|image courtesy psychologytoday.com|
Saturday, October 24, 2015
NEW MARIJUANA BREATH TEST
in development at Washington State Univ.
for Roadside Encounters...
This is big news. Here is a link to article. In reading the article, these scientists are "excited" that their device is correct 50-60% of the time! WOW. And they expect to roll this technology out by the summer of 2016.
To begin...this scares the hell out of me for my prospective clients in the coming years.
Defending DWAI Drugs charges are VERY difficult for many reasons. In New York, the prosecutor is allowed to prove that you were, in fact, impaired by drugs (and in violation of the law) if there are illegal drugs found in your blood OR any drugs that could affect your ability to operate a motor vehicle (i.e. prescription, legal meds). OR they can prove it by using a junk science technique called "Drug Recognition Evaluation" where a police officer puts you through a battery of coordination tests to supposedly prove that you are impaired on drugs.
So our current landscape for prosecuting driving while under the influence of drugs is shoddy and unreliable NOW.
There have been NO STUDIES OR MEDICAL RESEARCH (at least that I am aware of) that measure exactly how much marijuana somebody has to smoke or ingest to be impaired to the extent where one cannot operate a motor vehicle. In some states, it has been said that 5 nanograms of marijuana means you are impaired. However, that number has not reliably been proven in scientific studies measuring various people's level of impairment.
Unlike alcohol where New York has determined that 0.08% BAC is the magic number where a person is likely to be unable to safely operate a vehicle, there is NO SUCH NUMBER EQUIVALENT for Drugged driving cases. That's a problem. Mostly because there is NO NUMBER associated with measuring drugs in your blood. Just the presence of them. A blood test also cannot measure if you are still feeling the effects of any drug...just whether it is in your blood...(or its remnants). It's unreliable and can get you convicted of a crime (and give you a permanent criminal record --as there is NO EXPUNGEMENT IN NEW YORK).
How will it be quantified? I don't know (nor do they).
Also, MARIJUANA in particular takes weeks to fully break down in your body. If you smoke weed and take a blood test 3 weeks later, it is very likely that there will AT LEAST be marijuana METABOLITES in your blood.
The quantity of a drug cannot necessarily be determined by a blood test. The most invasive test we use in New York for determining alcohol or drug consumption.
SO NOW THEY WANT TO USE YOUR BREATH to Determine if you have Weed in your blood? (a flawed concept in itself)
Given how unreliable the ALCOHOL breath test is, I am incredibly skeptical about this new marijuana breath testing device. Just using common sense, if you have ever been around somebody who smoked weed, it has a VERY powerful and distinct odor. The smell will be on a user's breath, on their clothes, and on surrounding furniture --FOR A LONG TIME. If the device just detects the odor--how will it know if the odor is coming from somebody's breath or from their clothes. What if you were in a room where people were smoking weed and you got the smell on your clothes--but didn't partake?
I'm scared for my clients because I believe this sort of technology will be extremely unreliable in effectively prosecuting people with a reasonable rate of accuracy. I think good people will be falsely accused due to a positive reading on one of these tests and will not be given the benefit of the doubt even if they have no prior criminal record ---just like first time DWI offenders are not given the benefit of the doubt now in Ithaca and surrounding counties where I practice.
In most cases, the District Attorney assumes everybody is guilty...and doesn't give credence to the fact that the accused has NEVER been in trouble before. It's a problem now, and I'm worried it will be an ever BIGGER problem if this sort of marijuana breath test technology is implemented in our local law enforcement.
My take is this: the police will pull you over, smell weed, make you take one of these breath tests, if you refuse (it will likely be a traffic ticket like the alcohol roadside equivalent) and then they will ask you to take a blood test (and if you refuse, then you will lose your license for a year and be subject to $1000's in fines, etc).
Blood tests are not reliable either. You can read some of my other posts on Blood Gas Chromatograhy and Headspace Gas Chromatography.
The more I learn about the so-called science behind the tests that are used to determine a person's innocence or guilt in the criminal justice system, the more I believe that these sorts of "scientific developments" need to be challenged BEFORE they are implemented in our society --to prevent the wide spread possible negative outcomes on all of us for false prosecution.
BY Attorney Mike Cyr
Friday, October 23, 2015
Ithaca Schuyler County DWI lawyer: Both NY and Federal Government endorse Medication Assisted Treatment for Opioid Abuse
|President Obama, image courtesy huffington post|
President and NY Governor Cuomo
address "Medication Assisted Treatment"
deficiencies for Heroin abuse
I represent people from all walks of life facing all different sorts of legal problems. Some of my clients are dealing with addiction--whether it be an alcohol dependency or drug abuse. In either case, addiction is a disease that must be treated. Over the past several decades, global opinions have changed in the USA and worldwide about the best way to treat people suffering from addiction.
The problem change is that it is SLOW. Especially bureaucratic change. In the criminal court system in New York (and I imagine nationally), Judges, Probation Officers, Prosecutors, and even some defense counsel follow a particular paradigm when dealing with criminal defendants who are deemed to be addicts. There are programs and protocols that are followed in almost every case.
Unfortunately, some of those protocols have proven to be unsuccessful. Yet the system still adheres to them without pause or adaptation.
President Obama and Governor Cuomo are trying to change a significant piece of the system with their new initiatives.
Two days ago, President Obama announced that he was rolling out a new federal program to reward states (and state agencies) with federal dollars that complied with significant changes to the way they treat HEROIN abuse (opioid addiction).
The program seeks to change the current mindset that "ABSTINENCE IS THE BEST MEDICINE" for heroin and other opioid addiction. Up to now, most Judges and other people who deal with criminal defendants dealing with addiction believed that "going cold turkey" was the only way to deal with this kind of addiction.
Science and medical research prove otherwise. The powerful effects HEROIN has on a user's system cannot be simply fought with "mind over matter." The chemical dependency on the drug makes a user compelled to seek it out for their body and mind to even begin to feel like it is functioning normally --or to feel some kind of momentary peace from the powerful grip of needing another hit.
These articles go on to say that MEDICATION ASSISTED TREATMENT can yield better results with Heroin addicts because the medication helps to slowly wean the chemical dependency from the user over a period of time --to allow their body to adjust to the sudden lack of the drug.
Drugs like Suboxone and Methadone have been used for years to fight Heroin addiction, but the problem is that they are difficult to obtain and there are not enough qualified physicians to prescribe them to the people that need them most.
Obama's new initiative is designed to increase the number of physicians and availability of these drugs for people who need them. In my opinion (as a lawyer who represents people stuck in the horrifying grip of drug addiction), this is a good first step to alter the status quo because the current treatment methods do not work with any sustained level of success. There must be a better way --so I endorse any proposed change to improve things for drug addicts and their families.
IN ADDITION to Federal changes, NY Governor Cuomo instituted a new change to the Criminal Court system that PROHIBITS Judges from changing drug treatment protocols without medical consent.
This was a common sense change. Judges are NOT doctors. It made absolutely no sense that somebody without medical or addiction training could make a decision that would effectively take somebody out of treatment. Too much power for a medically ignorant court system.
I have seen first-hand the debilitating effects Opioid abuse can have on the user and the people that love them. Heroin is a horrible drug and it is currently the most prevalent and CHEAP drug on the streets. People suffering from the grip of Heroin addiction need help and I'm glad that the powers that be are at least trying to do something new to address the growing problem in the USA (and in New York).
By Attorney Mike Cyr
Thursday, October 15, 2015
|(image courtesy kerismith.com)|
Don't LIVE STREAM yourself
Drunk Driving on the Internet
in New York (or anywhere).
I keep up with DWI and DUI related news on a daily basis as part of my job as a criminal defense attorney. Sometimes, I share some things I read on this blog. This is one of those times.
In FLORIDA about a week ago, a 23 year-old woman made the error of driving while intoxicated. To make matters worse, she also drove drunk while playing with her cell phone (drunk + distracted driving). Then to make matters inescapably even worse...SHE LIVE STREAMED it online!
She used an app called "Periscope" to broadcast her actively drunk driving to millions of viewers on the internet.
In fact, the police used her broadcast to track her car down and arrest her. Fortunately, she only destroyed some property and nobody was hurt.
NOW WHAT HAPPENS TO HER?
As most of you with brains can imagine, her defense attorney has absolutely no case to defend her. In addition to breaking the law, she has given the prosecutor and police iron-clad proof to convict her and punish her to the fullest extent possible.
I encourage my clients to not break the law (usually after they have done it once already). However, I also encourage people to be very careful about what they post online to social media and other sites. If you put something online, whether good or bad, it can come back to bite you. Be careful the power of the internet. Once it's out there...it's out there.
By Attorney Mike Cyr
Wednesday, October 14, 2015
What happens if you drive
WITHOUT a Court-ordered
Ignition Interlock Device in NY?
Quick answer: You are charged with a Class A misdemeanor (and probably a violation of Probation or a Conditional Discharge).
The idea behind this post is an article that was recently published about how MANY, MANY Ignition Interlock orders across New York are being ignored. The article lists that only 26% of people sentenced to an IID are actually installing them.
I agree with the article that the figure is misleading because many people (especially those convicted of Felony DWI) sign an agreement to NOT drive anything for a long period of time following a conviction. Then, if they ever want to drive again, they will be required at that point to put the IID on their car.
According to Vehicle and Traffic Law, section 1198 (9)(a) through (e),CIRCUMVENTING AN IGNITION INTERLOCK DEVICE is a Class A misdemeanor for a person convicted of DWI in New York to NOT have the court ordered Ignition Interlock Device on their car.
A Class A misdemeanor carries the SAME PENALTIES as a first offense DWI (so it would be like starting a new case all over again right after resolving a DWI)!
Penalties include: -up to 1 year in jail / up to 3 years of Probation / fines / fees /etc
MORE IMPORTANTLY, if you fail to comply with the Ignition Interlock requirements set forth by the Court, then you will ALSO be charged with violating your Probation or Conditional Discharge.
If you are facing a Violation of a Conditional DIscharge or Probation then it is much harder to defend because the Prosecutor does NOT have to prove the charge beyond a reasonable doubt; instead the District Attorney only must prove "more likely than not" that you violated. This is a CIVIL STANDARD called a preponderance of the evidence.
If you are convicted of a DWI, you are required to have an IID installed within 10 days of sentencing (and must contact the local STOP-DWI monitor within 3 days of installation). In the meantime, a Defendant cannot drive anything after sentencing without an IID on the car--so it makes sense to either get it on the car BEFORE sentencing (in some counties you can do this) and in others you must wait until after sentencing (like in Tompkins).
The Ignition Interlock requirement NEVER goes away, so it must be complied with at some point in time in order to make the New York DMV and local court satisfied.
By Attorney Mike Cyr
Wednesday, October 7, 2015
|Loved this image (courtesy of veteranstoday.com)|
is NOT reliable and should be
banned from Court rooms across the
United States (and beyond).
This past week "Retrograde Extrapolation" technique used by Prosecutors on Long Island to prove somebody's Blood Alcohol Concentration (BAC) Level at the time of driving has gotten some press...
What is "Retrograde Extrapolation" ?
It is a "faux" scientific calculation that is supposed to determine what a persons BAC level was at an earlier time based on the results of a chemical test that read BELOW 0.08%.
In other words, if you took a breath test and it read 0.06% BAC, a Prosecutor in New York could make an argument that based on this so-called scientific calculation, they could prove that your BAC at the time of driving was actually HIGHER than 0.08% (therefore, you could be found guilty of a DWI).
Why is "Retrograde Extrapolation" JUNK SCIENCE?
Because it makes very large assumptions in every single case. For starters, it assumes that every single human on earth eliminates alcohol from their system at a constant rate of 0.15% per hour.
Doctors and scientists have found very large ranges in people for alcohol elimination. Some alcoholics may process and eliminate alcohol at a much faster rate. The single rate used in this calculation fails to account for: gender, race, physical fitness, tolerance, food intake, digestion, age, strength of alcoholic beverage, trauma from an accident, etc, etc, etc,
It makes an ever bigger assumption when it assumes a point a time when a person's alcohol absorption "peaked."
When we drink alcohol there are two phases. The absorption phase and the elimination phase. During the absorption phase, we do not yet feel the effects of alcohol until it has fully been absorbed by our stomach and small intestine into our blood stream. Then it travels all over the body through our blood and we feel it in our head! (getting "buzzed")
Problem with RETROGRADE EXTRAPOLATION: there is no way to measure or know when a person has finished the Absorption phase! (PEAKED)
However, in order for a real, reliable calculation to work, we would have to know precisely when the alcohol absorption phase PEAKED and the body began to eliminate alcohol (assuming the rate is 0.15). Without that precise time, there would be NO WAY to ever know what somebody's BAC was by simply adding backwards.
That is why I have strong feelings about PSEUDO-SCIENCE being used in court rooms in front of a JURY. (this stuff is believable if you don't understand the science behind it!).
If a Jury is not comprised of chemists and biologists (or mathematicians), then it would be confusing and sound really easy to believe if an "expert" for the Government is saying that they did this calculation and they're SURE the Defendant was over 0.08% at the time of driving... And they will testify that it is based on SCIENCE.
Only it's NOT.
By Attorney Mike Cyr