One of the hardest things for a human being to do is admit that he or she was wrong. A recent story from Eugene, Oregon is a classic example of that maxim: A young lady was pulled over for weaving out of her lane and speeding. According to the officer, she had bloodshot eyes, “dilated pupils”, and was unsteady on her feet. She admitted drinking one beer earlier. So, the officer arrested her for DUI and took her to the police station. She blew into the breath testing machine and blew a .01. That is not a .10, it is a .01 – which means almost nothing, whatsoever, in her system. The officer could not admit that he had been wrong to arrest the 23 year old girl, so he called in a “Drug Recognition Expert”, who performed his tests on her and concluded that she was high on marijuana. So, they took her blood and sent it to the lab. Lo and behold, there were no drugs in her system. Despite the lack of alcohol anywhere near the legal limit and being completely clean of any drugs, the prosecutor DECIDED TO PURSUE THE CASE and continued to prosecute her for a DUI. When it became clear that she was not going to roll over, but fight the case, the prosecutor finally relented and dismissed the charge. One beer and no drugs got this young lady put in handcuffs, a $250 tow bill, legal fees and, no doubt, the fright of her life.
The officer could not admit he had been wrong when the driver blew .01. In fact, the prosecutor still can’t admit that the officer was wrong or that he was wrong to pursue prosecution of the case, defending it all to the newspaper. There are many morals to this story, including blowing into a machine and being under the legal limit does not mean you won’t be charged. In Johnson County, Kansas, prosecutors routinely pursue DUI charges against people that blow under .08. In the story, the prosecutor brags that he once convinced a jury to convict someone that blew a .04! That is half of the legal limit. Those kinds of cases get filed and prosecuted around here, as well. Blowing under the legal limit is not good enough.
Another moral to the story may also be that “Drug Recognition Experts” aren’t exactly experts. When the DRE program was started in the 1970’s, officers trained in detecting intoxication by drugs were referred to as “Drug Recognition Evaluators”. Somewhere along the line, they decided to start referring to themselves as “experts” instead of evaluators. Expert, as used in a courtroom, is a legal term of art that is only applied to certain people, of certain credentials, and a particular expertise. A judge has to find that a person is an “expert” before they can be referred to as such and render an expert opinion. The police have tried to short-circuit that and designate themselves experts because they say so. The DRE in this case did all of his testing (there is a 12 point protocol they are supposed to follow which includes measuring the pupils, taking the person to a dark room and flipping the lights on to see how their eyes react, field sobriety tests, and taking medical measurements of vital signs) and came to the expert conclusion that this girl was impaired by marijuan. Oops! Her blood was completely clean of marijuana or any other drug. If she had refused to take a blood test, this DRE would have testified in court as to all of his findings, all of his training and experience, and as to his expert opinion that she was under the influence and she could have easily been convicted despite being totally innocent.
One more moral to this story is that you have to fight if you want justice. You can’t rely on the system to just give it to you. You cannot rely on the police, the prosecutor or even the court to admit that a mistake was made and let you go. If you get stopped and arrested for a DUI in Kansas, you had better get the best Kansas DUI lawyer that you can find in that jurisdiction because even if your breath test was under the legal limit or your blood test comes back clean, you may still find yourself charged and you will get marched to a conviction or diversion unless you and your attorney call their bluff. If you have a Kansas DUI lawyer that the other side knows is skilled and not afraid to go to trial, you are much more likely to get the case dismissed, or beat it at trial. Also, if you get charged with Kansas DUI based on the opinion of a DRE, you had better get a lawyer that is familiar with the DRE program and how to fight a DRE DUI in Kansas. Law enforcement has gone to great lengths to prop up this program, and more and more officers in Kansas are getting trained on it. I am seeing more and more cases pursued by the police where the driver blew .000 for alcohol, but the police insist that the person is impaired by drugs, whether legal drugs or not, with or without a prescription. The weight, might and resources of the government are many and you need a David to try to slay that Goliath.
The case of the low blow
One beer, no drugs.
That’s what Leah Bailey, 23, said she had consumed in the hours before a Eugene police officer arrested her for intoxicated driving just after midnight on Oct. 18.
Tests ordered by investigators revealed that Bailey had a .01 percent blood alcohol content and no trace of any other drugs in her system on the night of her arrest — results that appeared to support her assertion.
But police said they developed probable cause to arrest Bailey after she had driven erratically and failed portions of sobriety tests administered to her by two different officers, one of whom suspected — before urinalysis results indicated otherwise — that she was high on marijuana.
Bailey, an Alaska native who graduated from the University of Oregon in December with degrees in human physiology and psychology, disputed the DUII charge in Eugene Municipal Court. Prosecutors who had initially decided to go forward with the case finally dismissed it last week, after concluding they could not prove the allegation beyond a reasonable doubt. “I’m glad it’s over,” Bailey said. “I think (police) just assumed I was lying to them, but I really just drank one beer.”
Under Oregon law, it’s automatically illegal for anyone to drive with a blood alcohol content of 0.08 percent or greater — a far cry from the literally next-to-nothing result in Bailey’s case.
But a person may still be convicted of intoxicated driving if they are found to be mentally or physically affected to a “noticeable or perceptible degree” as a result of using any combination of drugs and booze, regardless of their blood alcohol level. Investigators in Bailey’s case presumed an alcohol-marijuana mix had affected her driving.
City prosecutor Dan Barkovic said he doesn’t see anything improper about police officers’ treatment of Bailey, who was headed home after attending a friend’s birthday party when officer Ryan Stone stopped her car after seeing it speeding and crossing into a bicycle lane near the corner of 28th Avenue and Monroe Street.
Stone “did what he was supposed to do,” Barkovic said. Police “can’t let people drive off if they think they’re impaired.”
Police reports state that Stone noticed Bailey’s legs and eyelids were unsteady during field sobriety tests, her eyes were red and her pupils were dilated.
Stone arrested Bailey and took her to the police department, where she was given the breath test that detected barely any alcohol.
Finding that result inconsistent with his observations, Stone called in Junction City police officer Brian Paterson to evaluate Bailey for drug use. Paterson, a state-certified drug recognition expert, concluded that Bailey was under the influence of marijuana.
Bailey told police that she occasionally smokes pot, but hadn’t since about eight days earlier, according to police reports.
She took a urine test that state police forensic scientists examined. They informed police on Nov. 20 that no evidence of drug use had been detected.
Stone declined to talk specifically about Bailey’s case, saying that he was not authorized to do so. But he acknowledged that “it doesn’t happen very often that we’d find someone impaired at that (0.01 percent BAC) level” without a suspect having also used illegal or prescription drugs that could affect their driving.
Stone, whose primary task is DUII enforcement, said he doesn’t arrest every driver who he initially suspects of driving while intoxicated. “There have been plenty of times where I’ve done a full investigation and determined a person is not impaired,” Stone said. “I certainly don’t have any preconceived notions about what I’ll be doing with a person until my investigation is complete.”
“I was definitely frustrated”
Bailey said she wonders if her insistence after being pulled over that she was not drunk or stoned might have worked against her.
“I was definitely frustrated, and probably had a little bit of an attitude with” police, she said.
Bailey was not jailed after her arrest. She took a taxi home from the police department, and the next day paid $250 to get back her car, which police had impounded the previous night.
Although the intoxicated driving charge was dismissed, Bailey did plead guilty to crossing into a bicycle lane and ordered to pay a $200 fine.
Bailey characterized the entire experience as an eye-opener for her. “I’d never been arrested before,” she said. “It was pretty scary, and probably not the best way to learn how police and the courts work.”
Tony Rosta, a Eugene attorney who works as a public defender in Eugene Municipal Court, said some police officers are more ambitious than others about investigating potential intoxicated driving cases.
“I think the public would be surprised to see just how zealous some of these guys go about enforcing these laws,” Rosta said. He declined to name any officers who he feels are particularly gung-ho.
But Rosta and other local defense attorneys say there’s nothing new or unusual about prosecutors filing charges in “low blow” intoxicated driving cases that don’t involve evidence of other drug use.
“It happens a lot,” Eugene defense attorney Robert Schrank said.
Barkovic estimated that more than 90 percent of all DUII cases reviewed by prosecutors in his office after Eugene police officers make arrests involve suspects with BACs at or above 0.08. But he said he’s handled a number of intoxicated-driving cases that involve far lower measured levels, and once persuaded a jury to convict a person of DUII after they blew a 0.04. No other drug use was suspected in that case, he said.
“It becomes more difficult (to prosecute a low-blow case) because you don’t have that (automatic) presumption that someone was under the influence,” Barkovic said. “But the amount of the blow doesn’t always determine things. What it comes down to (in order to gain a conviction) is whether or not there is enough evidence of impairment.”