A Monroe County circuit court judge said Wednesday he lacked the authority to overrule a new state policy by granting a drunken driving suspect a temporary driver license, but urged attorneys to quickly pursue a greater “due process” issue with the policy.

Judge David Audlin told defense attorney Sam Kaufman that state law did not empower him to temporarily grant one of his clients charged with driving under the influence a “hardship” driver license to drive to work, school or other necessary tasks.

Since July 1, if a law enforcement officer does not show up for a defendant’s license hearing, the state Department of Highway Safety and Motor Vehicles (DMV) tells him or her to take their case to court instead of automatically granting a temporary permit, as was the previous policy for decades.

Kaufman contends that denying his client a hearing in which law enforcement must present evidence in his case violates the client’s constitutional right to due process. He filed an emergency motion last week challenging the policy on behalf of two clients, Louis Licitra of Key West and Jenny Tyler-Marquis of Casselberry, both of whom were arrested in Key West.

The first step was asking Audlin for emergency relief on Licitra’s behalf, but Audlin noted that law did not give him the authority to stop or suspend DMV proceedings.

“Basically, I was asking for [the court] to allow my client to keep his driver license pending his DUI legal case,” Kaufman said. “I was asking for temporary relief today, but the larger issue is going to heard next month.”

Kaufman and other defense attorneys, notably Miami lawyer Richard Hersch, are challenging the state and want the courts to overturn the policy change.

DMV attorney Damaris Reynolds wrote in her response to Kaufman’s motion that the state is trying to keep drivers safe.

“It is the expressed intent of the Florida Legislature that persons … who pose a danger to the public safety should not be permitted to drive during their appeal,” Reynolds wrote. “The purpose and intent of the administrative suspension statute is to protect the public who use the state’s roads and highways.”

She further noted that “driving is a privilege, not a right,” and that revoking a driver license in some cases is a “legitimate legislative goal.”

Nonetheless, Audlin said “it appears there is merit” to Kaufman’s due process argument, and he placed attorneys on a “faster briefing schedule” in an effort to have the larger issue heard by Sept. 29.

His findings were startling.

After consuming almost any type of bread product — white loaf bread, donuts, pretzels, pastries, etc. — Price consistently registered blood-alcohol readings on the machine. These levels were commonly around .03%, but rose as high as .05% (enough, along with a drink or two, to reach illegal levels). Further, the Intoxilyzer’s slope detector (an electrical circuit designed to detect alcohol from the mouth rather than from the lungs) failed to indicate the presence of any “mouth alcohol”. He reported this in an article entitled “Intoxilyzer: A Bread Testing Device?”, 15(4)Drinking/Driving Law Letter 52.

Reacting to the use of this article by defense attorneys in their state, the Washington State Toxicology Laboratory conducted their own studies to refute the findings — this time with the machine used in Washington, a DataMaster. Unfortunately, their research only confimed Price’s experience.

As reported in Logan and Distefano, “Ethanol Content of Various Foods and Soft Drinks and their Potential for Interference with a Breath-Alcohol Test”, 22 Journal of Analytical Toxicology 18 (1998), a variety of breads and soft drinks were tested and found to contain no alcohol. Alcohol-free subjects then ingested these products and provided breath samples into a DataMaster. The law enforcement researchers’ conclusions:

We found that, particularly at low concentrations but as high as 0.046g/210L, mouth alcohol rather than expiratory breath alcohol may be reported as apparent true breath alcohol…

In other words, alcohol-free subjects who consumed bread or soft drinks were causing the machines to read up to .05% blood alcohol concentrations (readings are rounded off to closest 1/100th percentile). Furthermore, the slope detection system failed to screen the effects of mouth alcohol from that of alcohol coming from the lungs:

It is evident from these results that the slope detector feature was unable to distinguish mouth-alcohol concentrations at these very low levels.

What caused bread to register on breath machines as alcohol? The theory of the state lab’s experts:

Most baked products with listed contents indicating they contained yeast did in fact have some alcohol present. Alcohol is produced by the fermentation process in yeasts by their action on simple sugars used in preparing the dough….Although most of the alcohol in the dough is lost during the baking process, some is evidently retained in the matrix of the bread…

Parenthetically, there exists additional scientific literature reporting intoxication in animals eating dough and sourdough. Suter, “Presumed Ethanol Intoxication in Sheep Dogs Fed Uncooked Pizza Dough”, 69(1) Australian Veterinary Journal 20 (1990); Thrall, et al., “Ethanol Toxicosis Secondary to Sourdough Ingestion in a Dog”, 184(12) Journal of American Veterinary Medical Association 1513 (1984).

The effects of bread on breathalyzers is not just an interesting anecdote. The significance of these findings should be apparent. First, bread dough tends to stick between the teeth and remain there for extended periods of time, later to be breathed into a breathalyzer; it also absorbs alcohol while between the teeth. Second, although it is not illegal to drive with a .04% blood alcohol level,adding one or two drinks to the bread reading could raise that above the illegal .08% level.

MIAMI BEACH — Voters could cast ballots for Mary Jane come November should a budding effort to decriminalize marijuana possession in the city gain traction.

In front of City Hall on Wednesday evening, the Committee for Sensible Marijuana Policy announced a drive to gather signatures in support of a proposed amendment that would make “personal” possession of marijuana in Miami Beach a civil code violation punishable by a mere fine.

“We’re empowering local government to deal with this differently,” said Ford Banister, the group’s chairman.

Banister hopes to put the proposal before the city’s voters in November.

But already questions have been raised about the legality of the initiative, given state and federal authority over drug laws.

Florida law says possession of less than 20 grams of pot is a misdemeanor punishable by up to a year in jail and a $1,000 fine.

Activists like Banister argue that criminal charges for personal marijuana possession are excessive and a burden on police, prosecutors and jails. Banister’s proposal would punish possession of less than 20 grams with a city-levied fine of $100.

Norman Kent, the attorney who drafted the proposal, said police would have the choice to issue a city code citation or charge a subject under state law.

Not surprisingly, the movement has its critics.

Miami Beach Mayor Matti Herrera Bower said she would not support such a change in the city’s code, and questioned whether marijuana laws could be changed in Miami Beach alone.

And Bob Jarvis, a constitutional law professor at Nova Southeastern University, said he was “stunned” and doubted the viability of the proposal.

“Even if it got enough votes to pass, I would assume at some point in that timeline federal officials would say, ‘What the heck are you doing here?’” he said.

Banister scoffed at any skepticism and said, “We are prepared to defend the amendment without question.”

Prosecutors and voters have weakened laws against personal marijuana possession in cities and towns such as Seattle and Breckenridge, Colo., and the Committee for Sensible Marijuana Policy was successful with a similar 2008 ballot initiative in Massachusetts.

However, decriminalization proposals have never made it to a vote in Florida. Banister’s group has spent months gathering petitions in Orlando, Jacksonville Beach and Atlantic Beach without success.

Miami Beach’s charter states that 10 percent of its 42,527 registered voters must support a ballot initiative for it to reach a vote. That would have to happen before Aug. 20 for the amendment to go before voters in the Nov. 2 election, according to a spokeswoman with the Miami-Dade Elections Department.

Banister said the group had about 80 signatures since starting June 11.

The group may have better luck in Miami Beach than in other Florida cities. The film studio rakontur, which created the “Cocaine Cowboys” documentaries, has backed the effort financially. Wednesday’s press conference was advertised on rakontur.com, which once offered visitors fake Miami Beach parking passes.

“Cocaine Cowboys” director Billy Corben said he reached out to Banister to bring the decriminalization initiative to Miami Beach in part because of its reputation as a progressive city.

“Are the people of Miami Beach ready for a sensible marijuana policy?” Corben said. “We’re just saying, let’s find out.”

Don’t believe us? Try this story on:

The Scottish Daily Record is reporting that a man was arrested for drunk driving while operating a toy Barbie car.

Paul Hutton, a 40-year-old resident of Clacton-on-Sea in Essex, was tearing down the road in a child’s motorized Barbie car. He was going the vehicle’s top speed of 4 miles per hour when police stopped him along the road at night.

Police administered a Breathalyzer test and booked Hutton for driving under the influence of alcohol. His blood-alcohol content was double the legal limit.

For his offense, Hutton was banned from driving a real car for three years. After the hearing where he learned of his fate, Hutton admitted that he was “a complete twit” for earning himself the driving ban.

“I was very surprised to get done for drink-driving,” he continued. “It is designed for three-to five-year-olds.”

Hutton had found the little pink electric car ten years previous, and had begun to customize it with his son only a few months ago, adding larger wheels to it. Still, he was candid that it was not the ideal vehicle for a full-sized adult.

“You have to be a contortionist to get in and then you can’t get out,” he said of the pint-sized pink ride. He had to drive it with his knees under his chin, and it moved more slowly than a mobility scooter, according to the article.

According to Hutton, he’d been drinking as he worked on the vehicle, and had not realized how much he’d had to drink.

“When it was done,” he said, “I couldn’t resist the temptation to take it out. I wanted to show my friend.”

Hutton had actually ignored a warning from the police. They told him not to drive the vehicle, but he went against their advice and drove it away from the scene, very slowly.

“I knew it was daft, but I didn’t realize it was a criminal thing to do,” he said.

His three year ban from driving was brought down because he had previously been convicted of DUI. Chairman of the bench in the case said “I’ve never seen the like of it in 15 years on the bench.

• Family members or friends. Someone close to you may know of a criminal defense lawyer or may have time to look for one.

• Nolo’s Lawyer Directory. Nolo offers a unique lawyer directory that provides a comprehensive profile for each attorney with information that will help you select the right attorney. They tell you about the lawyer’s experience, education, and fees. Every attorney has taken a pledge to communicate regularly with you, provide an estimate of the time and cost involved, and provide you with a clear, fair, written agreement that spells out how they will handle your legal matter and fees. For more information, see http://www.nolo.com.

• AVVO Lawyer Ratings. Avvo rates and profiles every attorney, so that people can choose the right attorney. Lawyer profiles contain helpful information including a lawyer’s experience, areas of practice, disciplinary history, and ratings from clients. Profile data comes from many sources, including state courts and bar associations, lawyer websites, and information provided by lawyers, see http://www.avvo.com

• Referral services. Some lawyer referral services carefully screen attorneys and list only those attorneys with particular qualifications and a certain amount of past experience, while other services will list any attorney in good standing with the state bar who maintains liability insurance.
• Courthouses. You can visit a local courthouse and sit through a few criminal hearings. If a particular lawyer impresses you, ask for her card after the hearing is over, and then call for an appointment.
What is a private lawyer likely to cost?

It’s impossible to give a definitive answer. Attorneys set their own fees, which vary according to a number of factors:

• The complexity of a case. Most attorneys charge more for felonies than for misdemeanors because felonies carry greater penalties and are likely to involve more work for the attorney.
• The attorney’s experience. Generally, less-experienced attorneys set lower fees than their more-experienced colleagues.
• Geography. Just as gasoline and butter cost more in some parts of the country than others, so do lawyers. An experienced criminal defense attorney in South Florida will charge much more than one in South Dakota.

In South Florida, a defendant charged with a misdemeanor or DUI should not be surprised by a legal fee in the neighborhood of $2,500-$5,000; an attorney may want $15,000-$25,000 in a felony case in state court and double that in federal court. Most criminal defense attorneys want all or a substantial portion of the fee paid up front, especially in federal court cases. Contingency fees (where the lawyer gets paid only if he wins the case) are not allowed in criminal cases.
Can I change lawyers if I’m unhappy with the one representing me?
Requests for a change of public defender or court-appointed lawyer are rarely granted. A defendant would have to prove that the representation is truly incompetent.
On the other hand, defendants who hire their own attorneys have the right to fire them at any time, without court approval. A defendant doesn’t have to show “good cause” or justify the firing. After firing a lawyer, a defendant can hire another lawyer or perhaps even represent herself. Of course, changing lawyers will probably be costly. In addition to paying the new lawyer, the defendant will have to pay the original lawyer whatever portion of the fee the original lawyer has earned.

*
* 151Share

I talk a lot about what legal education doesn’t prepare you for. You know what it does prepare you for? Any future interaction with police officers. By the time I finished 1L year, I knew the golden rule for dealing with officers of the law: keep your mouth shut. Knowing the law and knowing your rights helps. But whenever you deal with a cop, you should say as little as possible.

Look, as a black man that lesson probably increases my life expectancy. But every person with legal training can benefit from simplicity of silence when cops are around. If I was the victim of a home break-in and called the cops myself, I wouldn’t say anything to them when they showed up. I’d just kind of point at things and shake my head.

You don’t even have to be a practicing lawyer to reap the benefit of these skills. On his blog, Concurrent Sentences (gavel bang: Volokh Conspiracy), a Michigan area law student explains how he masterfully handled a recent traffic stop. It’s a skill all lawyers should have…

You should read the full account between the law student and the traffic cop here. But I want to show you a couple of excellent excerpts:

I got pulled over again on Friday evening. In the same exact spot I was pulled over a couple weeks ago. And again, no ticket and no warning because the stop was an illegal stop and detention. My interaction with the Asshole Police Officer (APO) went something like this:

APO: Good afternoon
ME: [silent]
APO: Good afternoon sir
ME: [silent]
APO: GOOD AFTERNOON SIR [raising voice]
ME: [silent]
APO: Do you know why I pulled you over?
ME: No
APO: I pulled you over because you have window tint on your front side windows
ME: [Silent]
APO: You ever been pulled over for this before?
ME: No, my car is registered in Colorado.
APO: In Michigan you are not allowed to have window tint on your front side windows.
ME: Officer, I am not trying to argue with you, but I am very familiar with the statute relating to window tint in Michigan and I know that the statute specifically exempts vehicles that are not registered in Michigan.

[I am VERY familiar with it, and I keep a copy of it in my car. MCL 257.709 (3)(d) "this section shall not apply to a vehicle registered in another state . . ." My car is registered in Colorado and has clearly visible Colorado plates.]

At this point, all the kid really needed to do was remind the officer of the law, and answer direct questions with simple yes or no answers. Pretty much, that’s what the guy did:

ME: Officer, if you think it is illegal write me a ticket and we’ll have a judge decide.
APO: Just give me your license, insurance and registration. How long have you lived in East Lansing?

[Trying to get me to say something that would be an admission that my vehicle is illegally registered in Colorado because residents have to register vehicles in Michigan I think within 90 days of taking up residency. It is not illegally registered.]

ME：Officer, my vehicle is registered in Colorado.
APO: I know but how long have you lived here?
ME: Officer, my vehicle is registered in Colorado.
APO: Ok, you don’t want to talk to me . . .

No, you should never want to talk to the cops. They can’t misconstrue something if you don’t say anything.

Click here for the full article.

When marijuana is smoked, THC is rapidly absorbed through the lungs and enters the bloodstream in minutes. Following oral ingestion, THC does not reach the bloodstream for approximately 1.5-3 hours. Once in the blood, THC is bound to blood proteins and carried throughout the body where it is either absorbed into body tissues (including the brain, heart, and fat) or transformed by the liver into the water soluble metabolites 11-hydroxy-THC and carboxy-THC. These water soluble metabolites, are readily excreted into the urine, with the inactive metabolite carboxy-THC being the predominant metabolite detected.

Initially, THC is quickly absorbed into the body tissues and then is slowly released back into the blood stream where it is carried to the liver and metabolized. Because THC tends to be stored in fatty tissues, it accumulates faster than it can be eliminated in chronic repetitive smokers. This leads to extended retention of THC which is then eliminated from the body at a relatively constant rate with an average elimination half-life being estimated at 18-30 hours. Urinary concentrations of THC are very difficult to interpret due to variables such as dosage of THC ingested, frequency of use, timing of urine collection relative to last exposure to marijuana, rate of release of stored cannabinoids in adipose tissue, and an individual?s hydration state. Therefore, the detection of THC metabolites in the urine is only an indication of past marijuana use and is not related to the degree of intoxication or impairment.

Abuse

The psychological effects of THC include an increased sense of well being or euphoria, relaxation, slowed psycho-motor response, an altered sense of time, short term memory impairment and impairment of multi-tasking performance.

THC Retention Time

* Infrequent (less than twice/week) Smoking: When screening assays of 50 ng/mL or greater are used, urine samples will generally be positive for 1-3 days.
* Regular (several times per week) Smoking: May result in urine specimens testing positive for 7-21 days.
* Chronic (daily) Smoking: An individual who smokes marijuana daily for prolonged periods of time can test positive for 30 days or longer.
* Oral Ingestion: Metabolic profiles in urine samples cannot generally differentiate between marijuana ingested orally versus marijuana ingested by smoking. However, oral ingestion requires approximately three times more THC than smoking to produce similar effects or “highs”; therefore, visual detection of the marijuana in the ingested item would seem reasonable, thus ruling out unknown consumption. Retention time of orally ingested marijuana ranges from 1-5 days.
* Passive Inhalation: In general, routine passive exposure to marijuana smoke will not result in a positive result for cannabinoids in excess of a 50 ng/mL screening cut-off.

Laboratory drug testing: Methods of Analysis

The most common analytical methods used to detect cannabinoids in urine include immunoassays (EIA, RIA, and FPIA), gas chromatography (GC), gas chromatography/mass spectrometry (GC/MS), high pressure liquid chromatography (HPLC), and thin layer chromatography (TLC). Urine cannabinoid immunoassays are usually optimized for the detection of carboxy-THC, but also react with other cannabinoids present in the urine. Because of this cross-reactivity, immunoassay results are expressed in terms of “total cannabinoids” and not specifically in terms of carboxy-THC concentration as is detected by GC/MS. Therefore, when interpreting THC concentrations, it is important to realize that GC/MS, which measures only carboxy-THC, generally yields quantitative results which may represent only 10-50% of the “total cannabinoid” value as detected by immunoassays. While immunoassay cross-reactivity to non-cannabinoid compounds is extremely rare, most immunoassay manufacturers recommend that positive results be confirmed by an alternate analytical method. The chromatographic methods meet this requirement, with GC/MS considered the most reliable method. Other methodologies such as TLC and HPLC also achieve good sensitivity and specificity.

The Atlanta Journal-Constitution reports:

A Georgia State Patrol trooper pulled over Evans, in his 2009 BMW, shortly before midnight at Roswell Road and Chastain Drive.

The trooper arrested him on charges of DUI and failure to maintain his lane, and took him to the Atlanta city jail. Evans refused to take a breath test, Wright said.

Evans has since been released from jail. His five-year contract with the university, under which he will be afforded a $110,000 raise, begins today. He became the school’s athletic director in 2004.

Evans is the star of a public service announcement urging students and sports fans not to drink and drive played at UGA home games, SportsByBrooks reported. “If you drink and drive, you lose”.

UGA Athletic Director Damon Evans, whose lucrative new five-year contract takes effect today, will appear before the media at 6:30 p.m. to discuss his arrest for driving under the influence.

It’s not known if Evans will take questions but his remarks have been coordinated with university officials. According to a spokesman, UGA President Michael Adams will issue a written statement following the news conference at the Rankin Smith Center on campus.

A Georgia State Patrol trooper pulled over Evans, driving a 2009 BMW, shortly before midnight Wednesday on Roswell Road and Chastain Drive.

“The trooper made the traffic stop after observing the manner he was driving,” said Gordy Wright, the state patrol spokesman. “He got him stopped, detected an odor of alcohol, administered field sobriety and determined he was less safe to be driving.”

Evans, charged with DUI and failure to maintain his lane, was booked at Atlanta city jail, where he refused to take a breath test, Wright said. The 40-year-old was released early Thursday.

Wright said a passenger with Evans also was taken to jail but further details have not been made available.

In Athens, coaches and senior staff met in Evans’ office in the Butts-Mehre Heritage Hall at 1:20 p.m.

Evans, who became one of the youngest athletic directors in the nation when he succeeded Vince Dooley in 2004, received a $110,000 raise in February to $550,000 annually, with additional $20,000 raises each subsequent year.

Sophomore Kaitlin Miller said students will be buzzing about Evans, who played football at UGA.

“It’s a huge disappointment,” said Miller, a member of the Student Government Association. “I can see students naturally pointing to hypocrisy because of everything he has said against drunk driving.”

Miller said there will need to be accountability and she expects some sort of apology.

“He needs to apologize because there is no condoning that behavior,” she said. “But this was a mistake, a lapse in judgment. I hope it doesn’t jeopardize his previous messages against drunk driving.”

Under Athletic Association policy, student-athletes get suspended for 10 percent of the season for an alcohol-related arrest.

University employees may receive disciplinary action or be suspended for a wide variety of offenses, including “bringing discredit to the university.”

By Larry Hartstein
The Atlanta Journal-Constitution

Watch the Video of the PSA here.: