DON’T RIDE OUI WITH MOLLY

Miley Cyrus is dancing with her, Kanye West sings about her. So who is Molly? Molly is a fairly common street drug that causes hallucinations and euphoria but also promises a terrifying and horrific crash.
In addition to the drug’s advertised purity and potency, celebrity endorsements are boosting its popularity. What’s not as widely advertised is the fact it’s dangerous, addictive and even deadly.
Molly is short for chemical molecule, referring to a purer form of 4-methylenedioxymethamphetamine (MDMA). The same white powder as what’s in the drug Ecstasy – raises serotonin levels in the brain and induces feelings of euphoria, pleasure, empathy and closeness, often leading to unprotected sexual activity. The high can last three to six hours and the crash that follows is worse than any hangover you’ve ever experienced.
Molly is claiming lives nationwide, in particular in connection with dance music events. Just last week a University of New Hampshire junior died at a music festival in New York after allegedly using Molly, and the number of deaths is growing at an alarming rate. Like bath salts, MDMA is man made and makers of MDMA can add anything they want to the drug, so its purity is always in question. Most users of Molly take a pill, tablet or capsule, which often look like candy. The pills come in different colors and shapes and sometimes have cartoon images on them. Molly’s deceptive look coupled with it’s newly found paparazzi like media attention has brought this deadly drug to a new more enlightened public. So tell your kids, don’t take Molly to the dance because it just may be the last dance they’ll ever attend.
Don’t drive OUI in Maine. These issues are just the beginning of a full analysis of any DUI/OUI/DWI case. If you have been accused by the police in Maine of OUI, “Operating Under the Influence of Alcohol or Drugs”, possession of a controlled drug or any alleged motor vehicle or criminal offense, feel free to call Attorney John Webb today at 207-283-6400 and arrange a free consultation to discuss your case or visit: www.nicholswebb.com, www.OUIhotline.com.

Colorado DUI Enforcement: The Myths Behind the Numbers

Law enforcement officials in Colorado say they made 1,342 DUI arrests between August 16 and September 3 — a time period during which they typically ramp up enforcement efforts in preparation for Labor Day Weekend, reports TheDenverChannel.com.
Just to put this in context, because it sounds like a lot, this works out to an annual number of 24,973 arrests.  The 10-year average is usually between 30,000 and 35,000 consistently. 1,300 arrests for 100 agencies over 19 days is two arrests every three days per entire agency. If they don’t sound like they are doing something special, they won’t get that extra grant funding for their next holiday ‘crackdown.’”

This same propaganda gets spread throughout the news channels over every holiday weekend and DUI checkpoint.  The reality is that these “crackdowns” are no more effective than normal every day enforcement, except they come at a higher cost and the public is paying for it.

Even though the Labor Day arrests weren’t as plentiful as the media outlets have made them seem, it’s still important for all drivers to make responsible decisions before getting behind the wheel of a vehicle. With Halloween, Thanksgiving and Christmas coming up in the next few months, it’s likely that law enforcement officials will continue to step up their efforts to crack down on drunk drivers around the holidays.

If you’ve been charged with DUI or any other driving-related offense, you owe it to yourself to find the best legal representation in the state. At The Orr Law Firm, our Denver DUI lawyers work tirelessly to defend our clients’ rights throughout the entirety of the legal process, ensuring that they are treated fairly. We offer all of our clients sound advice, and we aggressively defend their best interests in order to achieve favorable results.

Blood Draws in the Wild, Wild, West.

Texas is following Arizona on what appears to be a slippery-slope which will be affecting more states as time goes on. A new law went into effect on September 1st, 2013 which was passed by the 83rd Texas Legislature. The new law allows Emergency Medical Technicians (EMT) paramedics to take a blood specimen to test for alcohol concentration at the request of a police officer. The law allows paramedics to test for alcohol concentration or other intoxicating substances.A paramedic may take a blood specimen if they believe they are complying with an officer’s request or order.

At least in Texas, the people drawing blood have some medical training–and that’s similar to how it all began in Arizona. Many people don’t realize that in Arizona, cops have been drawing blood since 1996. It started when a police officer, who was also a paramedic, drew blood from a DUI/Fatality suspect in a hospital setting. No one could really complain about the training of the officer, or about the setting. Moreover, throw a fatality into the equation and not many people would even cast a second glance at the officer’s conduct.

Flash-forward a little more than 15 years, and Arizona now has “phlebotocops” (poorly trained police officers who stick people with needles by the side of the road). In Arizona, one needs a license just to cut hair, but there are no licenses needed to puncture a vein and draw blood. Since there are no license requirements, technically, anyone may draw blood–including the police. Yet, it seems that the phlebotomist must still be “qualified” under Arizona law to draw blood in a DUI investigation context. Arizona Revised Statute 28-1388 reads:

“If blood is drawn under section 28-1321, only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content in the blood. The qualifications of the individual withdrawing the blood and the method used to withdraw the blood are not foundational prerequisites for the admissibility of a blood alcohol content determination made pursuant to this subsection.”

The police now take a 3-day-long course where they learn how to stick people and draw blood called “Phlebotomy for Law Enforcement.” Day One of the course consists of classroom education where they learn about safety (i.e. how not to stick yourself, how to dispose of sharps, how to clean up). Day Two consists of learning where to stick people and they get to practice on each other and practice on fruit–typically oranges. On Day Three, they head out to a Veteran’s Hospital, or some other government-run facility where they have to have 50 (it used to be 100) successful blood draws.

What is the definition of “a successful blood draw”? It is defined as a blood draw where the phlebotocop gets a full tube of blood and did not ask for help. It doesn’t matter how many times the cop attempted the blood draw. Nor does it matter whether the patient suffered nerve damage, infection or even death. As long as the cop filled a tube of blood and did not ask for help, it is counted as one of the 50 successful draws.

Once the cop has passed the course (and no one has ever failed it), they are “another qualified person” according to Arizona law. But even if they were not qualified, the statute still has no teeth as it makes qualifications irrelevant: “The qualifications of the individual withdrawing the blood and the method used to withdraw the blood are not foundational prerequisites for the admissibility of a blood alcohol content determination made pursuant to this subsection.” Why even have the statute if it does not prohibit admissibility of a blood test result performed by someone other than those named in the statute?

Since the inception of the Arizona Phlebotocop Program, police have been drawing blood from people standing, unsupported by the side of the road, in the backseats of patrol cars and on the hoods and trunk lids of patrol cars. The police have been hurting people in the process.

In 2005, the Arizona Court of Appeals found no constitutional problems with police drawing blood by the side of the road. In State v. May, 210 Ariz. 452, 112 P.3d 29 (Ariz. App. Div. 2, 2005), found that despite the testimony, which showed that drawing blood by the side of the road, standing at the trunk lid of a patrol car, unsupported, risked injury, infection and nerve damage to the subject, the blood draw was a reasonable search.

Other states are looking to Arizona to model their phlebotocop programs. Idaho, Texas and Utah have sent some police officers to Arizona for training. It’s a slippery slope and it truly is the Wild, Wild, West.

Michigan Law Ignores Child Endangerment While Drunk Snowmobiling

According to the DNR:

With its unique combination of abundant annual snowfall, exciting terrain and extensive trail network, Michigan is a popular destination for snowmobilers far and wide. More than 6,400 miles of designated snowmobile trails criss-cross state forests, three national forests and many acres of privately owned lands. In fact, Michigan is one of only a handful of states that offer a large network of groomed and signed snowmobile trails.

With all this snowmobiling in Michigan, you would think it would be illegal to operate a snowmobile while drunk with a child on board.  Ironically, despite the fact that snowmobiling is inherently dangerous even while sober, Michigan drunk driving law does not enhance drunk snowmobiling with children.

The same is not true of drunk driving a car with a child on board. If you operate a motor vehicle on a roadway in Michigan with a person under the age of 16 and have a bodily alcohol content of .08% or more, then you can be charged and convicted of the crime of “child endangerment.”

A first offense for child endangerment is a misdemeanor crime.  If you are convicted then the judge could put you in jail for up to one year.   The judge will also order you to pay $200.00 to $1,000.00 in fines, plus court costs.  Your driver’s license will also be suspended for 90 days, with no driving whatsoever during this 90 day period.

These penalties make a Michigan first offense child endangerment more serious than a standard Michigan first offense drunk driving but less serious than a Michigan second offense drunk driving.

A second offense of “child endangerment” in a car within 7 years or three convictions in your lifetime is a felony in Michigan.

Needless to say, child endangerment in a car is treated as a very serious offense in Michigan. Drunk boating in Michigan is however treated considerably differently.

But, unlike drunk driving in a car, there is no separate offense of child endangerment for snowmobilers.  This means that no matter how many children you endanger, the worst that can happen to you is a charge for standard drunk snowmobiling charge with no enhanced penalties.

Also, the legal limit for intoxication on a snowmobile is .10 rather than .08.

It should be noted however that if you operate a snowmobile on a road open to the public then you are subject to same laws as cars.  So, if you are crossing a road to get from one trail to the next, have a child on board and are drunk, then in this situation you can be charged under the motor vehicle statute for child endangerment.

Latest battle with the West Virginia DMV

A couple weeks ago, I had the privilege of appearing in Kanawha County Circuit Court, in front of the Honorable Judge Bailey, on behalf of a fellow West Virginia citizen who had been accused of driving under the influence in the Fall of 2011.

The nature of my appearance was in regards to a Writ of Prohibition appellate action that I had filed on behalf of said citizen against the West Virginia Division of Motor Vehicles (WV DMV) seeking to have the Kanawha County Circuit Court order that the WV DMV cease and desist with attempting to suspend my client’s West Virginia driver’s license. (In West Virginia, one must file these type of legal actions in our state capital county of Kanawha in Charleston, West Virginia due to said locale being where the Division of Motor Vehicles is headquartered.)

The central issue of the appellate action was whether or not the WV DMV can institute licensing suspension action against a citizen when the statutorily required 48 hour time period for the arresting officer to file the necessary paperwork with the WV DMV, in which to ignite licensing suspension action against the citizen, has long since past.

In West Virginia, per statute, a law enforcement officer who arrests a citizen for DUI must file with the WV DMV a “statement of arresting officer” within 48 hours of said arrest in which to ignite licensing suspension action against the citizen by the WV DMV.

In prior case rulings by the West Virginia Supreme Court of Appeals on this issue, to which the WV DMV is relying, all such cases had some nexus to the 48 hour time period requirement. (i.e. portion of paperwork submitted past the 48 hour deadline with some filed timely, 72 hours in one case, etc.). In these cases, our state high court held that the citizen must show some form of substantive detriment to the citizen due to the 48 hour rule having been violated.

In my instant case there is absolutely no connection to the 48 hour time period whatsoever. Furthermore, there is the potential of significant detriment to my client if the WV DMV is allowed to seek the suspension of his West Virginia driver’s license.

Specifically, my client was arrested in early November of 2011. In late January of 2013, nearly 14 months past his arrest date, he received in the mail a Notice of Revocation submitted by the WV DMV advising that the arresting officer had submitted a statement of arresting officer (on December 27, 2012) and thus the WV DMV was seeking to suspend my client’s West Virginia driver’s license. (*The underlying suspension period is for one year followed by two years mandatory interlock installation in his vehicle.)

Further, in Fall of 2012, approximately one year post arrest, and based in large part that there was no pending license suspension action against my client by the WV DMV, he elected to enter a no contest plea to his DUI charge, thus insuring that there could never be a jury finding or plea entry of guilty in which to ignite on its own said licensing suspension action. Noting that per West Virginia law, and while still a criminal conviction for lifetime record purposes, a citizen is entitled to an administrative hearing in which to challenge the suspension of his or her driver’s license even if there has been a no contest plea to the DUI charge entered in the criminal court, where a guilty plea or finding of guilt will close that door and on its own ignite licensing suspension action,

Of additional note, my client testified before Judge Bailey as to the detriment he would suffer if the WV DMV were allowed to now, thirteen plus months later, seek to suspend his WV driver’s license. He testified to taking a job two plus hours away from home to which requires him to drive to and from; and moreover, in the interim thirteen months, he also commenced with adoption proceedings of a 7 year old little girl from a foreign country, to which also depends on my client’s ability to drive to and from his employment to earn a living to pay for the care of this little girl. All of which, my client collectively undertook months after his arrest when it was clear that the arresting officer had not filed the proper paperwork with the WV DMV not only within the required 48 hour time period but at all. And all of which my client now stands to lose if this blatant violation of West Virginia law is allowed to be done by our WV DMV.

Upon a representative of the WV DMV taking the stand under oath, I came to learn that the WV DMV legal division assigned this individual with the responsibility of “investigating” all DUI criminal court convictions received from around the state to see if there is any licensing suspension action that was enforced or that can be enforced due to said plea, or at minimum, that there is licensing suspension action against the citizen pending by the WV DMV.

In the event that there is not any suspension action pending, or ever instituted by the WV DMV, said representative is to contact the arresting officer in which to demand that he or she file the proper paperwork or face contempt proceedings.

So, in the instant case, over a year post my client’s arrest, the WV DMV contacted the arresting officer and had him file with the WV DMV a statement of arresting officer over one year removed from my client’s arrest.

The WV DMV legal division argues this is completely permissible and in compliance with fundamental concepts of due process and the United States Constitution. For their role is to, “…take drunk drivers off the road.”

Unconstitutional Blood Draws

There is a good deal of debate in the legal community about whether warrantless blood samples taken from DUI suspects are constitutional following the U.S. Supreme Court’s decision in Missouri v. McNeely.  The core of this debate is whether “implied consent” laws constitute an exception to the Fourth Amendment’s warrant requirement, or whether such consent is “involuntary consent” because it is based on the threat and imposition of a license suspension.

     The McNeely decision did not invalidate “implied consent” statutes such as the operative one in California which is Vehicle Code section 23612.  What the holding does make clear is that a drunk driving suspect may withdraw his or her implied consent (subject to being penalized with a license suspension).  If the police have a blood sample forcibly taken without a warrant, or threaten to do so, then there is no lawful consent and the blood-alcohol or blood-drug evidence is subject to suppression under the federal exclusionary rule unless some other exception to the warrant requirement is established by the government.

     The voluntariness of consent is measured by the “totality of circumstances.”  Make sure you have legal counsel who is knowledgeable in this esoteric area of the law. 

New tool to protect your constitutional rights: police mounted video cameras.

The Chesapeake Police Department in Virginia has drastically increased its use of video recording.  The TASER Company reported on their website that in April of 2013 that Chesapeake deployed 85 additional AXON Flex cameras.  These are small on-officer cameras with multiple mounting options and a 130 degree wide-angle lens.  The video quality is surprisingly good.  Growing evidence also suggests that the tiny video camera may be surprisingly good at protecting your constitutional rights.

Just this year, Judge Shira A. Scheindlin of the Federal District Court in Manhattan held that New York police officers used unconstitutional stop-and-frisk tactics for years.  Statistical experts estimated that 4.43 million stops were conducted between 2004 and 2012.  Her remedy to these warrantless, suspicionless seizures was unique:  she ordered the officers from the worst offending precincts to wear video cameras to record their actions for one year. 

A Cambridge University study showed that when the City of Rialto, California required its officers to wear video cameras, the use of force by officers dropped almost 60 percent and complaints filed by citizens against officers fell by 88 percent.  A UK Study reported that many agencies experienced a 100% decrease in complaints.

An article by Ronald Bailey said it best “watched cops are polite cops.”  They are also apparently  (constitutional) law-abiding cops.