentive driving. Not a big deal? Oh yes it is. Inattentive driving does not carry the consequences of a DUI conviction, and the difference between the charges may save you thousands of dollars and time in jail.

In a county just north of us, our client was charged with DUI as he headed home after dinner at a local restaurant and bar. He admitted he had a couple drinks. He had been stopped because he reportedly did not stop fully before exiting a private parking lot onto the street. Seriously. In fact, the local cop had simply been parked nearby "fishing" for folks to stop coming out from the club. On video our client looked great. He spoke freely with the officers, did not slur his words, and passed the field sobriety tests – except, they said, the gaze nystagmus. Serious voodoo in that one! Anyway – we called their bluff and got ready to try the case. The breathalyzer result was just over .08% and showed the level was increasing with time. So when he took the test, roughly 45 minutes after he was driving, it was going up. A smart prosecutor ultimately decided their case did not look good and he offered a plea to inattentive driving and a couple hundred dollar fine.

In a county a ways east of us, a retired professor over-corrected on the highway, rolled his car, hit his head on the steering wheel, and had to be cut from his wrecked rig. An officer at the scene told a supervisor that the driver had "seemed confused" when questioned. And then they found some prescription medication bottles in the car. Confusion plus pill bottles must mean driving under the influence – right? That was the charge. DUI. They had NO proof of any quantified amount of any drug. They had no expert to say that the pills affected the driving pattern. And importantly, the officers had not considered whether any "confusion" was the result of his injuries or some other cause. What the state had was a weak case. We filed a motion to suppress the results of the search of the car (no probable cause) and to suppress the results of the search of our client’s blood (although not quantified, there was proof that one of the medications was in his bloodstream, but it had been so for every day of the five years he had taken it). The prosecutors did not respond to the motion. Instead, they offered a plea to DUI and no jail. Our client said "no way!" But before trial, when it seemed clear even to them that they were about to lose, they folded and dismissed the DUI.

Here’s the lesson I learned from both cases: anyone charged with DUI has to be willing to fight. The State can’t always win, and a prosecutor may eventually see what you see from the beginning – the evidence may not prove that you were guilty of any crime.

DUI is a serious charge. Make sure you get a fighter to review your case before you plead guilty.

Got a tough case? Give us a call to discuss how to win.

 


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The roads are slick out there these days. So slick that our "driving patterns" may provide just the "suspicion" needed to stop and check to see whether we have been drinking and driving. I have some experience with this over the past few weeks – and in two cases, charges of driving under the influence (DUI) have ultimately been reduced.

In the first case, officers at a one-car rollover accident found a prescription medication in the crumpled skeleton of a small sedan and concluded that the driver must have "over-corrected, gone out of control and rolled into the median" because he was under the influence of a prescribed medication. They came to this conclusion without the benefit of any test, and charged him with DUI.

Their real "proof" of impairment was his speech. After rolling his car and having been taken by ambulance to a hospital, he "seemed confused." Did they consider the fact that he had suffered a concussion and serious injuries? No. Was there any proof that he had taken the meds recently, or in an amount that would interfere with his ability to drive? No. But charge him they did, and now his record will forever reflect that he was a defendant in a criminal case charging him with DUI.

Come on – let’s use a little common sense. How about not presuming that everyone who rolls his car on slick roads must be drunk or using some medication to excess. Cops and prosecutors should be able to apply their own life experiences to situations such as this one and admit that sometimes a roll-over is just a roll-over.

In the end a prosecutor decided to reduce the charge to careless driving.  Had we gone to trial, my client was was headed for an acquittal. After all – there was absolutely no proof that the driver had been under the influence of any medication. The driver was out the time and expense of dealing with the baseless charges, but that did not really seem to matter to the officer or the prosecutor. 

Here’s the bottom line: any "driving pattern" that looks careless – like sliding around a frozen corner, or not fully stopping before entering a road from a parking lot – can be the basis to stop you, and "check" on your sobriety.

And even if officers do not find evidence that alcohol has impaired your driving, beware that lack of common sense. 

Consider the facts of a local case related to me yesterday: an employee who is sick and headed home for some couch time drives out of a parking lot to be stopped for "swerving." This happens in the afternoon – so the automatic probable cause for driving after midnight will not apply. Employee has not been drinking and is not under the influence of anything more than influenza. Officer says employee must be on some medication. Employee insists he is sick and asks to go to the ER. Cop insists on a blood draw – to "prove" that he is right and this driving fool must be intoxicated and on something. Officer performs field sobriety tests and arrests employee, who is booked and has to bond out and hire a lawyer.

And all of this without so much as any evidence that employee is operating his car under the influence of anything. Employee will spend hours of time and a thousand bucks or more to prove his innocence.

This is not the way the law is intended to work.

Police officers should not stop you "just because." They should not be trained to assume anyone who swerves is under the influence. And we should not have to prove our innocence. They should treat us like they would want to be treated if stopped for no real reason.

So be careful out there. Watch your driving pattern. Be patient with officers who insist you are wrong because your day will come. But if you are innocent – insist on preserving your rights. 

 


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The National Highway Transportation Safety Administration (NHTSA) has a publication that lists the "symptoms" of drunk driving officers are trained to watch for in "driving pattern." Each "symptom" has been given a value NHTSA says represents the likelihood a driver exhibiting that driving pattern is under the influence of alcohol or drugs.

Here is the list from the Department


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