San Diego Begins Using Mouth Swabs to Detect Drugged Drivers

I’ve been writing for some time now that roadside drug tests for suspected DUI of drugs stops are not far off. The increase in drug usage and the growing acceptance of marijuana has law enforcement agencies and law makers clamoring for a device that can quickly and accurately test whether drivers are under the influence of drugs. While current devices are not quite yet capable of telling law enforcement how intoxicated a driver might be, they can say whether a driver has drugs in their system. And San Diego became the latest city to use such devices roadside.

Last week, San Diego police began using roadside oral swabs to test drivers for the presence of marijuana, cocaine, methamphetamine, amphetamine, methadone, opiates, and benzodiazepines. The oral swabs cannot, however, test the amount of drugs in the driver’s system nor can it test for the driver’s level of intoxication.

The inability to test for quantity of drug or intoxication is legally important because, under California law, a person can only be arrested, charged, and convicted of a California DUI if they are “under the influence of a drug.” This means that a person’s physical or mental disabilities are impaired to such a degree that they no longer have the ability to drive with the caution characteristic or a sober person of ordinary prudence under the same or similar circumstances.

With the swab test only able to indicate the presence of one of the drugs listed above, a prosecutor must still prove that a person was not driving with the care of that of a sober person. This is done with officer testimony of poor driving patterns, failure of field sobriety tests, and visual symptoms of drug impairment.

Although many, including Mothers Against Drunk Driving, often forget, the mere presence of drugs in a driver’s system does not necessarily mean that they are driving under the influence. Tetrahydrocannabinol (THC), the active component in marijuana, for example, can stay in a person’s system for up to several weeks after the smoking or ingestion of marijuana. While, the THC may still be present, the person may no longer be “under the influence.”

San Diego began using the oral swab test, called Dräger 5000, after officials met with authorities in Colorado which legalized recreational marijuana in 2014.

Under San Diego protocol, law enforcement will only request the oral swab after they suspect that the driver might be under the influence of a drug. And before that, the officer must have probable cause to even stop the driver in the first place.

Like the preliminary screening alcohol test (PAS) test in DUI of alcohol cases, the oral swab test is also optional. And like the PAS test, it is never suggested that a driver voluntarily submit to the test. Never give law enforcement and prosecutors any more information than they already have.

Only after a person is arrested must they submit to a chemical test and if law enforcement suspects that a person was driving under the influence of a drug, they’ll have to take a blood test.

According to a study by the California Office of Traffic Safety, 38 percent of drivers killed in vehicle collisions during 2014 tested positive for either legal or illegal drugs. This is up six percent from 2013. While this may seem like a high number, testing positive does not necessarily mean that those drivers were actually under the influence and impaired by a drug.

Although drugged driving is and will always be a problem, we can’t continue to arrest people for driving for the mere presence of drugs in their system because presence does not mean impairment.

 

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Posted March 23, 2017, 5:08 pm
Categories: dwi

Utah Lawmakers Vote to Lower State’s BAC Limit to 0.05

Utah could soon have the lowest blood alcohol content limit in the country after the state’s lawmakers voted to lower the threshold for driving to 0.05 percent.

Currently in California, as well as the rest of the country, the legal blood alcohol limit that a person can have in their system is less than 0.08 percent.

In 2013, the National Transportation Safety Board (NTSB) voted to recommend that states lower their blood alcohol limits to 0.05 percent and cited studies that have shown that impairment can occur with a blood alcohol content of 0.05 percent. And now it seems as though Utah has taken up their recommendation.

The new law, which was sponsored by Rep. Norm Thurston, was advanced on the proposition that a lower blood alcohol content could lower incidences of drunk driving.

“The .08 sends a false message … it’s kind of a game — how much can I drink and still stay under the .08?" said Rep. Kelly Miles. “So this will benefit those because now the message is, ‘I shouldn’t drink anything and drive.’ This will send a message to the nation, but I think the message is ‘you are welcome to come here to Utah, you are welcome to drink, but then please make arrangements for a ride.”

Not all of Utah’s lawmakers were on board.

“I don’t think there’s enough data out there that would suggest that lowering the limit would reduce alcohol-related traffic fatalities,” said Rep. Gage Froerer, noting that texting while driving and distracted driving resulted in more deaths than drunk driving. “No one can dispute the validity of not drinking and driving — that’s a given. But the question comes down to personal freedoms, rights and enforcement. Our efforts are better spent on education and informing the public.”

The change in law begs the question, “How many drinks does it take to get to a blood alcohol content of 0.05 percent?”

The California DMV provides very general chart of for guidance on how many drinks it takes to get to certain blood alcohol contents. I emphasize that the chart is only for guidance. A number of factors will affect how many drinks will get a person to 0.8 and 0.05.

A 160-pound male who has two drinks in an hour will have a blood alcohol content around 0.07 to 0.08 percent. One drink will put the same 160-pound male between 0.04 and 0.05 percent.

A 140-pound female who has two drinks in an hour will have a blood alcohol content around 0.09 percent. One drink will put the same 140-pound female around 0.05 percent.

Across the chart, the difference between getting a DUI in Utah, if the law is passed, and the rest of the country including California is about one drink in an hour. And no, it does not matter what type of drink it is. 1.5 ounces of 80 proof liquor, 12 ounces of 5% beer, and 5 ounces of 12% wine all have about the same amount of alcohol and all count as one drink. 

If Utah’s governor, Gary Herbert, signs the bill, the new law would take effect on December 20, 2018. Just in time for the New Year’s celebrations.

 

 

 

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Posted March 15, 2017, 4:49 pm
Categories: dwi

Can I Expunge a California DUI Conviction?

A very common question people have when they are arrested on suspicion of a California DUI is, “Will this be on my criminal record and, if so, for how long?”

Unfortunately, if the person is convicted, the answer is “yes and forever.” But that doesn’t mean that all hope is lost.

I should clarify before I move on that the arrest will also be on the record, but an arrest, unlike a conviction, cannot be used against you if you were never convicted. Remember, everyone is innocent until proven guilty and if a conviction never occurred, then the person is still innocent. Simply put, an arrest means nothing without a conviction and employers cannot inquire about an arrest nor can they use an arrest as a reason not to hire you.

Having said that, a conviction is different because a conviction means that a person was found guilty of a crime such as a DUI. Convictions can be and are often used by employers as a reason not to hire someone.

When people hear the word “expungement” they think of a clearing of the record, and erasing if you will. However, the term “expungement” is somewhat of a misnomer in California because a DUI conviction, or any criminal conviction for that matter, will not be erased from your record.

California Penal Code section 1203.4 provides, “In any case in which a defendant has fulfilled the conditions of probation…or in any case in which a court, in its discretion and the interest of justice, determines that a defendant should be granted relief under this section, the defendant shall…be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; of, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and…he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted…”

In short, this means that, following the completion of probation, a person can petition to withdraw their guilty plea, no contest plea, or guilty verdict following a trial and the court retroactively dismisses the case.

Although the conviction is not erased from the record, it will now show up as having been dismissed by the court. Cases that are dismissed don’t result in convictions. So, if a person successfully petitions the court for an expungement of a California DUI, they no longer need to disclose the conviction on most employment applications because the conviction was dismissed.

I said that a person need not disclose expunged convictions for most employers because there are some exceptions to the disclosure rule. The conviction must still be disclosed when applying for a government position, a state license, public office, or for contracting with the state lottery. If this is the case, however, a person can then say that the conviction was dismissed under Penal Code section 1203.4 after they have disclosed it.

People make mistakes and sometimes that mistake is the decision to drive while under the influence. Mistakes shouldn’t haunt people for the rest of their lives. If you’ve been convicted of a California DUI and you have completed probation, contact a California DUI attorney about expunging the DUI conviction.

 

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Posted March 8, 2017, 4:34 pm
Categories: dwi

California Lawmakers Seek to Create Drugged Driving Task Force

With the legalization of recreational marijuana in California, lawmakers are pushing efforts to pass new legislation regarding marijuana, particularly when it comes driving after marijuana use. Tom Lackey (R-Palmdale), who is no stranger to introducing anti-DUI laws in California, has introduced a bill that would create a drugged driving taskforce under the supervision of the Commissioner of the California Highway Patrol.

“The bill, AB-6, is a reasonable approach forward to address our fight against drugged driving,” Lackey told the Los Angeles Times. “The urgency of this should be very clear to all of us.”

The bill, which was proposed by the California Police Chiefs Association and introduced by Lackey, if approved, would add a completely new section to the current California Vehicle Code.

The Legislative Counsel’s Digest for the bill says the following:

“This bill would require the commissioner to appoint, and serve as the chair of, a drugged driving task force, with specified membership, to develop recommendations for best practices, protocols, proposed legislation, and other policies that will address the issue of driving under the influence of drugs, including prescription drugs. The bill would also require the task force to examine the use of technology, including field testing technologies, to identify drivers under the influence of drugs, and would authorize the task force to conduct pilot programs using those technologies. The bill would require the task force to report to the Legislature its policy recommendations and the steps that state agencies are taking regarding drugged driving.”

The task force would include representatives from local law enforcement, prosecutors, various representatives from the marijuana industry, representatives from the pharmaceutical industry, representatives from the Office of Traffic Safety, representatives from the National Highway Traffic Safety Association, and licensed physicians.

The Assembly Public Safety Committee unanimously recommended the bill after a hearing in which Karen Smith, a teacher from Antelope Valley, provided emotional testimony about how her husband had been killed a driver who was under the influence of marijuana.

“He was just 56 years old. We had been married for 34 years,” said Smith. “It was all wiped out in just one second by a person who chose to drive under the influence of THC.”

There’s no question that marijuana affects driving ability. Exactly how and to what degree, is up for debate. What is certain however, is that there is a very important difference between being under the influence of marijuana and having THC in your system, and the task force, if AB-6 passes, had better understand the difference.

It is well known that the "per se" limit for how much alcohol can be in a person’s system is 0.08 percent blood alcohol content. With alcohol, there is a fairly strong correlation between blood alcohol content and intoxication. In other words, there is a high probability that a person with a 0.08 blood alcohol content is feeling the effects of alcohol intoxication such that they cannot operate a vehicle as a reasonable and sober person would.

The same cannot be said about the intoxicating effects of marijuana use and the amount of THC in a person’s blood. Unlike alcohol, THC is fat soluble which means that it leaves the body at a much slower rate. In fact, chronic users of marijuana can have THC in their blood weeks after use. Therefore, someone who has smoked marijuana three weeks ago can still be arrested in states with a "per se" THC limit even though they are no longer under the influence of marijuana and perfectly sober.

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Posted March 3, 2017, 4:08 pm
Categories: dwi

Paying for Your Own DUI Arrest

So let’s say you are at a friend’s party and some of you are passing around a joint.  Suddenly, the police show up at the front door.  After conducting an investigation, they arrest you for possession of marijuana.  You later plead guilty, and are sentenced to pay a fine and are put on probation for three years..

Oh yes, and the court orders you to pay for the cost of the police investigation — $500.  

No way, you say?  Well, you would be right….unless maybe it was a DUI you had been arrested for.   In a typical example of the double standard applied to drunk driving cases (see The DUI Exception to the Constitution), some states are permitting or even requiring a defendant convicted of driving under the influence to pay for the investigation and arrest in his own case. 

Fortunately, not all courts are buying into this double standard:


Iowa Supreme Court Nullifies DUI Arrest Fees

Des Moines, IA.  Jan 20 – Driving under the influence (DUI) is a serious crime carrying court-imposed penalties that typically cost those convicted around $10,000. Officials in Scott County, Iowa decided they could get some of that money for themselves by directly billing DUI suspects for the "emergency response" provided by police. The practice ended Friday with the Iowa Supreme Court declaring it unlawful…

…Davenport Police Officer Michael Stegall pulled over Homer Christner, spending two hours conducting roadside sobriety tests and booking him in the county jail. So before the court had sentenced Christner, the city billed the man for the officer’s time at the rate of $61 per hour, plus $36 for the two hours that his police squad car was out of service.


At least they didn’t bill him for room and board before he bailed out.  Or maybe that’s coming next….
 

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Posted March 3, 2017, 9:54 am
Categories: dwi

Could Extending Last Call in California Increase DUI Incidences?

Many people know Nevada, particularly Las Vegas, as the obvious exception to widely accepted last call time of 2 a.m. and some know that a few states such as New York, Hawaii, and Alaska have later last calls than 2 a.m. California’s last call is 2 a.m. One senator hopes to extend the last call in certain California cities such as Los Angeles to 4 a.m.

Just to be clear before I move on, “last call” refers to the last time for which a bar or restaurant can sell alcohol to patrons.

The bill, which was introduced by Sen. Scott Wiener and entitled Let Our Communities Adjust Late Night Act, would allow municipalities to extend last call to 4 a.m. with the approval of the California Department of Alcoholic Beverage Control. The bill provides the flexibility to allow an extension of last call to certain cities or “specific areas” of a town. It also would allow an extension only on certain days of the week or only on specific holidays.

A similar bill by Sen Mark Leno was rejected in 2013 by the Senate Committee on Governmental Organization.

Not so surprisingly, Mothers Against Drunk Driving (MADD) are opposed to extending the last call time just as they were back in 2013.

"MADD supports uniform closing times for establishments that serve alcohol to avoid creating the dangerous possibility that patrons will bar-hop for that one last drink — a dangerous scenario that all too often increases the risk of drunk driving," national spokeswoman for the group, Becky Iannotta, said in an email to LA Weekly.

According to Weiner, the extra two hours would provide an enormous amount of extra revenue to the hospitality industry in California. In a statement Weiner said that the law would allow cities to “benefit economically and culturally from a strong nightlife presence.”

Amongst the supporters of the bill is the California Restaurant Association and the California Music & Culture Association.

“Nightlife is a major economic and cultural driver in California,” said the California Music & Culture Association’s co-chair, Ben Bleiman, in a statement. “This bill represents a crucial opportunity for California’s cities and towns to choose to join the ranks of those across the country and the world offering truly world-class nightlife for their residents and visitors.”

The group Taxpayers for Improving Public Safety argued in 2013, when Sen. Leno attempted to introduce his bill, that staggering the last call times in California would lessen the burden on law enforcement and public transportation because not all bargoers and drunks would be hitting the streets at the same time.

 

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Posted February 23, 2017, 11:15 am
Categories: dwi

How Much Marijuana Does It Take to Impair Driving?

A number of posts on this blog have addressed the problems encountered in trying to measure levels of marijuana — or, more accurately the active ingredient Tetrahydrocannabinol ("THC") — in the blood of a person when he was driving.  See, for example, Oregon Legislative Study Criticizes "Per Se" DUI Marijuana Laws and Marijuana Legalization and the California DUI.   

More importantly, these and other posts have also raised the related but unanswered question:  How much marijuana in the human body does it take to render a driver unable to safely operate a motor vehicle in the manner of a sober person (the rough definition of "driving under the influence" or "driving while intoxicated")?  See New Efforts to Push Roadside Marijuana DUI Test

The following excerpts from a recent article in The Atlantic, entitled "When Are You Too Stoned To Drive?", provide an excellent analysis of these important issues: 


…We take for granted that not being able to walk a straight line or stand on one leg means that you’re drunk, and that being drunk means it’s unacceptably dangerous to drive. But there is no clear scientific consensus when it comes to smoking pot and driving. And few of the tools police officers have long relied on to determine whether a driver is too drunk to drive, like a breathalyzer, exist for marijuana…

Most (but not all) studies find that using pot impairs one’s ability to drive. However, overall, the impairment appears to be modest—akin to driving with a blood alcohol level of between .01 and .05, which is legal in all states. (The much greater risk is in combining pot with alcohol.) The increased crash risk with pot alone “is so small you can compare it to driving in darkness compared to driving in daylight,” says University of Oslo political scientist Rune Elvik, who conducted several major meta-analyses evaluating the risk of drugged driving…

When it comes to alcohol, science and the courts have long established a direct line between number of drinks, blood alcohol level, and crash risk. As one goes up, so do the others. Not so for pot. Scientists can’t say with confidence how much pot, in what concentration, used in what period of time, will reliably make someone “high.”…

Blood levels of THC—tetrahydrocannabinol, the chemical component of pot that makes you high—spike quickly after smoking and then decline rapidly in the hours afterwards, during the window when a smoker would feel most high. What’s more, regular smokers could have THC in their blood for days or weeks after smoking, when they are clearly no longer high.

Still, laws in 18 states tie drugged driving charges to whether drivers have THC (or related compounds) in their blood. Some states prohibit driving with any amount, and some specify a threshold modeled after the .08 limit states use for blood alcohol. But the lag time between being pulled over and being transported to a hospital for a blood draw—on average, more than two hours—can lead to false negatives, while the tolerance developed by regular users (and the tendency for THC to stick around in their bloodstreams) can lead to false positives. This is why, researchers say, blood THC laws make little sense… 


Scientific facts, however, have never prevented politicians from passing expedient and politically-popular laws, or police and prosecutors from enforcing them. 
 

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Posted February 20, 2017, 11:28 am
Categories: dwi

Rare Disorder Causes DUI without Drinking

A woman, who requested to be called Sara to maintain confidentiality and protect her legal career, was arrested in 2015 for driving under the influence when she collided with a parked vehicle. It was later determined that she had a blood alcohol content of 0.10 percent. Sara had been arrested for DUI before back when she was an admitted alcoholic. This time, however, was different. Sara, now a recovering alcoholic for nearly ten years, only drank orange juice.

Sara drank orange juice and lots of it, sometimes up to a gallon per day. That orange juice, however, might as well have been alcohol for Sara.

Sara suffers from auto-brewery syndrome. Yes, that is an actual medical condition albeit an extremely rare one. Auto-brewery syndrome causes a person’s body to produce extremely high levels of yeast in the digestive track. If you know anything about how beer is made, you’ll know that yeast eats the sugar that is extracted from boiling grains and then releases carbon dioxide and alcohol. See where I’m going? The yeast in Sara’s system ate the sugars from the orange juice and produced alcohol in Sara causing her to be intoxicated without having a sip of alcohol.

Shortly after she was diagnosed last July, Sara accepted a plea deal for a reduced charge of reckless driving with probation.

Sara estimates that she spent $25,000 fighting the drunk driving charge, with expenses including attorney fees and a privately commissioned polygraph test. She says she chose to take a deal rather than go to trial because a conviction could have been career-ending.

“As soon as I stopped the orange juice, I was fine,” said Sara. “I don’t even tell anyone [about the disorder] because you can almost see them rolling their eyes.”

In 2014, a New York judge dismissed the DUI charge of a woman who was pulled over after a motorist noticed her driving poorly. After police arrived, it was determined that the woman had a whopping 0.33 percent blood alcohol content.

Another characteristic of the disorder is an unusually high tolerance to the alcohol in their system.

The woman’s lawyer hired two physician assistants and a breathalyzer specialist to evaluate the woman over a 12-hour period. They found that the woman’s BAC was double the legal limit at 9:15 AM. At 6 PM, it was triple, and at 8:30 PM, it was four times higher. This was around the same time when the police pulled the woman over for DUI. In other words, her body was producing alcohol consistently throughout the day. Oddly, however, the woman did not exhibit any signs of intoxication until her blood alcohol content reach between 0.30 and 0.40 percent where she would feel dizzy.

Normal people with a blood alcohol content that high are usually unconscious at a minimum, some would be suffering from alcohol poisoning.

“My client does suffer from an extremely unusual condition, and we conducted very extensive medical research and presented our findings to the judge,” said the woman’s defense attorney, Joseph A. Marusak. “To my knowledge, this is the first time a DWI case has ever been dismissed on this basis in New York State, and as far as I can tell, it may be the first time in the country.”

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Posted February 10, 2017, 7:26 pm
Categories: dwi

When Does a California DUI Become a Felony?

Generally, when a person is arrested on suspicion of driving under the influence in California, it is a misdemeanor charge. Misdemeanors are punishable by no more than a year in jail. Sometimes, however, a California DUI can be charged as a felony, meaning that it can be punishable by more than a year in jail.

So when does a California DUI become a felony?

The first way that a California DUI can become a felony is if a drunk driver causes death or injury. California Vehicle Code section 23153 makes it unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, or with a blood alcohol content of 0.08 percent or higher to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

A California DUI causing injury is known as a “wobbler.” This means that it can be charged as either a misdemeanor or a felony. Whether a prosecutor charges a violation of California Vehicle Code section 23153 as a misdemeanor or a felony depends on several considerations such as the level of intoxication, the seriousness of the injury, the defendant’s prior criminal history, and any other aggravating factors.

If a drunk driver causes the death of someone and the drunk driver has not suffered any prior DUI convictions, the defendant will more likely be charged with vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated under the California Penal Code.

However, if a DUI results in a death and the defendant has suffered a prior DUI conviction within ten years, they can and most likely will be charged with second degree murder. This is known as the “Watson Murder Rule.” In short, the court’s view is that, because the person suffered prior convictions, they knew it was dangerous, yet they did it anyways knowing the risk to life.

The second way that a California DUI can be a felony is when a person has suffered three prior DUI convictions within the past ten years. Priorable DUI charges include driving under the influence (California Vehicle Code section 23152), driving under the influence with injury (California Vehicle Code section 23153), wet-reckless (California Vehicle Code section 23103.5), and out-of-state convictions that qualify as a priorable conviction. Out-of-state DUI convictions qualify as a prior DUI if they would be considered a DUI had the arrest occurred in California.

To prove priorable convictions the prosecutor may use court records from the prior cases as well as Department of Motor Vehicle records. The prosecutor may also use “expunged” (California Penal Code section 1203.4 dismissal) priors in enhancing a DUI charge if the conviction occurred within the 10-year period.

Lastly, a California DUI can become a felony if a person suffered a prior felony DUI within ten years. The priorable felony offense can be a conviction of California Vehicle Code section 23152 (fourth or more DUI), California Vehicle Code section 23153 (DUI causing death or injury), California Penal Code section 192 (vehicular manslaughter), or California Penal Code section 191.5 (vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated).

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Posted February 3, 2017, 1:55 pm
Categories: dwi

Oregon Legislative Study Critcizes “Per Se” DUI Marijuana Laws

As I’ve posted often in the recent past, with the increasing use — and legalization — of marijuana, legislators and law enforcement are falling over themselves trying to come up with answers to many uncomfortable questions, such as:


Does marijuana, in fact, impair driving ability?

How does an officer detect recent use of marijuana in the field? 

How do you measure the amount of active marijuana (THC) in the body at the time of driving?

At what level of active ingredients in the body is a person impaired? 

How long do measurable amounts of marijuana stay in the body?

If impairment levels cannot be determined, is there an illegal per se level that can be used, such as .08% with alcohol? 


And as I’ve posted in the past, there are no accepted satisfactory answers to these and related questions.  See, for example, California Law Attempts to Prevent Marijuana Use While Driving, Is it Possible to Prove "Driving Under the Influence of Drugs? and Legal Defenses to a California DUI of Marijuana.  

Unlike with alcohol, the various states have taken a variety of different approaches to criminalizing marijuana and driving.  See What Are Your State’s Drugged Driving Laws?   One recent and growing approach is to simply create so-called "per se" laws which criminalize driving with specific levels of THC in the blood, regardless of impairment.  This was recently considered by the Oregon Legislature, resulting in the following Oregon House Bill Legislative Report, excerpts of which follow:


Salem, OR.  Dec. 31 —  …While Colorado and Washington, the first states to legalize recreational marijuana, instituted a per se THC blood concentration limit of 5 ng/ml, Oregon did not. Instead, Oregon relies on evaluations by Drug Recognition Experts (DRE) to assess drivers for intoxication if they have already passed a breathalyzer test (i.e. have blood alcohol content below 0.08)….

Differences in how the body processes marijuana as compared to alcohol makes accurate detection of THC concentration and its intoxicating effect significantly more difficult. It is especially difficult to detect recent use of marijuana in the field… 

Due to restrictions on cannabis research and limited data, it is difficult to make definitive statements about the risk of THC-intoxicated driving. The body of evidence that does exist indicates that while attitudes towards driving after marijuana use are considerably more relaxed than in the case of alcohol, the risk of crashes while driving under the influence of THC is lower than drunk driving. Little evidence exists to compel a significant change in status quo policy or institute a per se intoxication standard for THC.


While the confusion, floundering and passage of inconsistent laws continue, so do the arrests and convictions of innocent drivers. 
 

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Posted January 31, 2017, 6:30 pm
Categories: dwi

Oregon Legislative Study Criticizes “Per Se” DUI Marijuana Laws

As I’ve posted often in the recent past, with the increasing use — and legalization — of marijuana, legislators and law enforcement are falling over themselves trying to come up with answers to many uncomfortable questions, such as:


Does marijuana, in fact, impair driving ability?

How does an officer detect recent use of marijuana in the field? 

How do you measure the amount of active marijuana (THC) in the body at the time of driving?

At what level of active ingredients in the body is a person impaired? 

How long do measurable amounts of marijuana stay in the body?

If impairment levels cannot be determined, is there an illegal per se level that can be used, such as .08% with alcohol? 


And as I’ve posted in the past, there are no accepted satisfactory answers to these and related questions.  See, for example, California Law Attempts to Prevent Marijuana Use While Driving, Is it Possible to Prove "Driving Under the Influence of Drugs? and Legal Defenses to a California DUI of Marijuana.  

Unlike with alcohol, the various states have taken a variety of different approaches to criminalizing marijuana and driving.  See What Are Your State’s Drugged Driving Laws?   One recent and growing approach is to simply create so-called "per se" laws which criminalize driving with specific levels of THC in the blood, regardless of impairment.  This was recently considered by the Oregon Legislature, resulting in the following Oregon House Bill Legislative Report, excerpts of which follow:


Salem, OR.  Dec. 31 —  …While Colorado and Washington, the first states to legalize recreational marijuana, instituted a per se THC blood concentration limit of 5 ng/ml, Oregon did not. Instead, Oregon relies on evaluations by Drug Recognition Experts (DRE) to assess drivers for intoxication if they have already passed a breathalyzer test (i.e. have blood alcohol content below 0.08)….

Differences in how the body processes marijuana as compared to alcohol makes accurate detection of THC concentration and its intoxicating effect significantly more difficult. It is especially difficult to detect recent use of marijuana in the field… 

Due to restrictions on cannabis research and limited data, it is difficult to make definitive statements about the risk of THC-intoxicated driving. The body of evidence that does exist indicates that while attitudes towards driving after marijuana use are considerably more relaxed than in the case of alcohol, the risk of crashes while driving under the influence of THC is lower than drunk driving. Little evidence exists to compel a significant change in status quo policy or institute a per se intoxication standard for THC.


While the confusion, floundering and passage of inconsistent laws continue, so do the arrests and convictions of innocent drivers. 
 

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Posted January 31, 2017, 6:30 pm
Categories: dwi

Company Behind Personal Breathalyzer Settles Dispute with FTC

I’ve never hidden my belief that if a personal breathalyzer can prevent a DUI, it should be used. That being said, it seems the company behind one of the most popular personal breathalyzers on the market has settled with the Federal Trade Commission (FTC) over false claims of its accuracy.

On the fifth season of ABC’s hit show “Shark Tank,” CEO and founder of Breathometer Inc., Charles Michael Yim, won over the “shark” investors with an invention called the “Breathometer” that allowed users to a detect their own blood alcohol content through their smart phone. The device attached to smartphone, would be blown into by the user, and the smartphone would calculate the BAC through an app. Yim’s pitch included the prospect that the Breathometer could prevent incidences of driving under the influence of alcohol.  The investors were so impressed with Yim’s invention that they offered up a $1 million dollar investment in exchange for a 30% stake in his startup.

The Breathometer became a consumer hit partly due to advertisements which claimed that the devices accuracy was backed up by government-lab grade testing. According to the FTC, sales for the Breathometer totaled $5.1 million.

However, more than three years after the episode aired, the FTC announced that Yim and Breathometer Inc. had settled a claim that the device “lacked scientific evidence to back up their advertising claims.” The complaint also alleged that the company knew that one variation of the Breathometer, the Breeze, “regularly understated” blood alcohol content levels.

While Yim and Breathometer Inc. did, in fact, settle with the FTC, they did not admit or deny the FTC’s allegations.

Under the settlement with the FTC, Yim and Breathometer Inc. are barred from making claims of the device’s accuracy unless the claims are supported through “rigorous testing.” The company also agreed to notify purchasers of the product to offer full refunds.

“People relied on the defendant’s products to decide whether it was safe to get behind the wheel,” Jessica Rich, director of the FTC’s Bureau of Consumer Protection, said in a statement. “Overstating the accuracy of the devices was deceptive — and dangerous.”

Breathometer recognized the settlement on its website by stating, “We feel it is important to clarify that this settlement does not undermine our achievements in creating quality consumer health devices.”

Kevin O’Leary, one of the Shark Tank investors, responded to the settlement by stating that the company proactively stopped the manufacturing of the Breathometer in 2015 before the FTC’s initial inquiry.

I stand by my assertion that a personal breathalyzer is a good way to prevent a DUI. Just do some research beforehand on the reliability of what you purchase. According to digitaltrends.com, the best personal breathalyzer for 2016 was the BACtrack S80 Professional Breathalyzer which will run you $125. According to the website, the best smartphone breathalyzer was the BACtrack Mobile Smartphone Breathalyzer at $98, the best portable breathalyzer was the BACtrack Keychain Breathalyzer Portable starting at $26, and the best budget breathalyzer was the VastarAB120 Professional at $20.

Better to spend $125 (at most) to prevent a DUI than to spend the thousands of dollars it will cost you if you are arrested on suspicion of a DUI.

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Posted January 26, 2017, 7:10 am
Categories: dwi

What Are Your State’s Drugged Driving Laws?

"Drunk driving" is a fairly well-defined criminal offense in all 50 states.  There are generally two crimes set forth by statute:  (1) driving a vehicle under the influence of alcohol and (2) driving a vehicle with a blood-alcohol content of .08% or higher.  The only differences are in relatively minor variations as to what a "vehicle" is and what constitutes being "under the influence".

In marked contrast, however, the definitions of driving under the influence of drugs (so-called "drugged driving" or "DUI drugs") vary significantly from state to state.  In one state, for example, the crime consists of driving while "impaired by" or "under the influence of" a drug.  In another, it may be defined as driving with a specifically designated amount of the drug in the blood.  In yet another, the offense is committed if there is any measurable amount of the drug in the body — and in some states this will include marijuana, while in others it does not.

Do you know what the drugged driving laws are in your state?

Fortunately, the National Alliance for Model State Drug Laws (NAMSDL) in Charlottesville, Virginia, supported by  grant from the U.S. Office of National Drug Control Policy, has provided a chart entitled State Drugged Driving Standards which readily identifies the laws of each state.    
 

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Posted January 23, 2017, 12:18 pm
Categories: dwi

Former NFL Star Sues Bar for Son’s DUI Death

Former New England Patriot and Los Angeles Raider star, Brian Holloway, is suing a Florida bar after Holloway’s son was killed in a DUI related collision after leaving the bar.

Max Holloway, son of Brian Holloway, frequented Panini’s Bar and Grill in Lutz, Florida. On October 26, 2016, Max Holloway, was at Panini’s drinking until 2:30 in the morning at which time he left in his vehicle.

Not far from his condo, Max lost control of his vehicle and crashed into a nearby home. He was killed in the collision.

Under Florida law, a person or a business can be held liable for injuries or damages caused by a habitual alcohol drinker whom was served by that person or business.

Laws like Florida’s are called “dram shop laws.”

Not to say that the bar was right to continue to serve Max Holloway, but to hold them liable for the decision he made to drive while under the influence seems to be rather unfair.

Fortunately, California sees it the same.

While other states such as Florida may hold a bar liable for injuries caused by a drunk driving customer, in California it is the customer’s willful decision to drink and then drive which is the cause of any subsequent DUI collision. Thus, in California, bars and restaurants are shielded from liability when a customer over drinks, drives away, and causes injury or damage.

California’s “Dram Shop Laws” (California Civil Code section 1714) read as follows:

(b) It is the intent of the Legislature to . . . reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.

(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.

(d) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.

As you can see, the laws are different if the customer is under the age of 21. It is the responsibility of bar to ensure that their customers are of legal drinking age before serving them alcohol. People under the age of 21 are legally deemed incapable of making good decisions regarding alcohol use…like the decision not to drive after drinking at a bar.

While California’s law differ from other states with respect to civil liability, like Florida, a bar may be held criminally liable if they serve alcohol to an “obviously intoxicated person.”

According to California Business and Professions Code section 25602(a), “Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor.”

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Posted January 19, 2017, 7:45 am
Categories: dwi

So Much for the Presumption of Innocence

We pride ourselves in this country on our Constitution and the protections it gives us from the abuses of Big Government.  Perhaps most prominent of these rights is the "presumption of innocence", and the associated right not to have our freedoms or property taken without due process of law.

Except in drunk driving cases…

As I’ve written ad nauseum in the past, there is clearly a DUI Exception to the Constitution in our criminal justice system — and has been for many years.  See, for example, The Disappearing Right to Jury Trials…in DUI Cases, Another DUI Exception to the Constitution and The DUI Exception Continues

If you need any examples of this, just consider the following news article published online this morning….


Federal Appeals Court Upholds Ferrari Confiscation

Suffolk County, NY.  Jan. 13 – The Second Circuit US Court of Appeals upheld the government’s confiscation of James B. Ferrari’s Ferrari in a ruling last week. Officials in Suffolk County, New York had grabbed the 2003 Ferrari Modena coupe, valued at $95,000, after Ferrari was stopped and accused of driving under the influence of alcohol (DUI) on May 26, 2009.

A police officer saw the Ferrari allegedly reaching speeds over 100 MPH on South Country Road in Bellport. Ferrari was arrested and his Ferrari confiscated under the state’s drunk driving statute. Ferrari’s attorney argued the Due Process clause of the Constitution required the exotic automobile be returned after his client posted a bond — at least while the charges were being litigated in court. At that point, Ferrari had not be found guilty of any crime.  Ferrari’s attorney insisted that it was the county’s burden to prove the seizure was the only possible remedy to the situation, and a judge and jury both agreed. They ordered the county to pay $95,000 to Ferrari to compensate for the loss of his automobile.

A three-judge appellate panel overturned that judgment in last week’s decision, pointing to Ferrari’s long and sordid history of serious driving offenses, including past DUIs…

"Indeed, if the ultimate forfeiture of a car may validly serve the purpose of preventing this forfeited item of property from being further used as an instrumentality of crime, it is not evident why retention pendente lite [i.e. while litigation is pending] cannot serve, in at least some circumstances, a similar purpose," Judge Debra Ann Livingston wrote for the Second Circuit…


So before the defendant was ever convicted of any crime, his car (not incidentally worth a lot of money to local government authorities) was confiscated by the government.  Maybe I’m missing something, but isn’t there a presumption of guilt being applied here?  And isn’t the appellate judge basically saying, "Yes, you are presumed not to have been driving drunk — and we’re going to confiscate your car so that you don’t do it again"?

 

(Thanks to Joe.)

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Posted January 13, 2017, 9:53 am
Categories: dwi

California Law Attempts to Prevent Marijuana Use While Driving

As many of you now know, California passed proposition 64 this past November making recreational marijuana use and possession legal. According to Senator Jerry Hill, D-San Mateo, and Assemblyman Evan Low, D-Campbell, proposition 64 contains a loophole that they intend to close.

Last week, the legislators introduced Senate Bill 65 which will criminalize smoking marijuana while driving. Although Proposition 64 legalized the recreational use and possession of marijuana, it still made it illegal to have an open container of marijuana in a vehicle. Proposition 64 did not, however, address the use of marijuana while driving according to Hill and Low.

If you recall from previous posts, Hill has been known to introduce legislation aimed at preventing drunk driving. Last year he passed a law requiring ignition interlock devices for convicted drunk drivers who wished to reinstate their licenses.

“I have a real passion for solving our impaired driving in California from substance abuse,” Hill said. “I don’t want to go in a positive direction on one end and open up the door for deaths on the other end.”

One complaint that opponents have to Senate Bill 65 is that it also bans consumption of cannabidiol, the component of marijuana which is often used by those suffering from chronic pain or to alleviate the symptoms associated with cancer. Cannabidiol does not contain THC (tetrahydrocannabinol), which is the chemical in marijuana that causes impairment.

As I see it, another problem with Senate Bill 65, if passed, is that if a person is arrested for driving while smoking marijuana, they will also inevitably be arrested on suspicion of driving under the influence of marijuana. While a person may have been caught smoking while driving, it doesn’t necessarily mean that they are “under the influence” of marijuana.

To be under the influence of marijuana, the person’s use of marijuana caused their mental or physical abilities to become impaired such that they can no longer drive a vehicle with the same caution of a sober person, using ordinary care, under similar circumstances.

While police can utilize field sobriety tests, if the person agrees, to assess whether motor skills are impaired, there is no way to determine how “high” a person is after smoking marijuana. As I’ve said in many previous posts, this is different from alcohol where these is a correlation between a person’s blood alcohol content and impairment. No such correlation exists with marijuana.

Therefore, if Senate Bill 65 is passed, a person arrested for smoking while driving not only faces misdemeanor charges under that law, but they can also inevitably expect DUI of marijuana charges as well.

You can be sure I’ll be keeping my eyes on the progress of this one.

 

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Posted January 5, 2017, 7:03 am
Categories: dwi

Court: A Wheelchair Isn’t a Vehicle….Duh!

The surreal "War on Drunk Driving" never ceases to amaze….

In their frantic desire to win votes, satisfy MADD, meet arrest quotas and make money, politicians, cops, prosecutors and judges fall over themselves trying to look tough on DUI.  One ridiculous example of this is expanding the entire concept of "driving a motor vehicle under the influence" to include operating anything that moves on a street, sidewalk or parking lot.  A few of my past posts reflect this:  DUI on a ScooterDUI in a Wheelchair?,  Drunk Driving on a Lawn Mower, DUI – While Walking a Bike, DUI…in a Lounge Chair and Drunk Driving…on a Horse.

Every once in a while, however, some court comes along and courageously announces that "The emperor has no clothes"….


Drunken Driver of a Wheelchair Was a Pedestrian, Appellate Court Rules

Lincoln County, OR.  Dec. 30, 2016 – A man convicted of drunkenly driving his motorized wheelchair should be considered a pedestrian rather than a driver, the Oregon Court of Appeals ruled Thursday, reversing and acquitting him.

James Richard Greene was charged with DUI in Lincoln County, for a 2012 incident in which he hit the side of a moving truck while he crossed the street in a crosswalk…

At his two-day jury trial, Greene’s attorney moved for acquittal, calling Greene a pedestrian and not a driver.  Judge Paulette Sanders denied the motion. Greene appealed and on Thursday the three-judge panel reversed, concluding that “the trial court erred in denying defendant’s motion for a judgment of acquittal.”

“We are persuaded that the dichotomy that pervades the vehicle code between pedestrians and operators of vehicles decisively evinces a legislative intention not to subject people in motorized wheelchairs to the DUII statutes when they are traveling as pedestrians in crosswalks,” Presiding Judge Rex Armstrong wrote for the unanimous panel…

Nonetheless, the appeals court found the state’s interpretation of the DUI statute “plausible,” because of the broad way “vehicle” can be interpreted. But it concluded that the Legislature did not intend to treat a person as both a pedestrian and a driver, and Greene was not subject to the vehicle code.  


One wonders if sanity will prevail…or if the prosecutor will appeal this ruling — and win before the Oregon Supreme Court based on "the broad way ‘vehicle’ can be interpreted" to include wheelchairs.  Really?!
 

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Posted January 4, 2017, 11:45 am
Categories: dwi

“Driving Under the Influence of Coffee” Charges Dismissed

In my previous post Driving Under the Influence of…Caffeine?, I reported on pending criminal charges against a citizen for driving under the influence of …yes, coffee.  This was after an ABC agent (California Alcohol Beverage Control) was apparently upset when she claims to have been cut off by the "erratic" driver and she stopped and arrested him.  

Subsequent blood tests showed no alcohol or drugs of any kind in his system.  Zero.  Despite this, the Solano County D.A. filed DUI charges against the driver.  He has, of course, consistently refused to plead guilty and has demanded a jury trial.

Yesterday, after almost a year-and-a-half, the D.A. finally dismissed the DUI charges….  


DA Drops DUI Charge for Man Who Tested Positive for Caffeine

Solano County, CA.  Dec. 30 — The Solano County District Attorney’s Office decided Wednesday to drop a DUI charge against a Fairfield man who only tested positive for caffeine.

The charges were dropped more than 16 months after Joseph Schwab, 36, was pulled over on Interstate 680 near Gold Hill Road as he drove to his Fairfield home.

"After further consideration, without a confirmatory test of the specific drug in the defendant’s system that impaired his ability to drive, we do not believe we can prove the charge beyond a reasonable doubt," District Attorney Krishna Abrams said Wednesday in a news release…
 

I wonder why, after almost a year-and-a-half, the D.A. suddenly decided to dismiss the charges?  Could it possibly have been the embarrassing media attention in the last few days?
 

 

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Posted December 30, 2016, 2:07 pm
Categories: dwi

Driving Under the Influence of….Caffeine?

Just when you thought the "War on Drunk Driving" could not get any crazier…..


California Man Fights DUI Charge for Driving Under Influence of Caffeine

San Francisco, CA.  Dec. 24 - Caffeine may be the “nootropic” brain drug of choice in Silicon Valley, but an hour’s drive north in Solano County, California, the stimulant could get you charged with driving under the influence.

That is according to defense attorney Stacey Barrett, speaking on behalf of her client, Joseph Schwab.  After being pulled over on 5 August 2015, Schwab was charged by the Solano County district attorney with misdemeanor driving under the influence of a drug.

Almost 18 months later, Schwab is preparing to go to trial. The only evidence the DA has provided of his intoxication is a blood test showing the presence of caffeine.

Schwab was driving home from work when he was pulled over by an agent from the California department of alcoholic beverage control, who was driving an unmarked vehicle. The agent said Schwab had cut her off and was driving erratically.

The 36-year-old union glazier was given a breathalyzer test which showed a 0.00% blood alcohol level, his attorney said. He was booked into county jail and had his blood drawn, but the resulting toxicology report came back negative for benzodiazepines, cocaine, opiates, THC, carisoprodol (a muscle relaxant), methamphetamine/MDMA, oxycodone, and zolpidem…

“It’s really stupid,” said Jeffrey Zehnder, a forensic toxicologist who frequently testifies in court cases. Over 41 years, Zehnder said, he had never seen a prosecution for driving under the influence of caffeine…

California vehicle code defines a “drug” as any substance besides alcohol that could affect a person in a manner that would “impair, to an appreciable degree” his ability to drive normally.

Making that case with caffeine would be difficult, Zehnder said, because the prosecutor would have to show that impaired driving was specifically caused by the caffeine and not any other circumstances.

“There are no studies that demonstrate that driving is impaired by caffeine, and they don’t do the studies, because no one cares about caffeine,” he said.


So how could this case possibly have been filed by the prosecutor — not to mention arrested to begin with?  And how could it possibly be going to trial?  Does the prosecution seriously believe that coffee is intoxicating?  Is law enforcement running out of drunk drivers to arrest?  Does Solano County government really need the money from fines that badly?

Or is there a simpler explanation?  Let’s take a second look at the story…..


Schwab was driving home from work when he was pulled over by an agent from the California department of alcoholic beverage control, who was driving an unmarked vehicle. The agent said Schwab had cut her off and was driving erratically.

 
Hmmm….Maybe the arresting "alcohol beverage control" agent was simply suffering from a case of "road rage" — and abused her legal authority?  
 

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Posted December 27, 2016, 8:53 am
Categories: dwi

“Pot Breathalyzers” on the Horizon…

 As I’ve mentioned in past posts, there are a number of problems with trying to determine whether a driver is under the influence of marijuana.  See, for example, Marijuana-Impaired Driving: A Prosecutor’s Nightmare?, New Study: Minimal Driving Impairment From MarijuanaCalifornia Proposes New Law to Allow Roadside Marijuana Tests, Is a Marijuana Breathalyzer in the Offing?    Primary among these problems are:


1.  Marijuana cannot be detected or measured on a breath machine.  It can be measured with blood tests, but there is almost always a delay — often hours — in obtaining a blood sample.  Result:  due to continuing metabolism of marijuana in the body, the level at the time of testing may be significantly higher or lower than at the time of driving

2.  Unlike alcohol which dissipates after several hours, THC (the active ingredient in marijuana) can stay in a person’s system for days or even weeks after smoking or eating.  Even though they are no longer affecting the driver, they will be still detected and reported as marijuana in the blood.

3.  There are no recognized scientific studies establishing at what level of THC in the blood a person’s driving ability is impaired.


A solution to one of these problems would be the development of a breath machine which could accurately measure marijuana on the breath — particularly if this could be done quickly at the scene of the arrest.  But no such device exists….yet:


Marijuana Breathalyzers to Test California Pot Users for Pot Use

Los Angeles, CA.  Sept. 14 – An Oakland-based company has developed a marijuana breathalyzer for distribution across police stations in the U.S. to begin a nationwide test to see if they can monitor people operating motor vehicles while under the influence of pot, and drivers in California were among the first to be tested…

The marijuana breathalyzer – which had some help in development by the University of California’s chemistry department – is able to detect THC on people’s breath after they’ve consumed edible pot products as well as alcohol.

Hound Labs plans to roll their product out nationwide upon further testing to validate the technology’s results.

Until it’s perfected, police will have to continue relying on testing saliva, urine, and blood to measure marijuana in the system, which can show the presence of drugs days after the user is actually under the influence.

Some police have already shown their support for the breathalyzer, including Lompoc Police Chief Patrick Walsh, who says he plans on issuing the device to at least six of his departments over the next six months…


Ok, so maybe they will be able to detect and even measure the amount of THC in the blood from testing the breath.  But how does this solve the problem of inactive THC still remaining in the blood from smoking days or weeks earlier?  And what good is it to know the amount of THC in the breath if there is still no scientific evidence of the amount necessary to impair driving ability?
 

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Posted December 20, 2016, 10:00 am
Categories: dwi

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