McGlone Law Firm, P.C. RSS Feed http://www.mcglonelaw.com/blog/ McGlone Law Firm, P.C. RSS Feed en-us 2012 McGlone Law Firm, P.C., All Rights Reserved, Reproduced with Permission http://www.mcglonelaw.com/blog/ Fri, 18 May 2012 04:46:00 GMT McGlone Law Firm, P.C. RSS Feed http://www.mcglonelaw.com/images/logoprint.gif http://www.mcglonelaw.com/blog/ <![CDATA[Sleepy Driving as Dangerous as Driving Drunk]]> This item was taken from a blog on the World Sleep Foundation site.

Sleepy Driving as Dangerous as Driving Drunk

by lowes1 on November 9, 2010

Sleepy Driving is Dangerous and can be as Dangerous as Drunk Driving Says a new AAA study. 40 percent of Americans admit they’ve fallen asleep while driving
This item was taken from a blog on the World Sleep Foundation site.
A new study out Monday shows you should get more sleep before you get behind the wheel. AAA says more than 40–percent of Americans admit they’ve fallen asleep while driving. Also, 15–percent of all deadly crashes happen because one of the drivers was drowsy. according to the new study.
Sleep Driving Study Highlights:
* AAA said driving drowsy can be as dangerous as driving drunk.
* AAA study advises more sleep for driver
* Forty-one percent of drivers admit to having “fallen asleep or nodded off” at some point in their lives, according to a new survey done by AAA.
* One in 10 within the last year.
* More than half of them fell asleep on a highway.
* And one in six fatal crashes involves a drowsy driver.
“Most people think they can control it, but the research show . . .  
Click here to read the full article:
http://worldsleepfoundation.org/sleepy-driving-as-dangerous-as-driving-drunk.htm
]]> http://www.mcglonelaw.com/blog/sleepy%2Ddriving%2Das%2Ddangerous%2Das%2Ddriving%2Ddrunk%2Ecfm www.mcglonelaw.com-80885 Fri, 04 May 2012 08:00:00 GMT <![CDATA[Virginia Passes Mandatory Ignition Interlock for all DUI/DWI Convictions]]>


Both houses have now passed this bill, calling for interlocks in First Offense DUI.  There is no doubt that the
Governor will sign it and it will go into effect on July 1, 2012. 

The full text of the new legislation can be found at this link:

New Virginia Ignition Interlock Laws

 A few features of the new law:

  1. All first offender DUI except for 18.2-266 (v) must take an interlock in order to have a Restricted Operator's License.
  2. So, DUID (Driving Under the Influence of Drugs) will also require it, and there is no exception for the fact that the case involved no alcohol.
  3. They have added an amendment expressly prohibiting interlock pretrial.  Nobody can voluntary install one of these devices on their car. [1]  This is probably the best indication that we have lost all logical nexus between public safety and the neo-prohibitionist move to punish all who choose to drink.  
  4. They will now allow the person to drive to and from the facility to have the interlock serviced. (But only in a car with interlock already installed).[2]
  5. They amended to allow first offenders to have it installed on one vehicle only instead of all vehicles (the Albo amendment-- "Thanks, Dave!")[3] 
We can expect a huge delay in allowing people to drive as there will surely be a shortage of appointments and potentially a shortage of hardware as we go from about 5-10% of cases to all 100% of 4,000 cases per year in Fairfax.


As a further note, this legislation includes no exception, and no practical provisions, to provide for persons who are licensed in another state but will be required by a Virginia conviction to have the interlock installed on their car.  

I have recently posted some FAQ describing the interlock installation process.  They can be found at these two links:


How Does the Interlock Work in Fairfax County?

More Questions about Ignition Interlock in Northern Virginia.

On previous occasions, I have posted on the related subject of efforts to make every new car alcohol free:

http://www.mcglonelaw.com/news/ignition-interlock-for-every-driver20111110.cfm


Paul Liam McGlone
McGlone Law Firm, P.C.
10513 Judicial Drive, Suite 201
Fairfax, Virginia   22030
703 273-2750
www.mcglonelaw.com


Footnotes from Above Text:

[1] Any person who enters into such program prior to trial may pre-qualify with the program to have an ignition interlock system installed on any motor vehicle owned or operated by him. However, no ignition interlock company shall install an ignition interlock system on any such vehicle until a court issues to the person a restricted license with the ignition interlock restriction.

[2] ROL section amended to add:  or (xiii) travel to and from the facility that installed or monitors the ignition interlock in the person's vehicle. 
[3] The court shall, for a conviction under § 18.2-51.4, a second or subsequent offense of § 18.2-266 or a substantially similar ordinance of any county, city or town, or as a condition of license restoration pursuant to subsection C of § 18.2-271.1 or § 46.2-391, require that such a system be installed on each motor vehicle, as defined in § 46.2-100, owned by or registered to the offender, in whole or in part, for such period of time.
]]> http://www.mcglonelaw.com/blog/virginia%2Dpasses%2Dmandatory%2Dignition%2Dinterlock%2Dfor%2Dall%2Ddui%2Ddwi%2Dconvictions%2Ecfm www.mcglonelaw.com-76666 Tue, 06 Mar 2012 08:00:00 GMT <![CDATA[DUID in Virginia - Driving Under the Influence of Drugs]]> Recent information from the Marijuana Policy Project (MPP) addresses the problem of determining whether a driver is under the influence of marijuana, or whether the marijuana in his or her system is days, or even weeks, old.  Blood testing is the most reliable method of detecting THC levels, but even those tests could lead to the conviction of sober drivers.

Here in Fairfax County, Virginia, DUI drug cases are called "DUID."  This may well be the future of DWI laws.  They are moving towards making cars that won't start if the driver has alcohol on his or her breath, and so eventually they would have to resort to prosecuting more DUID cases in order to keep the money flowing.  (Drivers under the influence of alcohol wouldn't be driving if their car won't start, resulting in fewer DWI charges, resulting in less money for the County.)

In practical terms, most cops don't automatically think "DWI" when they smell marijuana during a traffic stop.  They will usually search the vehicle, find the marijuana, and charge the driver with possession of marijuana.  If there has been an accident, or if the driver is obviously intoxicated, then they might start doing DWI tests.

However, most cops don't realize that the Standard Field Sobriety Tests are designed for alcohol, and they are not automatically "just as good" for investigating other types of cases.

So, if the driver doesn't do so well on field sobriety tests, then the cop will probably make an arrest, and then the driver will have his or her blood drawn.  For marijuana, there is no set "legal limit" like there is for alcohol and a few other drugs.  In Virginia, there are a few drugs that do have set limits, and they are listed right here:

(a) 0.02 milligrams of cocaine per liter of blood,
(b) 0.1 milligrams of methamphetamine per liter of blood,
(c)  0.01 milligrams of phencyclidine per liter of blood, or
(d)  0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood.

For all other drugs, there is no set amount, so you should expect that a good Fairfax County DWI Attorney is going to make it very difficult for the State to prove such a charge. 

]]> http://www.mcglonelaw.com/blog/duid%2Din%2Dvirginia%2Ddriving%2Dunder%2Dthe%2Dinfluence%2Dof%2Ddrugs%2Ecfm www.mcglonelaw.com-65761 Thu, 29 Sep 2011 08:00:00 GMT <![CDATA[DWI Trial Report-- Superbowl Sunday; .13 BAC Dismissed after Alcosensor Ruling]]> I've written before on the importance of pivotal alcosensor evidence in Fairfax County DWI cases.

In this recent case, the Court  file contained a .13 breath test, but the Judge never considered the breath test because we had the case dismissed at the Probable Cause phase of the trial, before the Commonwealth was able to get the breath test into evidence.   Alcosensor (PBT) evidence is pivotal at the Probable Cause phase of the trial, and this case is a great example of a winning Fairfax County DUI trial.   

(Note that the details disclosed on blog are only the facts actually offered in open court, so that no confidential client information is revealed.   Further, we try to avoid mentioning prosecutor or judge by name, since every case has different facts and nobody can predict that the next case will have a similar result).  

Here are some details of how this one unfolded:

Client was stopped on Superbowl Sunday-- more specifically, it was about 1:30 Monday morning.   The officer actually testified that he was out on Fairfax DUI patrol because of the increased scrutiny after the Superbowl.   Officer described weaving within the lane, which he actually called "straddling the lane markers" but on questioning he described it specifically as "tires touched the white lane divider lines on 3 or 4 occasions over a 1 mile stretch".    The officer also testified that the license plates came back as "not in system", suggesting that they were not valid.   In fact, it was a new car and the DMV records were not reflecting the issuance of these tags by the dealer.    So, that was the basis for the stop, and we objected to the stop, asking the Court to dismiss the case for an invalid stop, based on standards applying caselaw to the Fourth Amendment.   

This is often the first opportunity for the defense to ask for a dismissal of the case during a Fairfax County DWI trial, and if the Court finds that the initial traffic stop violates the Fourth Amendment, then the whole Fairfax County DUI case will be dismissed.   This isn't going to happen very often, but it is an important part of the trial, since it forces everybody to take a look at the case from the earliest point, without hearing about roadside tests or the final BAC reading. 

The Court was interested in the limited evidence about driving behavior, but ultimately denied the motion to suppress the stop.  This early ruling was based on the fact that the DMV did not have the tags in the computer, so the officer had a good faith belief that something was wrong when he made the stop.   The judge did indicate that "it was close" and that would help as we moved to the next phase of the trial. 

Next up, the Fairfax County Police Officer testified about the Field Sobriety Tests that he administered to my client.   The tests had a few indicators that are generally seen as signs of impairment, but he also did well on several aspects of the tests.   This is where the officer has to make a decision to make a warrantless arrest, and that decision has to be based on whether he has sufficient evidence to establish "probable cause" that my client was driving while intoxicated (DWI).  

In order to assist the officer in the Probable Cause Decision, Virginia law requires the use of a Preliminary Breath Test (PBT) device in the field, prior to the arrest decision.   The law on the subject (Virginia Code Section 18.2-267) spells out very specific procedures for the use of this device in the field, and generally prohibits the use of it in the Courtroom.

Caselaw, including the Stacy case, allows use of the alcosensor (PBT) evidence in very limited situations, generally when the defense has raised questions about probable cause.   In this Winning Fairfax County DUI trial, the government tried to get in evidence that my client blew .11 on the PBT, but the judge did not allow it because the officer had not complied strictly with the requirements of Virginia Code Section 18.2-267.    Without the alcosensor evidence, it was a short leap for the Defense to argue that there was no probable cause for the arrest.   Without proof of probable cause for the arrest, there would be no way that they could use the final breath test (.13 BAC)  in evidence, and so the Defense gets a dismissal--- Not Guilty! 
]]> http://www.mcglonelaw.com/blog/dwi%2Dtrial%2Dreport%2Dsuperbowl%2Dsunday%2D13%2Dbac%2Ddismissed%2Dafter%2Dalcosensor%2Druling%2Ecfm www.mcglonelaw.com-52666 Thu, 07 Apr 2011 08:00:00 GMT <![CDATA[Free Ride Home Today from SoberRide]]>
Happy St. Patrick's Day! WRAP's SoberRide is offering free rides home today from 4 P.M. to 4 A.M. Call 1-800-200-TAXI or check out their website for more info.
http://www.wrap.org/soberride/
]]> http://www.mcglonelaw.com/blog/free%2Dride%2Dhome%2Dtoday%2Dfrom%2Dsoberride%2Ecfm www.mcglonelaw.com-51134 Thu, 17 Mar 2011 08:00:00 GMT <![CDATA[Drinking to Avoid a DUI]]>
What if I keep a bottle in my car and then drink some after I pull out my keys?   Will that help prevent a DWI conviction in Fairfax County, Virginia?

The theory there is that they can't use a breath test in Court because it is just a measure of alcohol and some of the alcohol was consumed after the driving was done.

So, will it work?    This link is a news item from Ohio where it might not work for this guy.   It says that he took a swig of beer during a traffic stop, but then he failed all of the sobriety tests.

Well, he may be lucky enough to prevent a breath test from coming into evidence at trial.   However, he may win the battle but lose the war.    He might still be convicted of DWI if there REALLY were clear signs of intoxication from the Driving, Field Sobriety Tests, and other behavior.    Now, cops will usually say that a driver failed sobriety tests, but they can't really say that in Court.   They should be limited to specific obvervations about what they saw and let the judge draw the ultimate conclusion as to whether the client was intoxicated.    A skilled Fairfax County DUI Lawyer will always be arguing about all of the things that the client has done that are consistent with sobriety, but the absence of a breath test is not always enough to avoid conviction.

If they do decide to convict the guy, they will have to decide how to sentence him, and whether to give a restricted license, and they may take into account the "Clever" actions that he has taken to avoid having a breath test used against him.

This whole defense aspect of the episode seems to be lost on the journalist in this case, but that is typical of superficial media reports on the important subject of DWI arrest and defense.

]]> http://www.mcglonelaw.com/blog/drinking%2Dto%2Davoid%2Da%2Ddui%2Ecfm www.mcglonelaw.com-50876 Mon, 14 Mar 2011 08:00:00 GMT <![CDATA[Drive Safely Tonight - Virginia State Police Will be Looking for Drunk Drivers]]>

The Super Bowl is just hours away - please enjoy it responsibly!  Virginia State Police are filling the highways with Saturation Patrols tonight - additional troopers whose objective is to stop drunk and aggressive drivers.  If you will be drinking tonight, please appoint a designated driver or call a taxi for a ride home. 


]]> http://www.mcglonelaw.com/blog/drive%2Dsafely%2Dtonight%2Dvirginia%2Dstate%2Dpolice%2Dwill%2Dbe%2Dlooking%2Dfor%2Ddrunk%2Ddrivers%2Ecfm www.mcglonelaw.com-48245 Sun, 06 Feb 2011 08:00:00 GMT <![CDATA[Salvatore Culosi Case Settled with Fairfax County for $2 Million]]> The Salvatore Culosi accidental shooting case has been settled with Fairfax County for $2 Million.

The real story there goes like this:

They went out to serve a warrant on a nonviolent gambling suspect.

More than a suspect, since the cops had been placing bets and dealing with him for a while. 

So, to serve the warrant, they take out the whole swat team and swarm his front yard.  While they are taking him out with no resistance whatsoever, one of the guns accidentally goes off. 

Why did they take a heavily armed SWAT team out for such a simple warrant service?

Because the HAVE a heavily armed SWAT team.    And they have nothing better to do.]]> http://www.mcglonelaw.com/blog/salvatore%2Dculosi%2Dcase%2Dsettled%2Dwith%2Dfairfax%2Dcounty%2Dfor%2D2%2Dmillion%2Ecfm www.mcglonelaw.com-47151 Thu, 20 Jan 2011 08:00:00 GMT <![CDATA[More about Fairfax Marijuana Dismissals Under Section 251]]> Previously, and continuously, I have warned clients in Fairfax County marijuana cases of the downside of a 251 dismissal.  

More recently my friend and Colleague, Jon Katz, offered similar advice on his blog:   Jon Katz discussing 251 Dismissal.

251 Dismissal is also discussed in my recent post on Fairfax Marijuana Defense entitled  Marijuana: Profile of a Fairfax County Possession Case

Beware of Virginia Marijuana 251 Dismissal

All of this discussion is intended to inform clients that there are more options, and simply taking the "251 Deal" without consulting private counsel means that you are pleading guilty to the charge and agreeing to license suspension and probation so that you can hope to have the charge dismissed in the future.   

Paul Liam McGlone
Fairfax Marijuana Defense Attorney ]]> http://www.mcglonelaw.com/blog/more%2Dabout%2Dfairfax%2Dmarijuana%2Ddismissals%2Dunder%2Dsection%2D251%2Ecfm www.mcglonelaw.com-46978 Tue, 18 Jan 2011 08:00:00 GMT <![CDATA[Drunk Proof Cars-- Will Big Brother Save Us??]]> MADD has adopted a slogan that they will Eliminate Drunk Driving and it seems clear that new developing technology will attempt to impose passive alcohol sensors on all drivers. 

These devices follow a variety of proposed avenues to sense the presence of alcohol and deny the owner the ability to start their car.    We already have "blow-and-go" devices for convicted drivers, but our prediction is that the MADD mamas will try to have them put in all cars.   The passive devices won't work without all kinds of side effects and ultimately they will want to have us all blowing into an interlock device to start all new cars.     

More Details about Current Drunk-proof Vehicle Developments are Here ]]> http://www.mcglonelaw.com/blog/drunk%2Dproof%2Dcars%2Dwill%2Dbig%2Dbrother%2Dsave%2Dus%2Ecfm www.mcglonelaw.com-46434 Sun, 09 Jan 2011 08:00:00 GMT <![CDATA[Non-Standardized Field Sobriety Tests]]>
Our news link shows a news report that seems to assume that Mr. Cassidy is guilty, but the dashcam Video tells another story.

The video shows an officer yelling at Mr. Cassidy, trying to perform some very unconventional tests in a pouring rain, and then arresting him even though he does pretty well on the tests on Video.

The Dashcam video is now up on TMZ at this link:

http://www.tmz.com/2010/11/29/david-cassidy-dui-florida-highway-patrol-dash-cam-footage/


Paul Liam McGlone
Fairfax County DWI Attorney
www.McGloneLaw.com]]> http://www.mcglonelaw.com/blog/nonstandardized%2Dfield%2Dsobriety%2Dtests%2Ecfm www.mcglonelaw.com-44258 Tue, 30 Nov 2010 08:00:00 GMT <![CDATA[Operation Shoulder Tap]]> This "Operation Shoulder Tap" press release from the Fairfax County Police sure seems like entrapment to me.  Thank goodness we have such a forward-thinking police force, protecting us from these people who left their houses with absolutely no intent to commit a crime.
 ]]> http://www.mcglonelaw.com/blog/operation%2Dshoulder%2Dtap%2Ecfm www.mcglonelaw.com-36569 Tue, 03 Aug 2010 08:00:00 GMT <![CDATA[Virginia's "Move Over" Law]]> This is a serious situation developing in Virginia and many other states.   Police officers are in the most danger when they are working the shoulders of our highways, and we can expect that the Police and Courts will be zealous in enforcing this relatively new law.

The law, as written in Virginia, has some problems that may make enforcement controversial, but nobody can argue the underlying premise.

In this video we see a faulty application of the law.    It is a video of an accident, but it isn't because the person didn't move over.    The officer is parked on the left side of a road.   Another vehicle is parked in the middle of the one lane road and a car comes whipping around him, onto the shoulder, and hits the cruiser.    This is not a "move over" situation--- it is a one-lane road!
 ]]> http://www.mcglonelaw.com/blog/virginias%2Dmove%2Dover%2Dlaw%2Ecfm www.mcglonelaw.com-34160 Sun, 27 Jun 2010 08:00:00 GMT <![CDATA[Great DWI Trial - Use of Alcosensor Evidence by the Defense]]> I saw 3 interesting DWI trials this week, and the defense won all 3.   The second trial was my own case, but first I'm going to blog about the trial that came first.

Use of Alcosensor Evidence by the Defense!

This DWI trial was handled by a friend of mine in Fairfax County General District Court.

The client was stopped by the officer because the officer claimed that he was weaving within his lane and that he was following too closely.

Counsel first asked the Court to suppress the stop on the grounds that the Commonwealth did not show suspicion of any criminal activity.   The Court heard argument on that, and counsel emphasized that it is not illegal to drive down the road, staying within your lane.   Further, on the issue of following too closely, it was noted that the officer did not offer any testimony about the speed of the defendant's vehicle.

The Court decided to allow the stop because it could be inferred that they were not going "too slow" for the road or else the officer would have mentioned that.   This seemed a bit of a stretch to me, but the Defense had only just begun.

Next, the officer testified about his encounter with the driver once the car was stopped.   The officer smelled alcohol, and there was the usual discussion about "a few drinks".   The field sobriety tests were not too bad.  In fact, the officer's description of the tests was lacking in details.

Then, Counsel asked the Court to review the decision to make a warrantless arrest, and defense counsel asked a few questions of the officer.   This is when he asked the officer about the Preliminary Breath Test (PBT), where his client had blown a .07.

In most cases, defense is objecting to any use of the PBT because it is considered an unofficial breath test, and under Virginia law, it is only used by the officer to make the arrest decision and should not be used in Court to show that somebody is intoxicated.    However, in this case, defense was able to use it to show that the person was not intoxicated, at .07, and ultimately, the court dismissed the case.

In fact, it seemed that there was a later result on the official breath test, but the Court never heard testimony on that result, because the case was dismissed upon suppression of the arrest!   (Nice work, Feragi!)
 


]]> http://www.mcglonelaw.com/blog/great%2Ddwi%2Dtrial%2Duse%2Dof%2Dalcosensor%2Devidence%2Dby%2Dthe%2Ddefense%2Ecfm www.mcglonelaw.com-31299 Mon, 10 May 2010 08:00:00 GMT <![CDATA[Implied Consent Amendments]]>
Virginia legislature is pushing for another Anti-DUI amendment.   This time, they are pushing closer to disregarding the 4th amendment.
 
For years, DUI attorneys have had the ability to exclude blood tests in certain cases if the client was not actually arrested before being taken to a hospital for blood draw.  
 
The complaint by the Commonwealth was that they couldn't physically arrest the person who was hurt in an accident, so they wanted to be allowed to draw blood anyway.
 
These amendments being offered at the 2010 session of the Virginia General Assembly are intended to widen the scope of the implied consent law. 
 
Our implied consent law has always required us to submit to a breath test, or sometimes a blood test, if we are arrested for probable cause for DWI.    In the absence of probable cause, there is no valid arrest, and no duty to take a breath or blood test. 
 
These amendments, proposed in two different versions, attempt to expand the duty to take a blood test to any case where there is probably cause even if they don't actually make an arrest.  
 
The concern of Defense counsel is that they will try to expand the definition of probable cause to include anybody who has alcohol on their breath, if there has been an accident.  
 
Very often, there are no Field Sobriety Tests (due to injury), and nobody has even seen the client drive a car, but Judges are under pressure to find that there is probably cause with very little evidence.  
 
These amendments push closer to the days when every driver who has any alcohol will be considered an outlaw.    The MADD prohibitionists continue to push onward, with very little resistance from anybody interested in fighting for our civil liberties.  
 
]]> http://www.mcglonelaw.com/blog/implied%2Dconsent%2Damendments%2Ecfm www.mcglonelaw.com-27883 Mon, 08 Mar 2010 08:00:00 GMT <![CDATA[Edmonton Oilers Goalie's Extreme DUI Charge May Have Professional Ramifications]]>
Nikolai Khabibulin, goalie for the Canadian Hockey team the Edmonton Oilers, is facing an extreme DUI charge after an arrest in early February.  

While the case is still pending, it is interesting to note that, if he is convicted of DUI, it could have potentially career-changing ramifications.    Canada has the strictest limitations on entry for folks who have a DUI/DWI conviction.   They consider it to be a very serious charge, and foreign visitors are not allowed to enter if they even have a charge pending (Khabibulin is a Russian citizen).  Attempting to enter Canada can be charged as a new criminal violation at the border.  
 
This may present quite a problem for this NHL Goalie recently charged with DWI .
 
]]> http://www.mcglonelaw.com/blog/edmonton%2Doilers%2Dgoalies%2Dextreme%2Ddui%2Dcharge%2Dmay%2Dhave%2Dprofessional%2Dramifications%2Ecfm www.mcglonelaw.com-27882 Mon, 08 Mar 2010 08:00:00 GMT <![CDATA[The Impossibility Defense in Speeding Cases]]>
The Impossibility Defense in Speeding Cases
 
I talk to clients every day about Reckless Speeding cases in Virginia.   One of the most common complaints they have is that the cop must have it wrong because they couldn't go that fast in their car, or they couldn't go that fast on that road.    In Fairfax County Reckless cases, clients often make these claims when they are accused of speeds in the mid 80's.   
 
There are a few big problems with the Impossibility Defense which make it almost impossible to win your case.    First, if you are going to testify, you will do so after the officer.   So, the officer has already testified that they measured you at a specific speed.  
 
The judge will be listening to your testimony to hear how fast you were going.   If you tell him your speed, then he will want to know how you are sure of it, and whether you had your speedometer tested.  
 
If all you have to offer is the Impossibility Defense, then it is like saying "I don't know how fast I was going, but here is why the officer is wrong.".    Even worse, it can have the effect of saying "Even if I was going as fast as possible, I couldn't go that fast".    This doesn't help much, because it sounds like you were going as fast as you could.   
 
Finally, you are left with this logical dilemma:   If the judge believes that it IS possible to drive that fast, then you have a guaranteed conviction because he has already decided that you are wrong!  
]]> http://www.mcglonelaw.com/blog/the%2Dimpossibility%2Ddefense%2Din%2Dspeeding%2Dcases%2Ecfm www.mcglonelaw.com-27347 Thu, 25 Feb 2010 08:00:00 GMT <![CDATA[Medical Marijuana Ruling]]>
Fairfax County Marijuana Defense Attorney Paul McGlone read this article, and is impressed with how this Court handled the difficult situation of a local dispensary selling Medical Marijuana which might be in violation of Federal law.   
 
The local Court in Colorado ruled that the city of Centennial had no right to use Federal law as a pretext for shutting down the dispensary.    Congratulations for the State Court for taking the right action.    This runs against the recent trend where States have been spending their own tax dollars to enforce federal laws, particularly those involving Marijuana and immigration. 
]]> http://www.mcglonelaw.com/blog/medical%2Dmarijuana%2Druling%2Ecfm www.mcglonelaw.com-27016 Sat, 20 Feb 2010 08:00:00 GMT <![CDATA[Tracking DWI/DUI Convictions]]>

This article from a Missouri newspaper is a good example of the misinformation promulgated by the media and law enforcement, regarding DUI enforcement.   DWI enforcement has blossomed into a $Billion Dollar government program, but this article would suggest that they don't have enough funding to keep track of repeat offenders.  
 
The truth is that our Virginia DMV has an accurate record of all prior offenses unless the person has been found not guilty or had his or her case dismissed by the Court due to an illegal arrest or other defects in the proceedings.   If a person has been convicted of 3 DWI's in Virginia, it is not likely that they have a license any more.   
 
With today's technology, the Virgnia DMV keeps track of DUI/DWI convictions, even if they have occurred in another state, and even if they occurred before the person came to Virginia. 

The truth about this article is that some of the law enforcement agencies aren't organized enough to take advantage of the systems that are already in place.   There is already a national database that takes information from about 46 states and keeps track of serious offenses, including DWI.   This is a driver's license database-- not a criminal system database like the FBI has.   However, not all the states have the same computers so their own databases are not compatible with each other-- even within one state. 
 
Probably just as likely, this is another superficial media report, shilling, or the cops who just want more money for their agencies.    If they are letting people drive after 4 DWI's, then they aren't utilizing existing resources --  courts not requiring full record checks, etc.   We don't have that here in Fairfax County, Virginia. 

Paul McGlone has helped many people charged with DWI or DUI in Fairfax, Virginia and is familiar with how the state tracks drunk driving convictions.
]]> http://www.mcglonelaw.com/blog/tracking%2Ddwidui%2Dconvictions%2Ecfm www.mcglonelaw.com-26716 Sun, 14 Feb 2010 08:00:00 GMT <![CDATA[GERD Lawsuit Highlights Medical Issues and Refusal Defense in DWI cases]]>
A lawsuit filed in Western Virginia highlights two of the recurring problems that we see in using breath testing for DWI/DUI cases.  Please click here to read the article about the lawsuit.  

First, there are medical issues, such as the issue of GERD, which can lead to repeated burping, or even to falsely elevated blood alcohol levels on a breath test.    GERD (GastroEsophageal Reflux Disease)  is a common medical ailment which, in simple terms, results in the return of stomach contents, possibly including consumed alcohol, and possibly combining with exhaled breath to be counted along with the lung air that they are trying to measure.

In fact, this is the exact reason that the officers require our clients to wait 20 minutes without belching before they can give a breath test.

The second issue, which arises when law enforcement don't know how to handle the situation, is that the client may be charged with refusal to cooperate with the breath test, even if it is something that is beyond the control of the client, such as involuntary belching.

In either of these often related situations, the Defense may feel that they have the difficult burden of proving the existence of a medical condition that is not always present, and that they have to disprove the allegation that they have refused to cooperate with the administration of the breath test.

 ]]> http://www.mcglonelaw.com/blog/gerd%2Dlawsuit%2Dhighlights%2Dmedical%2Dissues%2Dand%2Drefusal%2Ddefense%2Din%2Ddwi%2Dcases%2Ecfm www.mcglonelaw.com-26696 Sat, 13 Feb 2010 08:00:00 GMT