Are Blood Draws for Marijuana indicative of impairment?

I have always stated that the Washington State Marijuana DUI Per Se limit is baseless and does not have an iota of analysis to back it up.  The per se limit in Washington state is 5 ng/mL of whole blood of active THC.  That means if you are caught driving after smoking marijuana and have a blood level of 5 ng/mL of whole blood you are automatically (per se) guilty of DUI.

Recently a study was completed basing the results of some DREs (Drug Recognition Exams) and their correlation to blood draws when THC was used.  The researchers concluded, " Based on this analysis, a quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported." Basically the research shows the per se limit in Washington of 5ng/mL of whole blood is baseless or as they say, "it went up in smoke."

One interesting note was that in this study, on the walk and turn test (one of the standardized tests used to assist officers in making an arrest decision) 55.5% of the people who had not smoked at all passed it while only 6% of the marijuana smokers did, those that were drug free.  (Note: this means the 44.5% of sober people couldn't pass the walk and turn).  When the researchers compared the results to the various levels of THC found in the blood of those individuals who did smoke, there was no correlation to people with lower or higher THC levels doing better or worse.  Essentially they determined the roadside tests are superfluous when making a determination as to the impairment of someone suspected of smoking or ingesting marijuana and driving.

You can read the article here for further information.

Call us today if you have been arrested for a DUI in Washington State. (425) 522-4200.

If the facts of the crime charged don't meet the elements of the crime, should the charge be dismissed?

Many times I see people charged with crimes ranging from Theft to, of course, DUI and the facts alleged in the police report simply don't add up to the elements of the crime charged. Take for example a recent case I had wherein a client was charged with Hit and Run of an Attended Vehicle (RCW 46.52.020) in addition to DUI.  The victim stated to police the individual who struck her acknowledged he hit her vehicle and invited her to follow him to his business, which was just a few feet away from the accident, to exchange information.  Moments later, the police went inside the business location and arrested the individual for DUI and Hit and Run.  We filed motions to suppress based upon the ruling in State v. Knapstad and the court granted the dismissal of the Hit and Run (click here to see press write-up).  Our preliminary motions filed assisted this client in having one of the charges dismissed.  

When the facts don't add up to the charge, it is essential your attorney is skilled and knowledgeable enough to know what to file and when.  Here it saved this client a further license suspension and potential for jail.

The ruling in State v. Knapstad essentially stands for the proposition that even assuming the facts in the police report are true, it doesn't establish a case under the charged crime.  So in the example above, Hit and Run, the individual did not knowingly strike someone and leave the scene without leaving information, quite the contrary, as the judge concluded, he invited her into his business just a few feet away after acknowledging the accident.

Call us today! (425) 522-4200 to speak with Seattle's Best DUI Attorney.

About the author:

In his 10 plus years of practice, Seattle DUI Attorney, Nate Webb, has been repeatedly named Super Lawyer Rising Star by Washington Law and Politics Magazine and a Top Attorney in the State of Washington by Seattle Metropolitan Magazine.  He has garnered numerous Not Guilty Verdicts and dismissals for clients charged with criminal offenses.    

Are defense attorneys deserving of the stigma placed upon them?

No one condones driving while impaired, it is a foolish proposition to assume a DUI defense attorney would want someone on the road who has the potential to harm others due to their impairment.  What we, as DUI Defense attorneys, and defense attorneys in general, are really doing is defending liberty and ensuring we don't have a police state wherein all accused persons are automatically found culpable.

Think about it: What kind of world would we live in if just because the government were to allege some offense it would be good enough.  Even when police officers, judges and attorneys are accused of DUI, they enter a plea of not guilty at arraignment, why?, because there is a process and the government has an obligation to prove its case.

I hear all the time "well the State wouldn't have charged him if he did nothing wrong." It is a difficult thing sometimes to get that bias out of the minds of jurors.  I've conducted numerous jury trials and the bias towards the actions of the government comes up, my response is always, have you heard of the Duke LaCrosse case, have you heard of the thousands of people acquitted/released from improper findings due to subsequent DNA tests, what about rouge DUI cops trying to garner an award for most arrests (this happened)?

So it is our job as defense attorneys to represent the best interests of those accused of a crime, even DUI.  DUI defendants have less rights than your average criminal: they don't have a right to a private conversation with an attorney, in King County there really is no speedy trial right (right to a trial within a certain amount of time) and there is no defense to signing something and agreeing to somethign you didn't intend to or were coerced into signing when you could not be in a position to know what you were doing - so DUI are tough to defend, but I do it, I do it because everyone deserves a defense, even those who snear when I tell them what I do for a living.

I see moms, sons, daughters, sisters, CEOs, lawyers, police officers, etc. come into my office because they are accussed of a crime.  Are they automatically guilty in my eyes, of course not!  That is because I have seen all kinds of charges which were unsubstantiated.

The next time you get into a conversation about whether defense attorneys are defending guilty people, remember that anyone, anyone can be charged with an offense which has no merit.  Nelson Mandela, Dr. King, Duke LaCrosse, O.J. (yes O.J.! - the state didn't prove its case), etc. etc. etc.

So the next time you think about making some sort of negative statement about defense attorneys remember, you never know when you may need one....ponder this as well: did you cheat on your taxes, did you speed, did you hit that parked car and didn't leave a note, did you get home safe after drinking too much and driving, did you take that extra bit of money for something at work (a bribe, no matter how small), if you did, then you could be in the need of the services of a defense attorney. We are moms, dads, fathers, mothers and helpers, mostly we are helpers, ensuring thousands of people's rights are protected daily.   And you know what: we are here when you need us regardless of how you feel about defense atotrneys at this very moment!

Can Police just take my blood if arrested for DUI?

This is a common question and the answer depends upon the circumstances.  If you were arrested for an alcohol related DUI and you are capable of providing a breath sample (i.e., not injured as the result of an accident or incapable due to some ailment like emphysema) the officer must first offer you the opportunity to submit a sample of your breath.  If you refuse then the office may apply for a search warrant to obtain your blood and if approved the officer can obtain that blood by necessary means.  This means you could literally be strapped down onto a hospital bed and your blood could be drawn.  Now that is an extreme circumstance, but I have seen it happen.

Another situation in which the officer can take blood is when you consent to a blood draw.  The officer may simply ask you if you consent to a blood draw by presenting you with a consent form and if you agree, it is feasible the State would be able to utilize that blood draw in a subsequent trial.

In the instance wherein the officer suspects you have been consuming or ingesting some type of drug other than alcohol, for example, marijuana or cocaine or oxycontin, then the officer may again apply for a warrant and if approved, your blood may be drawn and ostensibly used as evidence at a trial.

The bottom line is that unless you readily consent to a blood draw, the officer must obtain a warrant.  It is always advisable to ask for an attorney immediately upon arrest to preserve your right to challenge any subsequently obtained evidence in a DUI case or any criminal case for that matter.

The rule is: ask for an attorney and do not speak with police after an arrest, it is a very basic premise and one anyone arrested should exercise but the capacity to adhere to that can prove challenging, especially if one is under the influence.  There is a line from a Shrek movie that goes something like this:

                       Donkey: I have the right to remain silent!
                       Shrek: Yes Donkey you have the right, what you lack is the capacity...

So, don't consent to any search and always ask for an attorney.

As always, please feel free to call us at the Webb Law Firm for advice and a free consultation for any DUI arrest.

Seattle DUI Attorney, Nate Webb, discusses the common question: "How can I beat the breath test?"

Seattle DUI Attorney, Nate Webb, answers the question: "How can I beat the breath test?"

Quite frequently when I am at a dinner party or some other function and disclose that I am a DUI attorney, I'm inevitably asked the question, "what do I do if I get stopped" which then turns into "how can I beat the breath test?"  Well, the smart alec answer is "don't drink and drive" and of course that is true, but what about the person who has consumed alcoholic beverages responsibly and is now faced with a breath test?

Well, that person knows in their mind they don't feel affected or impaired but have no idea how this machine measures breath.  There are known variances which automatically raise your level which I've previously blogged about but here is another tip for those concerned with being near the per se ("legal limit") threshold of .08 and blowing over after drinking.

TIP: When you are taking a breath test, the machine (DataMaster) will record a proper sample at approximately 5 seconds and most assuredly at 8 seconds so your best bet is to blow only for that period.  The officer or trooper will coach you and demand you blow much longer, but that minimum is all that is necessary for the machine to record a result.  The reason this is important is because there is much research which indicates that the longer you blow the higher your result will be.  Troopers regularly testify that when you blow longer it just records a "more accurate" sample but the truth is the longer you blow the "higher" your result, not more accurate.  Law enforcement is trained on this concept and typically demand a 20 second or longer blow from a subject thereby increasing the sample.  Meeting this minimum level will be recorded in the online database and probably won't make the officer happy due to their training to get you to blow longer, but the fact is if you submitted a proper blow and it was recorded, you complied with the request.  Also, the result will be much lower than if you actually blow 20 seconds or more.  

Some people will say that you should suck on a penny or some other object to skew the results, but I have not ever found that to be an accurate or advisable method.

A seasoned Seattle DUI Lawyer will know how to challenge the results provided and present the known variances and presumptions in breath testing when a jury trial occurs, but this is just one tip.

Also, if you did submit to a breath test, always, I repeat, always ask for an independent blood draw.  You cannot be denied that opportunity.  If it was denied because you were booked into jail then the breath test results should be suppressed by the court.

If you or someone you know has been arrested for DUI, call today for immediate assistance from one of the "Top Attorneys" in Washington State for DUI Defense and Super Lawyer Rising Star and Superb rated DUI attorney (Avvo.com).  Hundreds upon hundreds of satisfied DUI clients.

Call today (425) 398-4323 or visit our site: www.webbattorney.com

Seattle DUI Attorney, Nate Webb, Marijuana DUI Lawyer discusses: Is one puff too many, two puffs, three puffs?

Recently I had an individual come and see me about a possible Marijuana DUI charge.  Hypothetically if an individual admitted to use, which is legal in the State of Washington, but was adamant they were not impaired by their "one" puff prior to driving and that the use was for therapeutic reasons can they still be convicted?.  Typcially I would assure an individual that one puff wouldn't get them close to the per se limit of 5 ng/mL of whole blood.  But it does beg the question, how many puffs are too much given the 5 ng/mL standard?

When the legislature enacted the per se limit of 5 ng/mL of whole blood as a per se "impaired" limit it essentially relied upon other state's per se limits.  There is no definitive research out there which establishes that ever person who had a whole blood concentration of 5 ng/mL is impaired to the degree that they cannot operate a motor vehicle.

So when someone is a regular user, much like a regular consumer of alcohol, how does that individual know how much is too much?  There is simply no way to tell given the quality of the herb, the potency of the particular varietal they smoked or consumed.  It is a very slippery slope that people are not encountering.  When in doubt, don't smoke and drive but if you are therapeutic user for example you would be well-advised to have your blood checked a few times after you normal use to determine where you are on the spectrum of ng/mL measurements.

Personally I believe it isn't fair for the therapeutic users to be subjected to arrest simply because some overzealous trooper or officer smells marijuana and automatically thinks they have someone impaired when they typically have very limited ability to determine impairment using roadside test which were implemented to gauge impairment of drivers who consumed alcohol.  This area is ripe for litigation given law enforcements limited ability to tell if someone is impaired or under the influence of marijuana.

Just look at NHTSA's own description of use of marijuana, it is so vague I wonder if the Washington State Legislature really did any research at all.  Also, see this resource which says that marijuana use doesn't significantly impact driving abilities as well as a University of Washington study which says it still needs more research to definitively say whether there is any impact on driving.

If you or someone you know has been arrested for a DUI, including a Marijuana DUI, call today to speak with a highly experienced DUI attorney, Seattle Marijuana DUI Lawyer, Nate Webb at (425) 398-4323.  

Seattle DUI Attorney, Nate Webb, discloses how everyone's alleged breath test result is elevated by 6.5% automatically!

For the last 15-20 years or so the Washington State Patrol has utilized a machine to test, via breath samples, for an estimate of ethanol in a subject's system named the BAC DataMaster and BAC DataMaster CDM.  Why do I say it is an "estimate" of a person's ethanol level? Because the principles utilized are just that, an estimate.  For example, as stated in the title of my post, every single person who submits to a sample of their breath, who has consumed any alcohol at all, will have an increased ethanol estimate of 6.5%. 

The reason is that the Washington State Patrol utilizes an old theory of internal checks via what is called a simulator solution to check that the machine is reading a .08 mixture (prepared by the Washington State Toxicology Lab).  The Tox Lab prepares this mixture and it is heated up to 34 degrees Celsius to simulate the mouth temperature of all persons on earth.  The problem with this assumption is that the figure 34 degrees Celsius is based upon a small sample study conducted in the 1940s wherein it was concluded that the mean temperature of persons (only in that sample group) mouth was 34 degrees Celsius.  A more recent study with a much larger sample size concluded that the average temperature is actually 35 degrees Celsius. 

This means that every single person who submits to a sample of their breath on the DataMaster who has consumed any alcohol recently will automatically have an increased estimate of their breath based upon this outdated theory the government still utilizes to this day!  Seem unfair?  Of course it is but they don't care.  It is only when I cross examine the State's "expert" in breath testing (really only a glorified button pusher) that this revelation is made to the jury. 

We at the Webb Law Firm make it a priority to keep up with the most recent studies and treatises on breath testing, especially how it relates to physiology and biology, in defense of those accused of a DUI.  Call today to find out more about how the government's machine is being used in a false manner each and every time. 

Call us today! (425) 398-4323 to speak with Seattle's Premier DUI Defense Attorney.

About the author: In his 10 plus years of practice, Seattle DUI Attorney, Nate Webb, has been repeatedly named a Super Lawyer Rising Star by Washington Law and Politics Magazine and a Top Attorney for DUI Defense by Seattle Metropolitan Magazine and has numerous Not Guilty DUI verdicts and dismissals under his belt.