impaired driving update 2015 issue 18.pdf1, 2015. they are available now for download to officers...
TRANSCRIPT
IMPAIRED DRIVING UPDATE Washington Traffic Safety Resource Prosecutors
Issue 18 June 2015
Medical Marijuana Laws Revised The revised laws for medical marijuana are lengthy and
complex. Fortunately, many of the provisions will not take
effect until after rule-making by the “Liquor and Cannabis
Board.” The creation of a new patient database is one
important task, as is the creation and distribution of the new
recognition card for patients. Expect new rules by July 2016.
One of the big changes is that recreational marijuana
retailers will eventually also be allowed to sell medical
marijuana. This effectively merges the two industries. Expect
to see minor patients between 18 and 21 at those stores.
They will be allowed to purchase medical marijuana directly
from retailers with proper credentials. Minors under 18 will be
authorized to visit medical marijuana retailers with their
designated provider, but may not directly purchase.
Under the new law, the maximum number of plants a
patient can have will be more fluid, relying on the doctor’s
recommendation. Patients otherwise in compliance with the
new law, but who violate the maximum allowance, will lose
the excess but officers must now leave lawful amounts. In
the case of a seizure, the patient is allowed to select exactly
which plants will be kept. Stay tuned for updates!
THIS ISSUE
Medical Marijuana Law Revised Pg. 1 Draeger Update Pg. 2
Reasonable Suspicion? 3 Important Side Notes Pg. 3
Thank you John Wasberg! 3 Frequently Asked Questions Pg.4
Confrontation Clause Update Pg. 5 2015 DUI Bootcamp Pg. 5
Traffic Safety Conference Update Pg. 6
Or at least your sanity!
ALL RESOURCES IN THIS ISSUE MAY BE FOUND ON OUR WEBSITE UNDER
THE “TSRP NEWSLETTER” TAB.
Draeger Deployment Update The Draeger 9510 continues to steadily march into new locations. Since November 2014,
fifteen counties and dozens of cities have added the new breath test instrument. Following the
most recent purchase of instruments, funded by the Washington Traffic Safety Commission, the
stock of new Draeger instruments is again exhausted. After Spokane County is outfitted, further
Draeger deployment will depend on additional legislative funding. Current plans are to
completely replace all DataMasters in Eastern Washington before adding more Draeger
instruments into Western Washington.
Draeger Litigation Update Seven months have passed since introducing the new Draeger, but only a few cases involving
the new instrument have made it to either motions or trial. The only interesting litigation issue is
the attempt by some defense attorneys to avoid bringing their DUI case to trial. Their way of
doing that is to insist the prosecution provide a copy of the software in the Draeger 9510 so it can
be analyzed by the defense. On first blush, the request seems reasonable.
But this is not our first rodeo. When defense attorneys used this same strategy on the
DataMaster instrument, that software was disclosed to them in hundreds of cases. In not a single
case was the software actually analyzed. The process of getting the software can take many
months, and that is all this tactic is intended to do—waste time.
For more analysis on software demands, see the Frequently Asked Questions section in this
Newsletter. If you get a demand for software, please contact [email protected] for
more information and some sample response briefing.
Draeger Discovery Documents The overwhelming bulk of Draeger related documents
are available on-line. The WSP site for the Forensic
Laboratory Services on Web/DMS includes a specific
tab for all Draeger documents. (see arrow in diagram)
Just like DataMaster documents, prosecutors generally
don’t need to supply these documents to the defense,
they can download them without assistance.
The Impaired Driving Section is providing Draeger
training for Operators, Prosecutors, Judges, and defense
attorneys. For more information, contact Sgt. Brandon
Villanti or Sgt. Lisa Mosley, WSP Impaired Driving Section.
Important Side Notes:
The New Bail Schedules are out.
The Washington State Courts revised the bail schedules. The revised schedules are effective July
1, 2015. They are available now for download to officers via SECTOR. If you have questions,
contact Michelle M. Pardee, Senior Court Program Analyst, at 360-705-5233 or email
The Washington State Roadside Survey 2014.
How the federal government distributes tax dollars each year depends, in part, on how a state does
on the annual State Roadside Survey. Washington State continues to do very well and will once
again qualify under MAP 21 as a “low alcohol-impaired driving fatality rate state.” Compared to all
other states, Washington is now 8th from the top! Congratulations to everyone who works to realize
our Target Zero goal of zero-deaths from alcohol or drugs.
NEW MARIJUANA TRAINING
Special Thank you!
John Wasberg
For the countless hours of
time he donates to the law
enforcement community.
John’s monthly analysis of cases is available to members
of the TSRP website under the tab “Legal Forum” and
subtab, “Criminal Law Update”
Happy
Happy
Holidays
ON LINE!
Reasonable Suspicion? First there was State v. Prado, where the court held
that crossing a lane line once for a second is not
sufficient to stop the driver for violation of RCW
46.61.140(1)—there must be evidence the crossing
was unsafe. Now we have State v. Jones (April 6,
2015) putting an exclamation point on that ruling.
In Jones, the driver crossed the fog line three times
by about an inch. The basis for the stop was again
RCW 46.61.140(1). As with Prado, there was no
indication the lane travel was unsafe. The Jones
court followed Prado and reversed the conviction.
Lesson: Don’t rely upon the lane travel infraction
if you can’t show danger from that travel.
Practice Tip: There are two separate ways to
legally stop a vehicle: 1) reasonable suspicion for a
traffic infraction, OR 2) reasonable suspicion for a
crime. Look for infractions other than lane travel
that apply. Since no danger was evident, an option
in Jones was to rely on RCW 46.61.670-Driving
with wheels off roadway. Are there equipment
violations that justify a stop? In State v. Arreola
the court affirmed a stop for a muffler violation
when officers could not verify a 911 report of DUI.
If the driving is consistent with distracted or
impaired driving, add that basis to stop also. The
court in State v. McLean, 178 Wn. App. 236
(2013) had no difficulty affirming a stop when the
officer relied upon both bases: an infraction and
possible criminal act. Either will justify the stop!
What do I need to develop PC for a “green DUI” now that marijuana’s legal?
In terms of traffic crimes, I-502 changes very little for law enforcement. I-502 merely
decriminalizes possession of limited amounts of marijuana. It does not authorize driving under
the influence of marijuana or under the combined influence of marijuana and anything else.
Because even low levels of marijuana can impair—much like alcohol, the odor of marijuana is a
valid basis for investigating a driver for DUI. However, don’t assume you will smell marijuana
use. Users have a variety of techniques other than smoking to get high. Certainly look for
bongs, pipes, clips, and joints, but also look for packaging, receipts, and especially physical
symptoms of use.
Also, ask about marijuana use. Many marijuana users are very cooperative, so it doesn’t hurt to
just ask now that possession is not an issue under state law. If they admit smoking less than an
hour before, they likely exceed the 5 ng per se limit.
How much marijuana can a person have under I-502?
I-502 allows a person 21 or older to have up to 1 ounce of useable marijuana, and up to 16
ounces of marijuana-infused product, and up to seventy-two ounces of marijuana-infused
product in liquid form. The state medical marijuana law complicates this by allowing larger
quantities, so make sure you use your prior training to verify whether the subject has the
necessary documents for a colorable claim that the quantity of marijuana is allowed under our
state medical marijuana laws.
FREQUENTLY ASKED QUESTIONS As the prosecutor in a DUI case, how do I respond to a defense demand for the software that works the Draeger Alcotest 9510?
DUI defenders who demand “software” as part of the discovery process are simply taking a page from the “How-to-Stall-your-DUI-case-Forever” playbook. The software in the Draeger is simply its programming—the coding instructions that guide the hardware through its entire sequence of operations. As a prosecutor, you obviously don’t have or control a copy of those instructions. Under CrRLJ 4.7, you cannot provide something you don’t possess or control. The defense knows that. Their strategy is not to get a copy of the software, it is to simply burn time. By the time you formally respond to their demand, a month is gone. The defense will make the same demand to the Washington State Patrol, the State Toxicology Laboratory, etc. Under the purchase contract with Draeger, neither WSP nor the lab possess or control the software and they use it under license. The defense knows that too. But demanding the software from groups that cannot distribute it burns time.
I strongly suggest you end the defense charade as soon as possible. If you want to timely prosecute your case, you need to demonstrate to the court that the defense is simply stalling. Here is one way to do that:
Ask the court to demand an offer-of-proof from the defense addressing their demand: 1. Has the defense retained a qualified software analyst to perform a review of the software? 2. Has the software analyst estimated the cost of a software review? 3. Has the client agree to pay the estimated cost of the software review? 4. Has the software analyst estimated the amount of time for a software review? 5. What is the expected cost and estimated date of delivery for a review?
If the defense really wanted to analyze the software, they will have accomplished all of the above tasks. When they fail after the first question, argue to the court the defense is simply stalling. I have handled hundreds of cases involving demands for DataMaster software. See e.g. Seattle v. Keene, 108 Wn. App. 630 (2001). In not a single case did the defense in Washington ever actually analyze the software they got. Why not? Because software analysis is incredibly expensive and they know it won’t help them. In both the State v. Chun case (New Jersey) that involved the Draeger 7110 software and the State v. Source Code Coalition case (Minnesota) involving the Intoxilyzer 5000 software, the price tag for analysis was well over $100,000 for each side. After the defense analysis of the software the courts still found the programing satisfactory and the breath test results admissible. Nonetheless, the defense successfully delayed thousands of DUI cases for years.
What if the defense is prepared to actually analyze the software in your case? Then the defense is preparing to do the same thing the defense did in New Jersey and other states—waste a lot of money AND time. Draeger’s analytic software was already examined in State v. Chun and their Supreme Court found the test result admissible. The 9510 software is different from the 7110 software, but uses the same basic algorithms and formulas and was tested in Europe under the OIML international standard. Further analysis is just a time-wasting fishing expedition. Further testing cannot reasonably be expected to show anything material. Object to any continuance of the case for more analysis. The defense can proceed with the criminal case and pursue their analysis separately. If the defense uncovers anything in that analysis materially affecting their case, they have a solid motion to reconsider the judgment based on new evidence.
To get the software for the Draeger, the defense will need to contact representatives for Draeger. Contact me at [email protected] for more information. Draeger’s software is proprietary, copyrighted, and valuable—so the company will have some procedural requirements prior to releasing it. In my experience, those generally include a Non-Disclosure agreement signed by the software analyst/company handling the software analysis, a Protection Order signed by the court protecting the software, an administrative fee, and limitations on the use of the data. Of course, expect the defense to object to any conditions.
Meanwhile….in Seattle on Dec 6th
2015 DUI BOOTCAMP CLASS – UW CAMPUS EDITION
Confrontation Clause:
State v. Federov, 183 Wn. App. 736 (2014)
The Confrontation Clause generally requires prosecutors to offer at trial the witness whose statements
are offered against the defendant. In the case of breath tests, the annual performance checks on the
breath test instrument by technicians and the preparation of the external simulator solution by forensic
scientists are often the basis for confrontation arguments. Commonly, the person who did the underlying
testing is not available for trial. If the prosecution proceeds with a witness other than the one who did
the prior testing, the defense often objects based on confrontation .
Federov concludes any technician may testify by relying upon their records to offer an opinion on the
accuracy and reliability of the instruments. The person in court need not have been the person who did
the testing because the prior testing is not “testimonial” in that it was done before the violation date and
not at the request of the prosecution. Likewise, the technician can rely upon the records prepared by
forensic toxicologists in preparing and testing the simulator solutions to also offer an opinion on those
solutions. Not only is this good news for DataMaster cases, Federov ends the debate as to whether we
must call a Calgaz witness to explain how we know the external gas solution was properly prepared.
Calgaz standards are formulated in Maryland, so getting a witness from there is not feasibl e.
The Federov case is on review by the State Supreme Court, but the defense in that case did not seek
review on this issue. That means the Confrontation discussion from the Court of Appeals in this case
will remain good law no matter what the Supreme court does on the other issues under consideration .
For Training Requests or
Technical Assistance on
Impaired Driving Issues,
please contact:
________
Moses Garcia
206-720-3018 X24117
__________
Courtney Popp
__________
Eastern WA Target Zero Prosecutor
Stephanie Olsen
All Reference Materials in this Newsletter
may be found on the website:
www.duiprosecutor.com
under the “TSRP NEWSLETTER” tab.
If you have any questions, feel free to
contact [email protected]