What should be the legal limit for driving with marijuana in your system?

Illinois is a zero tolerance state when it comes to driving with marijuana in your blood.  In other words, you can smoke pot late one Saturday night and be charged with a DUI a week later because it was still in your blood system. I have blogged about this before, including this memorable post about a young woman who received a seven year sentence after being involved in a fatal crash several days after smoking cannabis.

But now that other states are allowing for medical marijuana, or legalizing it, those states are debating “legal limits” for cannabis.

Washington TV station KIRO TV ran their own tests, which showed that coming up with a legal limit isn’t easy, because everyone has different tolerances.

There have been some interesting blog posts in response to KIRO’s report.

Jacob Sullum on Reason.com has an interesting discussion, including these thoughts:

the fact that “the intoxicating effects of marijuana vary…from person to person,” which helps explain how Norton was still OK to drive at 36.7 nanograms, is relevant, but it cuts both ways. Perhaps some people are impaired at five nanograms, but it seems clear that many are not. Setting a low cutoff may seem like erring on the side of caution, but that is true only if you discount the injustice of arresting and punishing people for driving under the influence when they do not actually pose a hazard to others. The variation in responses to marijuana, which is partly a function of tolerance and experience … but also due to pre-existing differences, argues against having any sort of per se standard.

Over on Mother Jones’ website, Josh Harkinson points out that:

Ten states, many of which have legalized medical marijuana, simply make it illegal to drive with any trace of marijuana in your blood. Other states essentially regulate the drug like alcohol, requiring drivers to stay below a set limit of cannabinoids in their blood. When Washington voters legalized pot last November, they also outlawed driving with a blood THC level over 5 nanograms per milliliter—about half the level detected in Koon. Ohio and Nevada’s limit is even stricter: 2 ng/ml. These rules appeal to a public accustomed to drunk-driving standards, and they give police a simple benchmark for making arrests.

But these approaches don’t account for what scientists know about marijuana’s effects on drivers. “The reality is that alcohol and cannabis are two very different drugs that affect people in very different ways,” says Jan Ramaekers, a psychology and neuroscience professor at Maastricht University in the Netherlands. A 2009 study funded by the National Institute on Drug Abuse found that THC can persist in chronic pot smokers’ blood for a week after they stop smoking, sometimes at levels in excess of 3 ng/ml. Other research shows that those residual blood levels (and sometimes even much higher levels) don’t impair most heavy users’ psychomotor skills. If the goal is to arrest only people who are driving dangerously, Ramaekers says, then laws like Washington’s could lead to a rash of false convictions.While booze can make people drive faster and more aggressively, marijuana has the opposite effect: Pot smokers, studies show, tend to compensate for their impairment by slowing down and leaving larger gaps between themselves and other cars. Still, Ramaekers cautions against thinking that stoners acting like Sunday drivers are safer. Marijuana users may “try to create their own box of safety, and within that world they can operate fine,” he says. “But there’s a lot of other information outside of that box that they can’t process, and that is a problem.”

What do you think?

What is going on with Des Plaines DUIs? Some transparency please!

The Chicago Tribune had an intriguing story today about Des Plaines police officers facing disciplinary action concerning “alleged misreporting” of DUI cases in order to get overtime pay.  But no details were forthcoming.

According to the story, reported by Jonathan Bullington:

Several Des Plaines police officers face possible suspensions stemming from a city investigation of alleged misreporting of DUI arrests to obtain overtime pay, officials said.

The overtime pay reportedly came from a federally funded grant designed to catch drunken drivers and seat belt violators.

Police Chief William Kushner said Friday that several officers would be disciplined, and the department might seek one officer’s resignation. He would not name the officers or specify how many are involved.

Kushner also declined to elaborate on what the officers are accused of doing but said an internal investigation of this nature typically centers on violations of department rules and policies. He said an internal probe concluded last week, and that federal authorities are also looking into whether any laws were broken.

Kushner said the department is “putting steps in place to ensure nothing like this would ever happen again. … We want to put this behind us and move forward.”

In 2011, Des Plaines was awarded a $116,190 Sustained Traffic Enforcement Program grant, the third largest in the state. The department had taken in $22,500 as of last March, when city leaders told the Illinois Department of Transportation that paperwork submitted for the grant might have included arrests made by officers who weren’t actually working on grant-funded time, IDOT officials have said.

IDOT cut off the grant and allowed Des Plaines to investigate. The former commander who oversaw the program retired shortly after the grant was suspended.

So what does this mean?  I have no idea.  Des Plaines isn’t talking.

However, if you follow this blog, you might recall that last year I reported that: “Former Will County State’s Attorney Jeff Tomczak — who is in a position to know — has brought out evidence that Will County officers have been given a quota of 1 traffic stop per hour and one DUI per 10 hours in order to maintain Federal grants.”  And how I also wrote that the Howard County, MD police had a written policy mandating officers to write 2-4 citations an hour, in order to stop as many vehicles as possible in order to get DUI arrests.

You may also recall the many Chicago Police officers who have been caught over the past six years for exaggerating or making up DUI cases, allegedly to increase their overtime pay.  (If you don’t read this or that to get the most noteworthy examples).

And if you have a long enough memory, you may remember how a little over 10 years ago it was revealed that Highland Park police was targeting African-Americans and Hispanics (or anyone wearing a sombrero).

The longer Des Plaines covers up for its officers and refuses to release details, the more we can speculate.  Perhaps Chief Kushner should remember that his salary is paid for by the taxpayers of Des Plaines and Cook County (and these federal funds are paid for by all taxpayers), and that he owes us all a full accounting.

Going to the Secretary of State? Another reason why you need an experienced attorney

Last month, I wrote a post about why you need to retain an attorney before having a formal hearing for license reinstatement — yes, even for your first hearing, and yes, even if “everyone tells you that everyone is automatically denied at their first hearing.”

I want to amend that sentence to add one more thing — you need to hire an attorney who is experienced and knowledgeable about the Secretary of State — and is willing to put in the time and effort necessary to help you get the result that you want.

I say this because today someone came into my office for a consultation.  I won’t and can’t go into details.  But I can say this:  this person is revoked.  He hired an attorney before his first hearing.  The potential client said that he first met his attorney at the Secretary of State’s waiting room before his hearing.  I am not 100% sure what happened, but I do know this:  this person was not properly prepared before his hearing.  He testified to things that did not square with the evidence known to the Secretary of State, he said things that contradicted the reports of his treatment provider and evaluator and he said things that made him appear unworthy of being trusted with a driver’s license.

As I read the Secretary of State denial letter, I was dumbstruck.  I am sure that some of the mistakes came from the client, who admitted to me that he was very nervous at the hearing, and he probably said some of those things because he thought it was what the Secretary of State wanted to hear.  But I am also sure that a lot of the mistakes came because this attorney did not properly review the evaluation or spend time preparing his client.

So just a word of caution to everyone:  don’t hire an attorney for a Secretary of State hearing unless he or she is willing to meet with you, review your documentation, and spend time preparing you for the hearing.  That is the minimum that you should expect.  Anything less should be a deal-breaker.

Update: NY Giants’ David Diehl pleads guilty to Aggravated DWI

David Diehl being arrested; picture by Richard Harbus for the NY Daily News

David Diehl being arrested; picture by Richard Harbus for the NY Daily News

This is an update to an earlier post about current N.Y. Giant (and former Brother Rice and University of Illinois) offensive lineman David Diehl.

From ESPN New York:

New York Giants tackle David Diehl pleaded guilty to aggravated DWI and impaired driving in a Queens District court stemming from his arrest last summer for driving his BMW into two parked cars in Queens.

Diehl will not be allowed to drive or apply for a driver’s license in New Jersey, where he lives, for a six-month period and will have to wear a SCRAM (Secure Continuous Remote Alcohol Monitor) bracelet for 90 days.

Prosecutors said Diehl’s blood alcohol content was at .182, well above the legal limit of .08.

Diehl has to complete two drunken driving programs and pay $1,200 in restitution fees to the owners of the cars.

The aggravated DWI charge will be dismissed if Diehl complies with his sanctions within the next six months, with the first of three compliance conferences scheduled for April 19. In that case, he will be sentenced to a one-year conditional discharge on the driving while impaired charge.

The Giants’ veteran might face further disciplinary action from the NFL, which could fine him for violation of the league’s substance abuse policy. Under the terms of the 2010 policy, a first DUI or DWI offense, absent aggravating circumstances, generally results in a fine of one game check, up to a maximum of $50,000, pending a resolution in court to establish an alcohol-related violation of law.

Smile while you blow?

This was brought to my attention by Champaign attorney Mark Palmer.

The Secretary of State has proposed an new rule for breath ignition interlock devices (“BAIID”), requiring that they have cameras capable of photographing the motorist while he or she is taking the breath test necessary to start the vehicle.

The proposed rule states:

IGNITION INTERLOCK DEVICES

SOS also proposed amendments to “Procedures and Standards” (92 Ill Adm Code 1001; 37 Ill Reg 720), concerning Breath Alcohol Ignition Interlock Devices (BAIIDs) issued to persons with restricted driving permits or monitoring device driving permits (MDDPs, for first-time DUI offenders). No later than July 1, 2013, all BAIIDs installed shall include a camera that captures a clear image of the individual blowing into the BAIID, at a sufficiently wide angle to determine whether a circumvention device has been inserted into the mouthpiece of the BAIID. Captured images shall be stored by the vendor of the BAIID device and made accessible to the SOS, as prescribed by the SOS. For persons in the first-time monitoring driving permit program, preventing the camera from taking clear and accurate photos of the permittee blowing into the mouthpiece is a violation.  Permit privileges shall be suspended for an additional 3 months when an image shows the MDDP permittee has used a product that allows the permittee to avoid blowing directly into the mouthpiece, or has tried to prevent a clear picture of the driver. BAIID providers and installers are affected by this rulemaking.

As you may know, the Illinois Secretary of State requires that most people who have been suspended or revoked in Illinois for one or more DUIs have a BAIID installed on their vehicle as a condition of a driving permit.  The BAIID will only allow the individual to start a motor vehicle so long as there is not a BAC reading of 0.025 or higher.  This means that a person can have a BAC that is well below the legal limit yet not be able to start his or her vehicle.  Because of this, it is quite common for people to find that they are locked out and unable to start their vehicle despite not having consumed alcohol for over 12 hours, and feeling completely sober.  When this happens, not only is the person unable to start the car, but he or she will then face repercussions for their “high” BAC, including but not limited to extensions of the suspension, revocation of the driving permit,and  impoundment or forfeiture of the vehicle.

Faced with such consequences, it is commonplace for the person in this situation to attempt to claim that someone else was responsible for the BAIID result.  Sometimes this is true, sometimes it isn’t.  Currently, the person may contest the action of the Secretary of State and request a hearing, at which time he or she can present their evidence.  This requires the Secretary of State to weigh the credibility of the witnesses and evidence.  A photograph of the actual test will make this determination a lot easier, for both the Secretary of State and motorist involved.

Rockies’ Todd Helton gets DUI while out to get lottery tickets

Todd Helton's mug shot

Todd Helton’s mug shot

You would think that if you earned $20 million dollars a year, you wouldn’t need to go out and purchase lottery tickets.  Especially if you are drunk.  At least, shouldn’t you have a manservant to go and fetch them?

According to Colorado’s Channel 9:

Todd Helton, a Major League Baseball first baseman for the Colorado Rockies, was arrested for suspicion of DUI Wednesday morning. Thornton Police released the full description of what happened during Helton’s arrest.

According to a 9NEWS source, a witness contacted Thornton Police when they witnessed a black Ford F-150 pick-up truck driving erratically southbound on Colorado Boulevard.

The driver then pulled into a Conoco gas station at 12780 Colorado Boulevard.

When police arrived on the scene, they found the truck running and the driver’s side door open. However, no one was inside the truck.

“Moments later a man dressed in camouflage walked out the gas station and advised that he was the owner of the truck,” the arresting officer describes in the police report. “I could immediately smell a strong odor of an unknown alcoholic beverage coming from his person and he was unsteady on his feet. The male`s eyes were also bloodshot and watery. Initially the male party would not make eye contact with officers. I asked the male where he was coming from and he stated something about getting his truck washed. The male`s speech was slurred and hard to understand. During this initial contact, the male had his wallet, chewing tobacco, and lottery tickets in his hand.”

Police identified the driver as Helton.

Police interviewed a nearby witness regarding Helton’s driving.

“The witness observed the black truck turn into the lane for oncoming traffic on Colorado Boulevard and swerve and hit the median on the left near a crosswalk before 128th Ave,” the police report states. “The witness then watched the truck pull into the gas station and saw the driver get out and inspect the vehicle for damage. Sgt Stevens stated the witness confirmed the male we were speaking with was the party driving the
truck.”

Police then asked Helton to perform a sobriety test.

“Mr. Helton advised that he had bad hips, and wasn’t on prescription medication,” before taking the sobriety test.

Helton was then taken into custody for investigation of driving under the influence, was booked and was processed through Thornton Police.

According to the police report, “Mr. Helton made spontaneous statements about drinking two igloo cups of red wine at 2000 hours on the night of 02-05-2013.”

Helton was later released to a “responsible party.”

The police report describes Helton as “respectful and professional” throughout the entire process.”

Sobriety Courts? An idea that is worth pursuing

Today I saw an interesting article from Denver about their “sobriety court” which is an alternative way to dispose of a DUI case for serious alcoholics.  Here is part of the article:

In Courtroom 3C, Judge Brian Campbell presides over Sobriety Court, modeled after Denver Drug Court. Campbell says this type of program reduces the usual 90 percent relapse rate by 8 to 12 percent.

“The ultimate thing that you’re preventing is loss of life. When you start to sit there and think about the 8 to 12 percent and the people who might have died as a result of that, it’s a sobering experience,” Campbell said.

The program requires offenders to spend hundreds of hours and thousands of dollars.

Bauer estimates the total cost to her and her parents is $15,000, the cost of daily drug and alcohol testing, weekly counseling, bi-monthly trips to the court and probation office.

The judge, prosecutor, public defender, and others hold a meeting before each session. Offenders who meet the strict requirements get praise and prizes.

Those who don’t meet the requirements can end up back in jail, which has critics like Denver DUI attorney Jay Tiftickjian concerned.

“It could lead to a much longer sentence down the road,” Tiftickjian said.

In my experience, most DUI offenders are not alcoholics — they are either social drinkers or, worse, alcohol abusers.  What makes these people different from alcoholics is that they have the ability to control their drinking.  Oftentimes, the combination of a DUI arrest, prosecution and alcohol treatment is enough to wake them up to their reckless behavior.

But there is a small percentage of drunk drivers who are serious alcoholics — these are people who typically need to drink on a daily basis, are unable to cut back or quit drinking, and have allowed alcohol to take over their lives to the point that their lives are unmanageable.  These people need serious intervention — and a stint in jail or prison won’t do it.  All that does is keep them from drinking for a while.

I believe that our justice system should attempt to rehabilitate people instead of warehousing them.  And I believe that a “sobriety court,” if done right and not abusively, as has sometimes occurred with drug courts, can be a way to help people and protect the public.

It is definitely something that Illinois should look into.