DUI Defense Lawyer: Prescription Drug Use, plus Driving Can Equal a DUI Charge

An alarming DUI enforcement trend is prescription drug use resulting in DUI charges. Here is an actual scenario: A driver prescribed Venlafaxine for depression and Diazepam for anxiety, is pulled over by the police for speeding, fails field sobriety tests, and is charged with a DUI based upon prescription drug use.  The driver then obtains a letter from a physician saying the prescribed drugs have been taken by the driver for months, if not years, and that they are not impairing or sedating in any way.  Despite this evidence, the driver faces DUI charges. 

DUI charges used to be based upon impairments related to alcohol consumption.  However, it is now common to be retained by clients who blow 00/00 on the Lifeloc or other BAC breath testing equipment.  If someone blows over .08 on a breath testing instrument then they are DUI regardless of the outcome of field sobriety tests. However, if a person blows under .08, the charge used to be dismissed unless other evidence of intoxication or impairment was demonstrated. 

What is now occurring is that the police and prosecutors are turning to drug impairment prosecutions for DUI.  For example,  if a person says they ingested no alcohol but took prescription  drugs sometime in the recent past, then any failure to perform field sobriety tests will likely be tied to the use of prescription drugs.  A drug recognition expert (DRE) is called and asked to give an opinion that a person is impaired and it is unsafe for them to drive because of their medications.  They then seal the deal by having the person consent to a blood draw, or if the person refuses to consent to a blood draw, by having a warrant issued for a blood draw. Once the blood draw comes back confirming that the suspect used medications then the suspect may well be convicted of a DUI.  In other words, if you tell the police officer after you are stopped that you are taking medications and if you perform poorly on the field sobriety tests then it’s likely you’ll be charged with a DUI. 

Many people take prescription medications the night before they drive.  Those persons are still vulnerable to a DUI charge.  Similarly, if marijuana is ingested several days ago and the blood test results are positive for a metabolite of marijuana (Carboxy-THC), it is likely that the DRE or a pharmacologist will determine that the person was impaired due to drugs. 

So, what should people do to avoid a DUI prosecution based upon the use of prescription drugs? A driver who has taken prescription medications or has recently consumed marijuana should refuse to perform field sobriety tests. These tests are extremely difficult to perform under any circumstances.  If you are not a yoga practitioner you will probably fail these tests.  A driver should also refused to be interviewed by a DRE.  A DUI suspect has the right to avoid self-incrimination.  If they refuse to submit to an interview or tests performed by a DRE, then they are not showing consciousness of guilt.  See State v. Stark, 157 Idaho 29, 333 P.3d 844 (Ct. App. 2013). 

Obviously impaired persons should not be driving a motor vehicle.  They are a danger to themselves and other persons and property.  However, simply because a person takes prescription medications and fails field sobriety tests, which are designed to detect alcohol impairment, does not mean they should be deemed impaired and prosecuted for DUI. 

My point is that it is best not to help the police and state prosecute you for a DUI simply because you are taking medications.  You do not have to help them dig up the dirt on you by submitting to field sobriety tests or responding to DRE interviews.  Sometimes, silence is golden.  *

Thomas B. Dominick is a Cincinnati Reds fan and a DUI defense attorney.

*A driver does have to submit to BAC tests (but not field sobriety tests) if requested. Otherwise, you will lose your license for refusing to “blow” and the police may order a blood draw anyway.

Client Found Not Guilty in Torch 2 Hate Crime Case.

On February 13, 2015, a federal court jury found that Jon Henery was not guilty of a hate crime attack at the Torch 2 club located in Boise.  Although witnesses said that Henery and his co-defendant repeatedly uttered racial slurs at the alleged victim, the jury, after a two week trial, concluded that a hate crime did not occur.  This was the first hate crime case ever prosecuted by the federal government in Idaho.  Defense attorney Thomas Dominick represented Henery and said after the case that the federal case should not have been brought.  “Lewis was beaten in a bar fight,” he said.  “We’re grateful the jury was able to see through the mud thrown in this case.”  Dominick said “It should have been a state (battery) case.” 

At trial, Henery’s attorney produced evidence that Henery was not a racist and did not take action until he believed that his co-defendant and friend was out numbered two to one and needed his defense.  Only then did Henery become involved in the altercation.

The federal government decided to prosecute Henery under the federal hate crime statute because the sentence that could have been imposed was up to 10 years, longer than a state case.  Henery and his co-defendant were seen as trouble makers and the federal government wanted to send them away for a long time. 

 The allegations were investigated by the FBI, the local US Attorney’s Office, Ada County Prosecutors, Boise Police, and the gang unit. 

 An issue raised by defense counsel for Henery early on was the constitutionality of the Federal Hate Crimes Statute.  The argument was made that the federal law was unconstitutional in violation of the Thirteenth Amendment to the United States Constitution.  US District Judge B. Lynn Winmill rejected this argument and denied the motion to dismiss saying that case law upheld the constitutionality of the statute.  The Thirteenth Amendment prohibits slavery or involuntary servitude.  Dominick argued that states should prosecute these types of cases, not the federal government.

Evidence Suppressed in Drug Case involving Canine.

Fourth District Judge Lynn Norton recently suppressed evidence in a case involving an Idaho State Police trooper who pulled over the Defendant for failing to signal for five seconds before a lane change.  After the stop, the Trooper was convinced that the driver was nervous and called for a drug dog to investigate.  The dog ultimately alerted on the vehicle.  A search of the vehicle revealed marijuana in greater than misdemeanor amounts, approximately four ounces (three ounces is the limit for felonies in Idaho).  After a suppression hearing, Judge Norton ruled that the marijuana evidence and the statements made by the Defendant should be suppressed.  The Judge ruled that nervousness was not sufficient reasonable suspicion to justify expanding a traffic stop into a drug investigation.  The Court cited State v. Gibson, 141 Idaho 277, 286 (Ct. App. 2005) for the proposition that nervousness is of little significance in connection with a determination of reasonable suspicion.  Since there was a lack of reasonable suspicion to extend the investigation into a drug investigation, the Court ruled that the evidence, including the marijuana that was found during the search, should be suppressed.  Moreover, the Court also ruled that the statements made by the Defendant were tainted by the suppressed marijuana evidence and were fruit of the “poisonous tree.”  Therefore, those statements should be suppressed.  Also, the Defendant had not received Miranda warnings prior to talking to the police even though he was detained.

Appeals court overturns Boise man’s DUI case

BOISE, Idaho — The Idaho Court of Appeals has overturned the conviction of a Boise man for driving under the influence of marijuana, a rare reversal for a kind of case legal experts say is typically settled by the science of blood testing.

In a decision issued late last week, the court reversed Geirrod Stark’s 2010 misdemeanor conviction on grounds that the blood tests taken after his arrest only proved he had used marijuana recently, not on the specific day he was pulled over by police.

While there is no question Stark was impaired that day, wrote Judge Pro Tem Jesse Walters, there was no proof that drugs – and not some other condition – caused the erratic driving.

“Although this evidence was sufficient to prove that Stark’s ability to drive was impaired, it was not sufficient, by itself, to prove that Stark was under the influence of drugs or intoxicating substances,” Walters wrote.

Stark was initially arrested July 8, 2010, and submitted to a blood screening that showed trace levels of THC, the psychoactive ingredient in marijuana.

During his original trial, Stark said he occasionally used marijuana but hadn’t used it the day he drew police attention by making an illegal right turn. Stark attributed his failure in field sobriety tests to hunger and dehydration. Stark also said he suffers from paranoid schizophrenia and bipolar disorder.

Stark’s attorney, Thomas Dominick, said it’s unusual for impaired driving cases to be overturned in appeals court.

“In this case there was evidence of impairment, but they have to show that the impairment was caused by alcohol, drugs or intoxicating substances,” he said.

The decision has also attracted the attention and concern of the Idaho attorney general’s office, which filed a petition to the Idaho Supreme Court seeking a review of the appeals court opinion.

Deputy Attorney General Kenneth Jorgensen said the state has established case law for alcohol infractions, but the legal books are less clear when it comes to other substances.

“We don’t have a lot of established law about what the state has to prove on driving under the influence of drugs,” he said. “That’s why we think the Supreme Court ought to take a look at this.”

Defending A DUI in Idaho Just Got Tougher

Defending a DUI charge in Idaho just got tougher.  My client was stopped for failure to signal a lane change and for speeding.  He admitted drinking, and after barely failing field sobriety tests, was offered a breath test.  The breath testing instrument, a Lifeloc FC20, indicated a BAC of 0.92/.087.  The legal limit in Idaho is 0.80.

There is a margin of error in breath testing.  It is not an exact science.  So one element of the defense to DUI for close cases has always been to argue reasonable doubt i.e., the blood alcohol level, with a margin of error of .0264.  My client’s test results could be as low as.0656 to .0606.  Both my client’s results would be well below the legal limit of .08.

In this case, the State asked the judge to preclude the admission of “margin of error” testimony relying upon the recent Idaho Supreme Court case of Elias-Cruz v. Idaho Department of Transportation, 153 Idaho 200, 280 P.3d.703 (2012).  In Elias-Cruz, the Idaho Supreme Court ruled, in an administrative license suspension case, that the testing machine’s margin of error is irrelevant.  The issue is not the alcohol concentration of the blood.  It is the alcohol concentration shown by the test results.  All that is required is that the test results show that the alcohol concentration was above the legal limit.  In other words, if the test results show that the alcohol concentration was above the legal limit, then the license is suspended.  Since the driver in that case failed to show that her test results were below the legal limit, then her license was properly suspended.

The question of whether Elias-Cruz’s holding that the “margin of error” of  breath testing instruments is irrelevant in DUI defense cases has been decided by three magistrate judges in the Fourth Judicial District, Ada County, Idaho.

One magistrate ruled that Elias-Cruz’s holding did not apply to DUI defense cases and was limited to administrative license suspension cases.  See State v. Cravens, CR-MD-2011-0013066 (decided August, 2012).  The magistrate ruled that the DUI statute does not limit the right of a defendant to introduce evidence to the jury relevant to “the weight and credibility of breathalyzer evidence, or to attack the reliability of both the test results and the process utilized on that defendant.”

In contrast, two other magistrates, including in my case, have now ruled Elias-Cruz applies to DUI cases and that “margin of error” evidence is therefore inadmissible.  See State v. Myrick, CR-FE-2011-0020266 (October 1, 2012) and State v. Tabish, CR-MD-2012-0005728 (2012).

It is uncertain as to whether Idaho appellate courts will apply Elias-Cruz in all DUI defense cases.  At this time, it is uncertain whether “margin of error” evidence will be allowed in the courts in the Fourth Judicial District.  Previously, such evidence was admissible.  Accordingly, the defense of DUI cases just got much tougher in Idaho.

My client entered a conditional guilty plea.  I hope he decides to appeal.  This ruling needs to be reversed.  I will always fight for my clients’ rights in criminal cases.

This is scary; don’t let it happen to you this holiday season!

With New Year’s Day approaching don’t ruin your holiday with a DUI or drug possession charge.

In a recent case, Dominick Law Offices represented a man who was stopped for an expired license plate.   The case resulted in a drug possession charge.  Here is how that happened.

The officer told the driver that the reason he stopped him was because the registration on his vehicle had been cancelled.  The officer then told the driver that if the driver did not have any active warrants everything would be fine.  The officer ran the driver’s name through dispatch.  It is undisputed that 25 minutes after the original stop, a drug detection dog (K-9 unit) arrived at the scene.  The dog did a sniff of the car, which is legal without a warrant, and alerted on the vehicle.  A search of the vehicle found, in a camera case located in the rear of the vehicle, less than 1 gram of marijuana.  The driver was charged with misdemeanor possession of marijuana.  There was no reason for the officer to suspect marijuana use – no smell emanated from the vehicle and the driver was not under the influence of drugs.

The defense moved to suppress the marijuana seizure under the theory that it was seized in violation of the driver’s constitutional rights.  The United States Supreme Court has held that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes upon interests protected by the Constitution.  A seizure that is justified at its inception can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.  See Illinois v. Caballes, 543 US 405 (2007).  In other words, a driver cannot be detained longer than necessary to issue a citation.

At the suppression hearing, the officers testified that they had not requested a K-9 unit.  Rather, it was the practice of the police for K-9 units to show up at a simple unregistered vehicle stop and conduct a drug sniff.  The magistrate believed the officers’ testimony and ruled that there was simply a delay in receiving information concerning the driver and therefore taking 25 minutes to issue a citation was not unreasonable.  Please note that it is the policy of the Boise Police Department that if a citation is issued before a K-9 unit arrives then the dog will not be allowed to conduct a sniff of the vehicle.  Therefore, the officer had reason to delay issuing the citation.

While ultimately this matter was resolved based upon a plea to the lesser charge of frequenting, or being in a place where drugs are located, this case is scary because anyone stopped for any reason can be delayed so that a drug detection dog can come and sniff the vehicle.  Many people use marijuana for various reasons such as a sleep aide.  There are medical marijuana laws allowing subscriptions for marijuana in some of our surrounding states.  The lesson to be learned is that if you want to avoid having your holiday wrecked while in Idaho, do not under any circumstances keep marijuana in your car or even in luggage in the back of your car.  Even if there is no probable cause to search your car for marijuana possession, no drug smell, no indication of drug use by the driver, etc., the police can and will have a dog sniff the vehicle to determine whether drugs might be present.  If the dog alerts on the vehicle, then it is perfectly legal for the vehicle to be searched without a warrant because the alert provides probable cause for a search of the vehicle.

If you or someone you know receives a DUI or a drug possession charge this holiday season, or need a Boise or Idaho criminal defense attorney, divorce attorney or personal injury attorney, then please contact Dominick Law Offices, PLLC, for legal representation.

How to Hire a Lawyer

If you are charged with a crime, facing a divorce, or embroiled in another legal dispute, it is important that you choose the right  lawyer.  If you are charged with a crime, it is likely that you will be inundated with solicitation letters from lawyers.  Some lawyers read the arrest records of persons charged with crimes and send them letters they call “advertisements.”  They have to call them advertisements in order to avoid sanctions from the Idaho State Bar’s Disciplinary Committee.  These lawyers offer extremely low rates and flat fees.  However, you get what you pay for.  They rely upon volume and may simply run you through the system, and may treat your case like a number and not a real person.

Other lawyers advertise on the internet, purchasing large ads.  Lawyers can receive great legal  placement for their advertisements if they pay Google large sums of money each month.  The fact that a lawyer advertises on Google, in the Yellow pages, or on radio or television does not make them a good lawyer.  If they received sufficient references because of their success, they would not need to advertise as much.

If you want to find a good lawyer, the best person to ask is another lawyer.  This work has been done for you by a rating agency called Martindale-Hubbell.  Martindale-Hubbell rates lawyers.  They conduct confidential interviews with other lawyers and judges.  They ask lawyers and judges to rate a particular attorney.  That attorney then receives a rating based upon these confidential interviews with other judges and lawyers who are in the best position to know who is good and who is not.  A lawyer must have at least a “C” rating and be very ethical in order to be rated by Martindale-Hubbell.  A “B” rating means that a lawyer is good.  An “AV-Preeminent” rating shows that a lawyer is a preeminent lawyer, in the top 10% of all lawyers in Idaho, and has the highest ethical standards.

I am an AV-Preeminent rated attorney.  It is easier to make deals in all areas of law from divorce, personal injury, water disputes, business matters and other litigation matters if the attorney is well respected.  The reputation earned through a Martindale-Hubbell rating usually comes because the lawyer is seen as well prepared, thorough, knowledgeable about the law, and is able to present the client’s case in the best possible light.

Other lawyers may charge what they initially promise to be a flat fee, but you will end up paying more money if they have to do any work, such as file a motion or appear at trial. Many have little trial experience.

The next time you are considering hiring a lawyer, please consult with someone who knows lawyers, another lawyer or a judge.  Please consult Martindale-Hubbell or Lawyers.com for lawyer/judge ratings of Idaho attorneys.

Personal Injury

Mr. Dominick represents numerous personal injury clients on a no recovery/no fee basis.  Mr. Dominick has received excellent verdicts for his clients including a slip and fall accident in Mountain Home, Idaho.  In this case, the the jury awarded one of the largest verdicts ever in Mountain Home.  Mr. Dominick tries to obtain the largest settlement available for the client.

It is important that a personal injury attorney be contacted immediately after the accident to safeguard the evidence and to coordinate the response.

Water Rights

Mr. Dominick recently obtained water rights for a mine located in the Challis, Idaho area.  The rights had been lost because they were claimed by the caretaker who filed them under his name instead of on behalf of the corporation. 

Mr. Dominick was able to have the judgment overturned and the water rights were awarded to Mr. Dominick’s client.

Criminal Defense

Mr. Dominick has won his last 11 jury trials and his clients have been acquitted in those cases.  In one such case, Mr. Dominick’s client was videotaped stealing items and the client then signed a confession.  However, the jury acquitted the defendant. 

Mr. Dominick has been involved in many extremely large and complex federal conspiracy cases involving drugs, alien smuggling, etc.  There is no matter too small or large for Dominick Law Offices to handle in the criminal defense arena.