Even though everyone in the DC government, from the DC Council to the prosecutors at the Office of the Attorney General, knows that alcohol in the urine has a “loose correlation” to intoxication, that urinalysis is unreliable, people are still regularly prosecuted and convicted of driving under the influence (DUI) base on their urine scores.
Back in June of 2011, DC Chief Toxicologist Lucas Zarwell of the Office of the Chief Medical Examiner, stated under oath to the DC Council that urine testing cannot reliably determine impairment or blood alcohol levels. In response to a question from council member Phil Mendelson, Mr. Zarwell testified as follows:
MENDELSON. How accurate is urine testing for measuring blood alcohol content?
ZARWELL. It’s not.
Posted in Criminal Law, DUI
Tagged DC, District of Columbia, DUI, DWI, Evidence, Jury Trials, OWI, Pre-trial, Scientific Evidence, Trial, Trials
I am working on an appeal from a DUI conviction. I enjoy reading other lawyers’ trial transcripts seeing what works and doesn’t and coming up with ideas for my own trials. In DC, first offense DUI defendants are not entitled to a jury trial, which can be frustrating as many judges will accept what police officers say as gospel, even when obviously “shading the truth” (that’s just a nice way of saying lying). Rarely, however, do I see an officer make it so obvious as the following when responding to questions about the procedures he followed in giving the Field Sobriety Tests:
A. Are we going to go back and forth with another smoke screen? . . . You know, we’re going to go back and forth with these smokescreen questions. I’m just going to tell you I don’t recall.
If you are an immigrant here in the US with temporary protected status (TPS), you will lose this status if you are convicted of two misdemeanors. INA §244(c)(2)(B). And even if you have been in the US a long time and have US citizen children, you will not be allowed to stay unless your citizen (or LPR) children (or spouse or parents) would suffer “extreme and exceptionally unusual hardship.” This form of relief is called “non-LPR cancellation of removal,” and is extremely difficult to qualify for.
Often for the first offense of something like DUI, defense lawyers will advise clients to take a deal for an “alternate disposition” not resulting in any jailtime. For example, in Maryland we have a disposition called “probation before judgment” (PBJ), which is not considered a conviction under state law. Md. Crim. Proc. §6-220(g)(3). The only problem is that in the immigration context, conviction is defined by federal law, not state law. INA §101(a)(48). Under federal law, a conviction includes some finding or admission of guilt or facts and “some form of punishment,” including a suspended sentence and/or fine. US v. Zamudio, 314 F. 3d 517, 522 (10th Cir. 2002). To avoid a conviction, you would have to avoid imposition of any suspended sentence or fine. So even though the defense lawyer tells you that you are getting off relatively scott-free, with some vague warning of immigration consequences, those immigration consequences need to be considered carefully. If you have TPS, you can’t get a second conviction for anything.