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.