Month: October 2017

In 2016 alone, 59,000 United States citizens died from an opioid-related drug overdose. Today, statistics indicate that around 90 Americans die each day from an opioid overdose. These alarmingly high rates recently sparked the national dialogue on solving the “deadliest drug crisis in American History.”

Recommending a Nation Public Health Emergency

This past Thursday, President Trump recommended the U.S. Department of Health and Human Services declare a national public health emergency in response to the opioid epidemic. This statement is just one facet of Trump’s response to the national drug crisis. Prioritizing drug enforcement and treatment as one of his key campaign promises, Trump’s recent declaration on the crisis reallocates existing government funding to expand access to treatment programs for mental health and substance abuse in rural areas and makes it easier for the Department of Health and Human services to make temporary appointments of skilled workers for responding to the epidemic. The declaration was met with much criticism–declaring a “national emergency” instead would have allocated additional funds to address the crisis. Trump’s declaration will last for 90 days after which it can be extended.

What Happens Next

Although Mr. Trump’s recent action indicates a rehabilitative and treatment focus on addiction moving forward, his ideas about drug enforcement are not so clear-cut. Even in declaring the epidemic a national public health emergency, Trump maintains that fighting addiction contains a moral dimension. In his speech last Thursday, Mr. Trump described “families ripped apart” by addiction and the need to “liberate our communities from this scourge [opiate addiction].” For Mr. Trump, opioid addiction is not just a threat to public health, but also to the moral integrity of American families and communities.

In the same speech, Trump took on Reagan’s “Just Say No” stance to solving addiction claiming, “The best way to prevent drug addiction and overdose is to prevent people from abusing drugs in the first place. If they don’t start, they won’t have a problem.”

Tough on Drugs or Not?

From the statements in speeches, it is unclear whether or not Mr. Trump’s policy recommendations will take a tough-on-drugs stance when it comes to enforcement. Local communities and rural areas impacted by the epidemic have already set precedent on a treatment-first approach to addressing addiction. Gloucester Police Department in Massachusetts was the first in the country to establish a “help not handcuffs” policy that offers treatment, not arrest for individuals who come to the police department seeking treatment for opiate addiction. Despite offering more access to treatment, Gloucester has yet to see the reduction in drug use they desire.

For now, the national public health emergency declaration will provide national attention to an issue that’s shaped rural American life for the past decade. Ultimately, a solution to the crisis will require sensitive policy making that caters to the individual economic and social needs of the neighborhoods where the crisis is most prominent.

Former Massachusetts State Prosecutors Face Criticism For Work In Farak Case

In 2014, former Massachusetts State chemist Sonja Farak pled guilty to two counts of unlawful possession of a controlled substance, four counts of larceny of controlled substances from a dispensary, and four counts of tampering with evidence. Farak testified in court to consuming laboratory test and police samples of methamphetamine, MDMA, cocaine, LSD, and other drugs. Starting in 2005, Farak’s lab work under the influence at the Amherst state lab likely impacted the outcome of nearly 18,000 convictions. Farak’s misconduct, however, is not unique or isolated to the State of Massachusetts . Annie Dookhan’s 2013 conviction for falsifying and forging scientific tests at the Hinton, Massachusetts lab impacted nearly 40,000 convictions. As of June 26, 2017, the ACLU sites only 23,595 of these original convictions have been dismissed.

Although the exception among lab testing, Dookhan and Farak’s convictions raise questions about oversight in government laboratories. Without close oversight and standardization in labs, are scientific tests as consistently reliable as we think they are? In an article for the Austin Monitor, Cate Malek challenges the admissibility of scientific evidence due to the lack of government oversight. Specifically targeting DNA, Malek suggests the absence of national standards and training guidelines for forensics testing often contributes to the unreliability of lab results nationwide. Nonetheless, scientific tests are almost always the strongest form of evidence in the eyes of a jury.

Failure to Disclose Evidence Causes Backlash

The mass-convictions associated with Dookhan and Farak, however, are more closely associated with the legal response of the Massachusetts Attorney General’s Office. Former state prosecutors, Anne Kaczmarek and Kris Foster recently faced backlash in court for their failure to disclose evidence related to Sonja Farak’s 2014 conviction. The Attorney General’s office withheld crucial mental health evaluations evidencing the extent of Farak’s drug use. Without this crucial information, the court could not determine exactly how many cases Farak’s misconduct influenced.

In response, the Hampden Superior Court claimed, the Attorney General’s Office failed “to disclose…seven pages of Farak’s mental health worksheets” and “to conduct an adequate investigation in 2013 on the nature and scope of Farak’s misconduct.” Ultimately, the court labeled Foster and Kaczmarek’s actions as containing “a depth of deceptiveness that constitutes a fraud upon the court.”

New York Innocence Project Seeking Sanctions

Members of the New York Innocence project have asked the Massachusetts Board of Bar Overseers to impose sanctions on the attorneys for withholding evidence. Kaczmarek now serves as a county assistant clerk magistrate and Foster is general counsel for the Massachusetts Alcohol and Beverage Control Commission.

Regardless of what’s to come of Kaczmarek and Foster, the convictions associated with Karak and Dookhan’s misconduct stand. Most recently, the ACLU claimed that the government has a responsibility to dismiss all convictions associated with Dookhan and Farak. Not only is their testing an unreliable source of evidence, they claim, but the Attorney General’s Office’s wrongdoing holds serious implications for the sentences. The court, however, still holds that these convictions be dismissed on a case-by-case basis. If you or someone you love needs help with their criminal defense, call our firm today! Our professionals are standing by to make sure that you get the help that you need!

D.C.’s firearm laws have been loosened considerably over the course of the last decade. Whereas ten years ago, a D.C. resident could not even own a handgun in his or her home, now a resident can own a handgun and carry it in most public places. Prior to 2008, D.C. had a complete ban on handguns and required an individual to have a license to carry firearms (rifles, shotguns, etc.) even inside his or her own home.

Landmark Case Regarding Rifles and Shotguns

Beginning in 2008 with D.C. v. Heller, as a matter of first impression, the Supreme Court examined an individual’s Second Amendment right to bear arms for self-defense. In this landmark case, the Court struck down D.C.’s long-standing ban on handguns and the requirement that rifles and shotguns be kept bound by a trigger-locking device or disassembled and unloaded. As a result, D.C. law then allowed individuals to carry handguns in their own homes, so long as the handguns were registered. Still, there wasn’t any provision allowing individuals to carry firearms outside of their homes.

Later, in 2014, Palmer v. D.C. held that the D.C. gun registration statute’s prohibition on carrying firearms outside of the home was unconstitutional. D.C. residents were then allowed to obtain a permit to carry a firearm outside of their homes if they demonstrated a “good reason” for self-defense. “Good reason” meant that the individual had a “special need” to carry a firearm that was distinct from the rest of the community. This “good reason” could include having a job that required an employee to transport valuable items or large amounts of cash. Living in a neighborhood with a high crime rate was not a sufficient basis to constitute a “special need” for self-defense under the law. Thus, many D.C. residents felt as though the permit requirements were far too restrictive to the point that it was nearly impossible to obtain a license to carry.

Successful Preliminary Injunction Barring “Good Reason” Requirement

In 2016, Brian Wrenn and the Second Amendment Foundation sought a preliminary injunction barring the enforcement of D.C.’s “good reason” requirement, and failed. Following this case, Matthew Grace and the Pink Pistols, an LGBT group that fights for the Second Amendment rights of sexual minorities, sought the same preliminary injunction and succeeded.

In July of this year, the U.S. Court of Appeals for the District of Columbia combined the appeals from both of these cases and eventually ruled in Wrenn v. D.C. that the “special need” ordinance was unconstitutional. The court’s reasoning was similar to that of the Supreme Court’s reasoning in Heller. In Heller, the Court determined that a total ban on handguns amounted to a categorical deprivation of Second Amendment rights, and that citizens must be allowed to defend themselves against threats faced by the general community. Following this, the Wrenn court held that the Second Amendment must be read to cover a class of citizens with “common levels of competence and responsibility.” In other words, since the general public is entitled to self-defense, and individuals face, on average, the same degree of danger as one another, these individuals must be permitted the same means to defend themselves (i.e. by carrying a handgun). In her dissenting opinion, Circuit Judge Karen LeCraft Henderson argued that the Second Amendment should not be extended outside of the confines of the home.

Contact An Experienced Professional

If you are charged with unlawful possession of a firearm, you could face serious penalties. It is important to understand this recent change in the law. If you are facing such charges, contact the experienced attorneys at Bruckheim & Patel to help you handle your case.

Imagine, you are driving down a busy street. You are following the laws, driving responsibly, and you are not impaired. All of a sudden, a car hits you from behind. You hit your head on the steering wheel, and now you feel strange. When the officers arrive, they believe you are acting in an unusual manner. They force you to undergo Standard Field Sobriety Tests. They determine you failed the tests and arrest you for a DUI.

Across the United States, drivers whom officers believe to be impaired undergo certain exercises called Standard Field Sobriety Tests (SFST). These exercises test a person’s ability to maintain balance, follow instructions, and tests their concentration and memory. While there are many issues with these tests, one of their major flaws is they can be heavily swayed by a person’s physical condition.

Common Concussion Symptoms

According to the Centers for Disease Control and Prevention, common concussion symptoms include: nausea and vomiting, dizziness, difficulty thinking clearly, unusual behavior, dilated pupils, difficulty remembering new information, balance problems, slurred speech, and in severe cases a loss of consciousness. Meanwhile, common symptoms of alcohol intoxication include confusion or unusual behavior, nausea and vomiting, balance problems, slurred speech, dilated pupils, memory problems, and in severe cases a loss of consciousness.

Going back to the previous hypothetical, the driver of the vehicle sustained a concussion from hitting their head on the steering wheel. Due to this head trauma, the driver showed multiple common concussion symptoms. However, officers misconstrued this as evidence of alcohol intoxication, leading them to arrest the driver for a DUI. In the District of Columbia and around the country, this is not an unusual experience.

Symptoms of concussions and alcohol intoxication materialize in very similar ways. Confusion, unusual behavior, and difficulty thinking clearly may be red flags for officers to investigate if a driver is intoxicated. As stated before, officers will have you undergo SFSTs which test for symptoms of intoxication, but these symptoms are also often experienced by those suffering from a concussion or other head trauma.

The Different Field Sobriety Tests

There are three field sobriety tests officers are instructed to do: Horizontal Gaze Nystagmus, Walk and Turn, and the One Leg Stand. In the Horizontal Gaze Nystagmus test, an officer will hold a pen or flashlight in front of your eyes, and instruct you to track the object while they move it back and forth. While you do this, the officer is looking for involuntary movements of your eyes referred to medically as nystagmus, difficulty tracking the object, and dilated, red, and/or watery eyes. A person who has a concussion will exhibit many these signs as well.

In the Walk and Turn test, officers will instruct you to walk a certain amount of steps heel to toe, turn around, and walk back the same amount of steps. In this test, they are testing your balance, concentration, memory, and your ability to follow instructions. The effects of a concussion might inhibit your ability to successfully complete this test as balance and memory issues are common concussion side effects.

And last but not least, the One Leg Stand test evaluates your ability to stand on one leg without using your arms for balance for a certain period of time. As with the Walk and Turn Test, people who have recently suffered a concussion often exhibit balance issues, which might lead them to failing the test.

Previous Court Precedent

These three tests are what officers use to gauge whether or not somebody should be arrested for a DUI, and it is obvious a person with a concussion has an extreme likelihood to fail. While this issue has yet to be litigated in the Supreme Court, it has in a number of high state courts. The Supreme Court of Connecticut in State v. Morelli overturned a guilty verdict due to the effects of head trauma and standard field sobriety tests. The court found the lower court had not properly considered the effects of the defendant’s head trauma when he underwent the tests. In the Court’s ruling they stated, “we agree with … the expert testimony that evidence of a concussion would affect the reliability of the standardized field sobriety tests”.

In the event you are wrongfully arrested for a DUI due to head trauma or otherwise, contact the experienced DC DUI attorneys at Bruckheim & Patel to help. Bruckheim and Patel is one of the preeminent firms in the District of Columbia and has represented hundreds of clients in DUI proceedings including DUI DC first offense. They will be your best shot at achieving the best possible outcome in your particular case.

Below are a few of our success stories with client’s arrested with Driving Under the Influence after an accident. It is important to retain counsel that knows how to fight for your rights and has a history of success.

  • Client charged with Driving Under the Influence after colliding with a telephone pole. Odor of alcohol observed and field tests conducted on client. Evidence from station house was suppressed by defense counsel. Client found NOT GUILTY.
  • Client charged with Driving Under the Influence after hitting a tree with his vehicle. Client was taken to hospital after injuries from the crash and had an admission of drinking two shots. Client found NOT GUILTY.
  • Client charged with Driving Under the Influence after hitting a vehicle in an accident. Client failed field sobriety tests and refused to give a chemical breath sample. Defense counsel was successfully able to keep out HGN results and the refusal from trial due to video preservation issues. Client found NOT GUILTY.
  • Client charged with Driving Under the Influence after hitting a stairwell, had a bottle of tequila in the vehicle, officer observed clues of impairment and was taken to the hospital for treatment. Case dismissed.

When someone is arrested for Driving Under the Influence in the District of Columbia, an officer usually gives them a pink piece of paper entitled “Official Notice of Proposed Revocation.” This Notice tells the driver that his or her D.C. license or right to drive in D.C. will be revoked automatically unless they request a hearing at the DMV Adjudication Services located at L’Enfant Plaza. If you receive the Notice, you should hire a DMV attorney immediately to schedule a hearing so that your driving privileges and/ or license are not automatically revoked.

Notice of Proposed Revocation

At the DMV hearing, the officer who issued the Notice of Proposed Revocation has to appear to present evidence in support of the allegations. The officer has to mark the boxes next to the allegations stating what offenses they believe the driver violated, which are located at the bottom portion of the pink Notice. The common allegation is: operation of a motor vehicle while apparently under the influence of intoxicating liquor or drug, or while impaired by the consumption of alcohol, or while apparently physically or mentally unqualified to operate a motor vehicle by reason of diabetic coma, epileptic, or other seizure. Failure to mark the proper allegations can result in a dismissal for defective notice based on District of Columbia Municipal Regulation § 18-307.3.

Result of the Breath, Urine, or Blood Score

The most common piece of evidence in a DUI case that supports intoxication is the result of a breath, urine, or blood test. If the test result resulted in a Blood Alcohol Content percentage of 0.08% for a breath test or 0.10% for a urine test, this is generally sufficient evidence to prove that the driver was intoxicated pursuant to D.C.M.R. § 18-1034.

Admissibility of the Chemical Test

However, despite what some may think, not all evidence is admissible in DMV hearings. The breath or urine score can only be admitted if the officer testifying is properly trained to administer and interpret the chemical test and was present during the test. If the officer was not present or does not testify that he or she was trained to administer or interpret the test, the DMV cannot accept the score as evidence that the driver was intoxicated.

The D.C. Court of Appeals held in Lister v. England, 195 A.2d 260 (D.C. 1983) that a chemical test (breath, urine, or blood) score can only be admitted as evidence of intoxication if the officer present was the officer who administered the test and is trained to interpret the result. The Court of Appeals explained that they reversed the DMV License Revocation Order that admitted a chemical test result without a qualified officer because “the result of a chemical analysis of blood, urine or breath cannot be received in evidence in a hearing before the Department of Motor Vehicles unless accompanied by expert testimony or a witness qualified to interpret the result, because without benefit of such testimony or resort to the statutory standards the result of the analysis is meaningless.” Lister v. England, 195 A.2d at 262. See also Holt v. England, 196 A.2d 87 (D.C. 1963) (result of a urinalysis was not admissible in administrative hearing without testimony of an expert qualified to interpret such result).

Know The Testifying Officer’s Role In The Arrest

This is very important at the DMV because usually there are three officers involved in a DUI arrest: (1) the officer who pulled the driver over; (2) the officer that administered the field sobriety tests (Horizontal Gaze Nystagmus, Walk and Turn, and/or One Leg Stand); and (3) the officer who administered the chemical test. Often the only officer who shows up to the hearing is either the officer who initiated the stop or the officer who conducted the field sobriety tests. If that is the case, the DMV cannot accept the chemical test score as evidence that the driver was intoxicated.

While it is possible for the officer to present enough evidence without the breath or urine score, the admission of the score is often an automatic win for the government. So, keeping it out using Lister v. England and Holt v. England is certainly a step towards keeping your D.C. driving privileges.

The best way to ensure the most positive possible outcome in your DC DMV case and DMV License Revocation hearing is to hire an attorney, who can cite to the authority and check to make sure that the government and hearing examiners are following all of the correct rules and regulations.

Contact Bruckheim & Patel at (202) 930-3468 to consult with an experienced DC DMV attorney immediately!

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