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Marijuana and Roadside Tests. Scientific or Anecdotal?

Marijuana and Roadside Tests. Scientific or Anecdotal?

Marijuana. The State needs a way to regulate it, but is treating it the same way as alcohol by creating an arbitrary limit and using the same roadside test the best way to go about it? There have been countless studies that show that people become affect by alcohol at 0.08, but can we say the same for 5ng of marijuana? DUI attorney Jonathan Rands and Dillon Honcoop discuss the different ways the roadside tests are designed to make you fail.


Episode Transcript

Intro
The Legal Docket with Dillon Honcoop on KGMI 790 and KGMI.com.

Dillon
Well, it looks like some of the pundits, and the news people, and the people who write articles, and get attention, they're finally starting to pay attention to something that we've been talking about for a long time here on The Legal Docket. Actually, you're here all morning.

Jonathan
All morning.

Dillon
Johnathan Rands ...

Jonathan
Not all morning.

Dillon
Well yeah.

Jonathan
An hour.

Dillon
They give us an hour to play with. Johnathan Rands, local DUI attorney joining us in-studio this morning. You're famous. You're afternoon show a couple days ago talking about the very issue ... Well, we have a lot more time now...

Jonathan
Absolutely.

Dillon
... To explain what this was all about. It was the AAA that came out and said, "Hey what's going on with the whole marijuana thing in those states that have now legal recreational marijuana?"

Jonathan
That was the study that spawned the phone call from this radio station actually. Interesting enough, that very day was the day that the study came out and started making the list serve that I belong to, I belong to a couple of them, DUI defense lawyers. It was just going crazy. Everybody was sharing the study, and commenting on it, and talking about it.

It's a very interesting study because the study as you're reading it, or the synopsis of it, you're sort of nodding your head up and down as you go along. As my legal writing teachers would tell you that's what you want, you want somebody to agree with you. Nod your head as your reading. What I have a problem with in that is the ending of it where they basically say we want to scrap all of this stuff and we just want to rely just on officer observations. They talk a little bit about the DRE program and the ARIDE program, and all of the things that are non-scientific. I think that they go down that road because there's a concept of oh you want to trust law enforcement and as much as you trust law enforcement, however, it's all based on opinions. It's not really based in science.

Dillon
Well, hold on a second here. Of course, what we're talking about is people who consume pot...

Jonathan
Yes.

Dillon
... What's the legal limit? We have one with alcohol, we've talked about that and where there are issues with that but where there's also some consistency with how that works. Marijuana really not any consistency at all and where they've set this at five nanograms of THC in your bloodstream, five nanograms per what?

Jonathan
Per 100 milliliters of...

Dillon
100 milliliters of blood.

Jonathan
Yeah.

Dillon
They've determined that to be the per se legal limit, basically marijuana's version of the .08 for drinking alcohol and not being okay to drive, or however we want to ... We've said all along on this program, even before I-502 made recreational marijuana legal in the state you said, "Look, this isn't consistent. .5 nanograms..."

Jonathan
Five actually.

Dillon
... five nanograms is basically like next to nothing."

Jonathan
I think the analogy I gave you was 2 tablespoons full of liquid that you dump into an Olympic-sized swimming pool.

Dillon
Would it make an effect?

Jonathan
Well, that's the equivalent of five nanograms in your blood in the body. Do you have any of those clips from the show? We should have prepared this is a little bit better...

Dillon
Yeah.

Jonathan
... From a couple years ago or...

Dillon
Might have to dig around. It was almost prophetic though at the time of these things that are now getting more mainstream attention where you said, "Look, they don't have a basis in science for that." That's essentially what's coming out with this AAA piece and this report that they have but, hold on a second. This is where I was going to test you a little bit here. He's getting a look of fear on his face right now. Jonathan Rands is with us by the way, here on The Legal Docket.

You're saying the DRE, Drug Recognition Expert Program, and ARIDE, what does that stand for again?

Jonathan
Advanced Roadside Impaired Detection Enforcement.

Dillon
Now, you've been through that program.

Jonathan
I have.

Dillon
You can't, though, go through the DRE program? That's only for law enforcement.

Jonathan
I can not go through the very program that law enforcement officers go through in the sense that they're trained by law enforcement officers. I can go through the NITCA approved course by a retired police officer who teaches the course.

Dillon
Is that basically the same thing though?

Jonathan
It is exactly the same thing, if not a little more rigorous in my opinion, because ... His name is Bob La Pierre. He's a retired Idaho state trooper. He's also a DRE himself, and when you are qualified or certified as a DRE under the NITCA standards, you are also qualified to administer and teach field sobriety tests. You do have to take another advanced course in the DRE to become a DRE teacher but, that is the only course that I have not done yet because it's a fairly intensive course.

Dillon
The reason I'm throwing this back at you is when you described how this stuff works to me, and we've done program ... We did, I think, a whole program once talking about that course that you went through and the rigorous training that you did for the ARIDE program. You're saying that wasn't scientific? I mean, there were quite a few pieces of that that sounded pretty scientific to me.

Jonathan
Well, when you shift from field sobriety testing for purposes of alcohol into drugs, that is where you lost the scientific aspect of it. I want to back up a moment. I have not take the DRE course because it's too challenging, it's too time-consuming at this particular point.

Dillon
Yeah, took a year off from your practice to-

Jonathan
Well, actually it's ... I believe it's eight days, it's eight full days and to walk away from my practice for eight days does pose some challenges.

Dillon
Yeah.

Jonathan
So, what I mean by it's not scientific ... So, this article is really critical of the legal limit and where does it come from in science and because everybody reacts to THC differently because THC is not in a situation like alcohol where a hit is the same amount of THC or how you ingest it or where you even buy it from because it's not regulated to the point of pharmaceutical medication where you know exactly how much you're getting and introducing into the body. It's those types of things that cause them to say, "Well, the limit is really arbitrary, or the limit is not supported by science as being one that at five nanograms everybody is affected by the THC in their system like alcohol." where those studies say at a .08% or .08, everybody begins to be affected. That's why we have that limit, is because there's thousands and thousands of studies out there that support that.

When you switch to trying to use the same tests that are validated for alcohol to allow an officer to make an arrest or no arrest decision. What I'm talking about here is standardized field sobriety testing. So, standardized field sobriety testing is the horizontal gaze nystagmus, the walk and turn test, and the one leg stand test. Those have been documented and put through a scientific process. Process — I'm not saying 'process' anymore now that I've naturalized.

Dillon
We're making him a full American now.

Jonathan
There's three studies over the course of several years and throughout the United States where they documented that there are certain performance cues that you will see when a person has consumed alcohol and those performance cues, when you collect so many of them, gives an officer a reasonable basis to believe that the person is affected by alcohol. If you read the studies as close as some, there's actually a ... They try and argue that there's a reasonable basis to believe that the person is above a .08 or above a .10.

Now, .10 is the standard at the time of these tests being validated and studied. Then, afterward, they said, "Oh, by the way, it relates to .08 as well." But nevertheless, the point is this: these three tests, the HGN, the walk and turn and the one leg stand, they have been validated and studied for alcohol. Now, these three tests are also the cornerstone of the ARIDE course and the DRE course because these tests are employed as part of the investigation to determine whether a person is under the influence or should be arrested for being under suspicion of under the influence of drugs.

But, what's missing from that is they've never been scrutinized with a segment of population or people that have been dosed with drugs to then, go through these tests and find out if you react the same way. Why? Well, one of the reasons is that it's illegal to do a lot of drug testing. Marijuana has been illegal for so long. So, there's a lot of ethical considerations, whereas alcohol, it was freely available as long as you consented all that other stuff. It was a lot easier to do.

But, what's happens is they've just quietly said, "By the way, if you exhibit these things in this type of program or in this type of test, we now have a reasonable basis to believe that you're under the influence of a drug." So, the ARIDE program is the next step. You have to have attended and have successfully completed the standardized field sobriety tests for the alcohol base. I'm just going to call them SFST's because it's three of them.

When you do the ARIDE course, first of all, you have to demonstrate proficiency in the SFST. So, you actually do a test. Are you doing these tests correctly? Okay, now you have a good understanding. So, then you spend ...The course is only 16 hours. It's two eight hour days basically, whereas the initial [crosstalk 00:10:17].

Dillon
That's even more than I could make it through. I mean, who are we kidding here?

Jonathan
Well, as the initial SFST course is 24 hours.

Dillon
Wow.

Jonathan
So, the ARIDE course, you first of all have to show proficiency in these. Then, they expand it with a couple of other tests, which actually have no basis in science whatsoever. So, you basically make sure that you do these tests correctly. These tests are dedicated to alcohol, and have been validated for alcohol but, we're not going to put them in a drug setting.

You learn how to administer something called the Romberg Test and that's a test where you instruct the person to basically put their feet together, hands at their side, tilt their head backward and estimate 30 seconds in their head without counting. When you are done, open-

Dillon
Without counting out loud?

Jonathan
Well, without counting. I think is one of the questions at the end of that is-

Dillon
Count in my head.

Jonathan
... how did you estimate 30 seconds? The person says, "I counted in my head." And, they said, "I told you not to count." So, it's just about counting. Then, when you're done estimating 30 seconds, you open your eyes, you bring your head back to the normal position and you say, "done" to the officer. Now, what they're looking for on that is a sway but, unlike the other tests, there is no standardized clue to say this is what you look for, and if you see these things it's a clue and you add up the clues and you get over a threshold and presto, you have PC to arrest.

Now, in this particular case, they tell you to look for a sway and they are looking for a slow or a fast internal clock. Meaning, if you stand there and you say to yourself, "One elephant, two elephant, three elephant, four elephant" and during this time that you're estimating 30 seconds, the officer is watching his watch. If you come up with anything three seconds less than 30 seconds, so if you get to 26 rather than 27, or if you get to 33 or 34, you now are assessed as having a slow internal clock or a-

Dillon
Three seconds is pretty tight. I know from being in the broadcast business, you do it a lot eventually you get used to 30 seconds. Like, if I have to go and say, "You have to read this commercial and it has to be 30 seconds." I have a pretty good sense of that but that's only come with years of doing it.

Jonathan
Right.

Dillon
Three seconds, that's a lot to ask, if you ask me.

Jonathan
And, if you're slow, then that's the first clue that you might have a CNS depressant onboard because your system is slowed down. If your-

Dillon
Like alcohol, like what else?

Jonathan
Lorazepam, any drug ending in pam. Any category of ... So, the drug categories are broken up into seven CNS depressants. Then, of course, there are stimulants, there are hallucinogens, there's marijuana. It's its own category. Narcotics, analgesics. But under the CNS depressants, anything that essentially calms you down. Xanax, Valium, all of those types of things, alcohol.

On the other hand, if you're really nervous and you're saying elephant or Mississippi really fast in your head or if you just counting one, two, three, four, five-

Dillon
I'm just going to say, you said elephant earlier, but I was going to say now that you're a US citizen, we say One Mississippi, Two Mississippi here, or it's just kind of a patriotic thing.

Jonathan
Okay.

Dillon
Just to let you know. But, you're saying if you go too fast they're like, "Uh, you're smoking crack."

Jonathan
Well, it starts to get the ball rolling because the whole purpose of the DRE or the ARIDE program is to not specifically say what drug they think you're under the influence of but to specifically say what category. Then, the next tests is one where it's called the finger to nose test. That again is ... But, before I leave this Romberg test, when you tilt your head backwards and have your feet together and your outside, you naturally lose your balance. When I was framing houses, one of the things that they teach you or you learn on the job is when you're standing on a wall and you're putting the roof together, never look up because you lose your balance and if there's clouds in the sky, that makes it even worse.

Dillon
Mm-hmm (affirmative).

Jonathan
But, you just naturally have a sway because that's what your body does but, it becomes used against you. Let's go back to my original advice, say no thank you to all the stuff on the side of the road because don't forget, you're doing this on the side of the road. This ARIDE course is designed to be roadside sobriety testing expanded if you will.

The other test that you can do is called the finger to nose test. That's an interesting one where, again, feet together, hands at your side. You always start from this position of the narrowest point of support possible. This is one where the officer will tell you to, when he instructs you or when he says go, you bring the tip of your finger ... and you do it in a very specific arch. You lift your arm up from the side, bring it around and you touch the tip of your nose with the tip of your finger. They get this picky: not the pad of your finger, you can't touch the pad of your finger to your nose. You have to touch the tip of your finger to your nose.

Dillon
Oh, my God.

Jonathan
You have to do that a series of times and what the officer is looking for is whether you can find the tip of your nose with your head back, eyes closed, on the side of the road, and whether you touch with the tip of your finger. I see you leaning back a couple of times as we're in the studio here but, very different scenario. Again, whether you touch the tip of your nose with the tip of your finger or your pad, and you do it a series of, I believe, eight times. Four times per side, alternating.

But, there are no standard criteria for what's a pass or what's a fail. It's just simply, "Oh, the person touched their upper lip. Or, the person poked themselves in the eye." So, you have these series of ... Then, there's always an interview portion of it. So, they learn the ... They come to a conclusion about being under the influence of something or a category by these tests, by process of elimination but, there's also an interesting interview that, if a person chooses to answer the questions, that culminates in their final opinion.

So, they usually will say, "I believe the person was under the influence of marijuana. The thing that causes me to believe this is I saw this, I saw this, and I saw this." But you also, in that report, will see the person admit to previously ingesting whatever their final opinion happens to be. So, it's a way of, I guess, eliminating information because you're eliminating, "Well, I don't see big pupils. I don't see internal rapid ... rapid internal clock. What I do see is slower stuff." It's a process of elimination and of course-

Dillon
So, it sounds scientific but you're saying it's actually quasi-scientific because it's still not hard proof?

Jonathan
I don't think it's scientific at all because not a single test has ever been scrutinized or validated or reviewed for what effect or how a person would act with a particular drug in the system that they're coming up with.

Dillon
We got to take a quick timeout by the way. Jonathan Rands, our guest, in-studio this morning for the full hour. Local DUI attorney talking about, is the "legal limit", the version of the alcohol .08 for marijuana, that five nanograms ... Is that even scientific at all if they're going to test you? I want to bounce a local court case that just wrapped up recently off of you in regard to some of this testing stuff as well. When we come back, here on The Legal Docket on KGMI News Talk 790.

Intro
The Legal Docket with Dillon Honcoop. Breaking news, stimulating talk. This is KGMI Bellingham and KGMI.com. The Legal Docket with Dillon Honcoop on KGMI 790 and KGMI.com.

Dillon
So, we've been talking about how the "legal limit" for someone consuming marijuana, and then, whether or not they're "good to drive". That's been said, it's this number five nanograms of THC. THC is the drug. Basically, the equivalent of alcohol. Not that it does the same thing but, for comparison's sake, as far as tests. You could say marijuana is that ... Marijuana isn't the drug. Marijuana is like whiskey, right? The drug is alcohol that's in whiskey. THC is the drug that's in marijuana. Am I doing this right, Jonathan?

Jonathan
THC is what causes you to-

Dillon
What is it?

Jonathan
.. feel what you feel.

Dillon
Tetra Hydro Cannabinoids-

Jonathan
Don't even try.

Dillon
... or something like that. I'm just making that up.

Jonathan
It's THC.

Dillon
THC.

Jonathan
Yes.

Dillon
It's the drug in marijuana. The question is, when is someone not good to drive? This new report out from AAA, and we talked about it earlier in the week here on KGMI because it was in the news, they're saying, "Look, this really isn't scientific, how this works, at all." You've been saying that Jonathan, on this show for a long time. I do want to ask you ... You've been talking a lot about this sobriety testing and really, how they do it and how it isn't scientific. Not that it's entirely, absolutely invalid because it sounds like you're saying you can at least get some idea if something is maybe, possibly, going on with somebody but, as far as evidence in court of a specific amount of intoxication that a person has, sounds like there are a lot of problems with that.

Jonathan
Well, that is the problem because it always comes down to the belief or the opinion of the officer, that I believe this person had this drug onboard and it affected their ability to operate a motor vehicle and that's the $65,000 question. Did it affect the ability to drive it? That's what that study that we've been talking about, sort of in the background, says, "Listen, there is no limit where everybody is affected. So, why do we have five nanograms, and why don't we ... Or, we should be relying upon an officer's observations." It's the officer's observations that I disagree with in terms of the reliability of the study.

Dillon
This specific issue came up in a local tragedy. The court case just wrapped up. I want to talk about that but we do have the run the news. This is The Legal Docket here on KGMI News Talk 790. Dillon Honcoop with you, along with Jonathan Rands, local DUI attorney. Jonathan's practice just moved basically diagonally across the intersection right?

Jonathan
Yes, longest move in history.

Dillon
In Fair Haven, if you want to reach his office it still has the same phone number, even though they're basically right across the street from where they used to be. That is 360-306-8136. His website, and that's another thing I suggest you check out, is JRandsLaw.com. Rands is spelled, R-A-N-D-S. Jonathan's last name. So, just the letter J, RandsLaw.com. Check that out and again, 360-306-8136 to reach his offices in Fair Haven. More right after the news here on KGMI News Talk 790.

Intro
The Legal Docket with Dillon Honcoop. Breaking news, stimulating talk: this is KGMI Bellingh , and KGMI.com. The Legal Docket with Dillon Honcoop on KGMI 790 and KGMI.com.

Dillon
So, is testing for whether or not someone is under the influence of marijuana, is that scientific at all? A new report out that we've been talking about this morning here on The Legal Docket, suggest that no, there really isn't a lot of scientific basis at all for testing people right now. Are they good to drive after they've been consuming marijuana? Of course, this is a big question here in Washington now that marijuana is legal to consume as a recreational drug. I think the AAA study, I remember they had a graphic with it that had a few different states and the District of Columbia where this is ... They're talking about legalization in other parts of the country. It's a growing question. How do we know if somebody should be behind the wheel or not?

Jonathan Rands, local DUI attorney is with us here on the program. Of course, you've been following this way before marijuana was legalized this way here in Washington State and even before that happened you said, "Look, there have been problems with this testing." I mean, you've been saying this all along, haven't you?

Jonathan
I have. One of the questions that comes to mind is, a little bit off topic, is why are we so concerned about the legalization of, or the use of this particular drug, just because it's become legalized? We've never expressed this concern as a nation about all the other legal drugs.

Dillon
Yeah.

Jonathan
I mean, you could make a case by saying heroine, in the form of a painkiller, which has been legal by prescription forever, and we've never worried about that because it's not the same stigma as "marijuana".

Dillon
Yeah, what is the legal limit if you consume oxycodone?

Jonathan
Right.

Dillon
If you're having oxy cotton or Percocet or something because you had your wisdom teeth out or you had a surgery done, there's no legal limit for that, no question for it.

Jonathan
So, why do we now, or why is there ... I can tell you why or where the legal limit came from and I told you where it came from when I-502 was making its push. It came from what I like to call, it's not really shady but, it was a backroom deal. Basically, the powers that be, that allowed the initiative to go forward, said, "We're not going to support this if we don't deal with the fact that we need a legal limit on the driving side of things."

So, the number was really plucked out of thin air. It really ... The momentum for the number started in Colorado, which is where the first legalization—

Dillon
They beat us to the punch by a year, didn't they?

Jonathan
Yeah. They had to deal with the same problem and there was some discussion there that it was going to be two nanograms and ultimately it became five. While I was watching the initiative grow momentum listening to and talking with Alison Holcomb a little bit about it, this number just appeared. At that time, that's when I started questioning and saying to you ... Listen, there are five studies that have been done and they've been done mostly in Australia because different countries, and also in the Netherlands was marijuana was legal already and they were able to do some studies. The scientific literature seems to indicate that you first become affected depend ... not universally but from the subjects that they had and the materials or the THC that they were using because again, it's not regulated. Begins about 13 nanograms.

Dillon
More than double. Almost triple where this arbitrary line has been set.

Jonathan
Of course, that is dictated by the THC percentage and how it's grown, how you smoke it. Meaning, there are different ways of smoking it in terms of how ... I mean, you can ingest marijuana into a gas mask and re-breath it is one thing that they call it because that dictates how much of whatever concentration you're smoking your body will actually get and then, start to absorb.

So, it's highly variable but, under the ideal circumstances that they had, it was 13 nanograms. Then, not too long ago, there was that investigative report on Kryo, I think, where they actually watched people smoke marijuana and they put them through a driving test. One of them was a medical marijuana patient. Guess what? Because she was so used to marijuana, just like when you get used to any sort of drug that your body uses regularly, her tolerance was in the 25's before she-

Dillon
Before it even started to even affect her driving at all?

Jonathan
Yes, if memory serves me correctly on that. There was some novice, or what they call virgin users, who were completely off their rocker at six. So, it's one of these things where, yes, that study's absolutely right. Everybody is affected differently but, it's so complicated because you can't just say, "this is the limit when there isn't any regulation like there is for alcohol in terms of how it's dispensed and how your body adapts to it."

Dillon
You explain how some of this testing is done because, of course, there's the blood testing. We've talked about blood testing with alcohol too, as that grows in popularity. Tox tests come back in big court cases for people's blood for different kind of substances is something that you hear about but, there are also these tests that are much more immediate. We think of alcohol, we think blow and go sorts of things. We've talked about that in regards to THC and marijuana as well. That they're working on that, right?

Jonathan
Yeah. I think, was it Wazoo? We talked about a breathalyzer that was going to be able to detect THC in the breath. I think it was a year away. We talked a couple of months ago about that, yeah.

Dillon
We'll see what happens with that but, in the meantime, it's really up to, as you've been saying, the observations of a law enforcement officer.

Jonathan
Mm-hmm (affirmative).

Dillon
A law enforcement officer trained to do these kinds of evaluations.

Jonathan
Correct.

Dillon
Those ... You've been through the same training that some of those folks have been through.

Jonathan
Yes.

Dillon
You know how that goes. So, we're talking about all that, I was thinking at the same time about this case of William Klein.

Jonathan
Mm-hmm (affirmative).

Dillon
The man who fell asleep at the wheel while he was driving down Smith Road last year and hit those four Windward High School students.

Jonathan
Mm-hmm (affirmative).

Dillon
Two of them died and two of them were seriously hurt. The question was, and what we were told right away was, "Was he under the influence of marijuana?" And, the law enforcement at that time said yes he was. Was that based off of these tests that you just described?

Jonathan
I don't believe he did roadside sobriety tests.

Dillon
I know he was checked out by a drug recognition expert, a DRE.

Jonathan
Okay. Right, and so a DRE exam, although it incorporates the roadside sobriety tests, generally doesn't happen on the roadside. You're generally transported to a controlled room because you need controlled temperature, you need a lighting test where lights are on and off and things of that nature. I'll admit that while that trial was going on, I was in trial myself out of county and so I wasn't there or I wasn't paying attention to it as close as, say yourself or the average reader was.

But, in that scenario, yes he ... I remember now reading that he did go through a DRE exam, which is a much longer exam than the one that I just told you about, although it incorporates all of those tests that we talked about. It also incorporates some medical aspects to it. There is a pupil test, in terms of just looking at a person's pupils. They use a pupillometer, which is a card that has black spots on it and they're measured in millimeters and you hold it up next to the person's eyes to see if they're blown, meaning big and wide, or if they're pinpoint because that'll indicate the possibility that something's on board.

There's also a rebound test because your pupils don't rebound normally when you have certain substances on board. So, that requires, basically, turning the lights off, waiting a moment, turning the lights on and seeing what your rebound dilation is like. Something called hypos, which is not a grateful dead song but ultimately is, it's watching your pupil expand and contract to light and there are studies that they are led ... they being the officers or the trooper, that are led to believe that that indicates a certain category. Again ...

There's a blood pressure test, meaning you sit, you have your blood pressure taken at three different times because you're under stress, one, you're starting to normalize and things of that. There's a muscle rigidity test, in terms of whether you've got good muscle tone or you've got ... One of the boxes to check is called flaccid muscle, meaning certain, again, certain drugs can affect a person's muscle tone.

But all of these things are really interpretations that lead to an opinion that are almost always driven by, for lack of a better word, an agenda. I think this person is under the influence of this category of drug and I believe the category, in this Mr. Klein's case, was marijuana, or THC. I'll bet, I haven't seen the police report, but I bet Mr. [Brodski 00:30:44] received the police report from a DRE and in there, there was the question, "Have you ever smoked marijuana?" Because that was a big issue in terms of-

Dillon
I remember that being from the get-go. They said, "Well, he admitted to consuming marijuana before this crash." Then, later we found out, well he had consumed marijuana the day before, not right before he got behind the wheel. That's like asking somebody, "Well, did you have alcohol, did you have a drink before you got behind ..." "Well, yes I did. It was yesterday." Well, of course, we wouldn't worry about that.

Jonathan
You know, Mr. Brodski's comments after the trial where he, I think his description of, let's call it an agenda, was fairly accurate in terms of the state patrol and the investigating officers firmly believe from the moment of contact, or from the moment that they'd made their decision that they thought marijuana was involved, that it progressed throughout the case despite the negative blood results for THC.

I think you even interviewed Trooper Frances—

Dillon
Yeah.

Jonathan
... after the blood results came out.

Dillon
I said, "What's the deal? I mean, you guy ..." That's where I'm pointing to because I think this demonstrates in a real world, obviously a very difficult situation, what you're saying. That those tests don't necessarily work. They aren't scientific. The one test in this whole Klein case that was scientific was that toxicology test of his blood. That came back and said zero. There wasn't any noticeable, known, THC, active marijuana, intoxicating chemical in his bloodstream.

Jonathan
I believe there was a belief by law enforcement that because of the delay between the actual time of the accident and the needle going into his arm, there was a steadfast belief that, "Well, at the time that we were interacting with him, he had it in his system or he was burning it off and so, by the time we got him in front of a phlebotomist to draw his blood, there wasn't anything left in his blood test."

Dillon
The equivalent of someone who's arrested for DUI hoping it takes them three hours to get back to the station before they have to blow and then, they'll have burned off their beer buzz or whatever.

Jonathan
Right, exactly. But, that doesn't really make sense if you believe Mr. Klein that he had smoked but he hadn't smoked it that day. The toxicology results totally make sense in the sense that they show no active THC but they show metabolites in his blood, which are, as we've talked about, are simply the fingerprints of having used marijuana but it's not an active substance that affects your ability to do anything, let alone drive a motor vehicle.

So, I mean, that was a very hard case to wrap your head around in terms of, why are we starting out like this? I remember when we talked about it as well. I said, "Hold your judgment and the reporting that marijuana is involved but, let's not try him and find him guilty-"

Dillon
I think you were on my morning show saying exactly that in the days right after this all happened.

Jonathan
That was ... That opinion that I had, or cautioning, was just general caution, but I'd also heard that he had denied using marijuana that day and in speaking with Mr. Brodski about that. I mean, he confirmed that at the scene that it was a denial, and he seemed to be a very believable person. Low and behold, what do we have? We've got an alternate explanation.

What I find interesting about this case, one of a thousand things I find interesting is there's a lot of education going around right now about drowsy driving as well. If you listen carefully to a lot of the public service announcements, they're not as prevalent as drinking and driving or not as prevalent as the drug driving that we're starting to see now but, there is a lot of talk about the dangers of drowsy driving. It's not a crime but, at the same time, it's a concern. It was ... The jury found, I think, that that's exactly what was going on in this particular case.

Dillon
That's what was going on. He fell asleep at the wheel. It didn't have to do with drugs, it had to do with sleep and a sleep disorder that a lot of people have that he also had. That's what was going on there.

Jonathan
Right. So, to make our minds because something terrible happened or a crash happened or both of those things happened, and to make up your mind and then be, essentially paint yourself in a corner, I think, is what can happen in these cases. "Oh no, I'm trained, I'm using this training. The training tells me this and there's no room for error." Using these types of tests that aren't validated or aren't scientific in nature, that then fit with what we believe we're seeing, not because of any other reason than we see it so much.

I mean, hats off to law enforcement. They do a really hard job. They're first responders on scene. They see a lot of terrible things. I think that when you're in that position, you walk up to a scene and you see something that fits with what you're expecting. Just another accident involving drugs or alcohol. I mean, you can't help but go into it in that frame of mind when you've seen it once before.

Dillon
Well, that's their job to be looking for any smoking gun, if you will, of anything illegal going on here.

Jonathan
But then, when you do a deeper investigation or the second layer of the investigation comes out and it shows that these things aren't at play, do you steadfast, you believe it like Trooper Frances said? "Well, I still believe he had nothing in his system. I don't believe he had nothing in his system and even if it says no, I believe he was under the influence." Or, do you say, "Hey, with the evidence that I had at that particular time, that was my belief but, I guess I was wrong." But, there's not a lot of room for that in law enforcement. There's not a lot of room for that in the criminal justice system either.

Dillon
I was going to say, and that's where I have big questions about, why was this case prosecuted the way it was and to the extent that it was?

Jonathan
Well, I mean, I think the only answer to that is those that we read in the newspaper, in terms of Mr. [McCecrin 00:36:44] saying, "I believe that I had a duty to bring this to a jury, to let the jury decide." Or, the voice of the community, I think were the words that he had used, which, I don't know. You can agree with that or you can disagree with that. I've got my own personal opinions about it but, I'm not going to broadcast them over the airways.

Dillon
Yeah.

Jonathan
But there are certainly more ways, different ways, to handle something, and he chose to go that route. I'm curious to what effect, if any, that's going to have on like cases in the future, meaning the jury has spoken, and as a result we now know what the community voice is in this particular case and will that have an effect on their decisions to move forward in similar types of cases or other cases that may not be as easy to prove. I mean, that was a very difficult case to prove under the per se prong of the statute so, I'm watching and listening to see if the case has any effect there.

Dillon
Jonathan Rands' our guest this hour on The Legal Docket. 360-306-8136 is the phone number. You need to call if you've got questions on any of this, you just want to get ahold of Jonathan and say, "Hey." Maybe you've got a case of your own that you need some help with. 360-306-8136. We've got to take a quick timeout. I'll hit you up with those numbers one more time though before we're through with the hour here on the Legal Docket with local DUI attorney Jonathan Rands here on KGMI News Talk 790.

Intro
The Legal Docket with Dillon Honcoop. Breaking news, stimulating talk. This is KGMI Bellingham and KGMI.com. The Legal Docket with Dillon Honcoop on KGMI 790 and KGMI.com.

Dillon
We're back. We continue with just a couple of minutes left with Jonathan Rands here on The Legal Docket. We've been talking about ... Well, first we talked about marijuana. We talked about how does someone who is consuming marijuana know if they should be behind the wheel or not? How does someone, maybe, gets caught behind the wheel under the influence of marijuana ... Well, how can you say they were? There is a legal limit but there are problems with it.

The AAA recently releasing this report that we're referencing saying the tests, the reasons why, the legal limit itself for marijuana and it's intoxicating drug, which is called THC. There are problems with whether that's scientific at all and our guest Jonathan Rands has been saying this for a long time.

We talked about a really tough case, that case of William Klein and the teenagers who were hurt and the two, of course, that were killed as well in that crash last year. Tough case, but was it about marijuana or was it about someone falling asleep at the wheel? That was the big question. Jury said, when it was all said and done here recently, said, "No, this man fell asleep at the wheel." What does that ... you mentioned that just before we went to break. This is going to be a case that's going to be looked at. I believe the defense attorney, Michael Brodsky, who's been on this program in the past as well, said he believes this will set precedent. What? Are people paying attention here? What are they going to do with this result?

Jonathan
You know what I think we might see as a result of this is, it certainly heightens the awareness of drowsy driving. I think it takes something that is fairly well known among the driving, the professional driving population. My father was a truck driver for my entire life and so, I mean, there's a segment of the population that certainly knows, hey, you've got effects.

I think there's even some scientific literature out there that says that a person who is sleep deprived at this particular level is equivalent to somebody, and I think it starts at about a .04. Your judgment's impacted, your reflexes are affected. So, one of the things that I think it'll do is raise the bar and we might see some sort of new criminal cope ability statute start making its way through.

Dillon
For drowsy driving?

Jonathan
For drowsy driving.

Dillon
To say your negligent or whatever the term might be, for having gotten behind the wheel with as drowsy as you were, you should have known better.

Jonathan
Right. Of course, we're going to have significant problems with that. I mean, what's the drowsy driving limit?

Dillon
Yeah, what's the legal limit?

Jonathan
What's the limit on how little sleep you've had?

Dillon
But, we're basically out of time here but, to throw back to something we touched on earlier, prescription drugs. There's no legal limit there.

Jonathan
Mm-hmm (negative).

Dillon
That's also up to your personal judgment and you could be charged criminally if you're way high on pain pills.

Jonathan
Mm-hmm (affirmative). It all comes down to whether your ability to operate-

Dillon
With driving under the influence.

Jonathan
... is affected by alcohol, marijuana, or whatever drug. Or, we might see, I don't know that it'll be this drastic, but we might see sort of a subcategory of sleep deprivation. I'm not sure.

Dillon
That'll be interesting.

Jonathan
It's certainly a springboard and we always see these types of reactions from tragedies, unfortunately.

Dillon
Jonathan Rands, local DUI attorney. Just moved his office across the street from where he had been. Had been in the olds to know what he was building. He's the across the street in that fancy new brick building there in Fair Haven. What is it? 12th and ...

Jonathan
Still 12th and Old Fair Haven Parkway [crosstalk].

Dillon
On the other side of it. You can't miss it. Cool sign up there when you're driving down 12th, is it?

Jonathan
Yeah.

Dillon
From 12th headed south, I'm thinking.

Jonathan
Yep, towards Chuckanut.

Dillon
You can't miss it. Jonathan Rands up on the building there. 360-306-8136 is his phone number. I suggest you take that down. If you have any questions at all or maybe you even have a situation of your own that you need some advice, or some help with, some guidance on, 360-306-8136. If you're just curious, maybe you don't want to make a phone call, you want to check some things out online, do some research. Check out JRandsLaw.com. Tons of links there. Jonathan's on blogs and thoughts and perspectives on a lot of different issues relating to DUI defense. JRandsLaw.com, the website. Check it out.

Jonathan, thanks for being here. Thanks for hanging out for the full hour.

Jonathan
Thanks for having me and I'll see you memorial weekend.

Dillon
Sounds good.

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The Legal Docket with Dillon Honcoop.


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