Wednesday, January 9, 2008
Urine Testing
When a person is arrested for a DUI, a chemical test is required to measure the alcohol content in the blood (BAC). The three chemical tests available are: blood, breath, or urine testing. Urine testing refers to the chemical examination of the urine in the detection of drugs or alcohol. Urine testing is generally only given as an option where a person is arrested of driving under the influence of drugs, driving under the influence of alcohol and drugs, but not for merely driving under the influence of alcohol. However, urine tests are given when breath or blood are not available. Urine testing has a wide array of problems and legal challenges because urine tests are generally thought of as the least reliable of the three types of chemical tests available. Even thought the tests are scientifically based, they are all prone to human error and require strict procedures to be followed. Police and technicians routinely fail to follow the required procedures, making test results unreliable.
California Vehicle Code Section 23158 states: "If the test given under Section 23612 (Implied Consent provision) is a chemical test of urine, the person tested shall be given such privacy in the taking of the urine specimen as will ensure the accuracy of the specimen and, at the same time, maintain the dignity of the individual involved."
When the urine test is given, the person is advised to void their bladder, wait 20 minutes and go again. The reality is that this is the least reliable method of chemical testing because of the higher results due to having water levels tested instead of direct blood levels. Water levels are in the system over a longer period of time in the body. And therefore the results 'usually' reflect alcohol that has been in the 'water' levels over a longer period of time, when compared to blood levels. The concentration of alcohol in the urine is approximately 1.33 times the concentration of alcohol in the blood at the same time.
As for drugs, urine tests cannot determine when a drug was used. They can only detect the "metabolites," or inactive leftover traces of previously ingested substances. For example, an employee who smokes marijuana on a Saturday night may test positive the following Wednesday, long after the drug has ceased to have any effect. In that case, what the employee did on Saturday has nothing to do with his or her fitness to work on Wednesday. At the same time, a worker can snort cocaine on the way to work and test negative that same morning. That is because the cocaine has not yet been metabolized and will, therefore, not show up in the person's urine.
A survey by the National Institute of Drug Abuse, a government agency, found that 20 percent of the labs surveyed mistakenly reported the presence of illegal drugs in drug-free urine samples. Unreliability also stems from the tendency of drug screens to confuse similar chemical compounds. For example, codeine and Vicks Formula 44-M have been
known to produce positive results for heroin, Advil for marijuana, and Nyquil for amphetamines.
Blood Tests
Blood Tests
When a person is arrested for a DUI, that person must submit to a chemical test under the "Implied Consent" provision in the California Vehicle Code. Implied Consent, under Section 23612 states that if a person is lawfully arrested for a DUI, they are deemed to have given his or her consent to taking either a blood or breath to determine blood alcohol content (BAC). If drugs are suspected, a blood or urine test may be demanded.
If a person fails to submit or fails to complete the required chemical testing a number of serious repercussions follow, including fines, mandatory imprisonment if the person is convicted of DUI, and suspension or revocation of the person's privilege to operate a motor vehicle. Even if a person refuses to take a chemical test, courts have given leeway to arresting agencies to take the defendant's blood by a "forced blood draw." Therefore, submitting to the chemical test is in the best interests of someone arrested for DUI.
Even where a person takes a breath test, the officer must advise the person of the right to take a blood test in order to retain a sample of blood for later testing by an independent forensic toxicologist. This is a safeguard for the DUI defendant. Tests are fallible, because they are conducted by human beings. Error is not uncommon. If there are improper levels of preservative in the sample, the blood sample can actually ferment, creating alcohol! If the sample does not contain enough anti-coagulant, the blood will clot. Clotted blood is undesirable for testing because it reflects an artificially high blood alcohol level. Independent testing will reveal such instances. Thus, it is to the DUI defendant's best advantage to have his or her blood sample independently tested.
In order to use blood evidence in a DUI case, the proper procedures must be followed, both before the blood is taken and after. The blood must be drawn by a person certified to take blood. The person's arm must be wiped by an alcohol-free wipe. The kit used to draw the blood must contain a vial with both anti-coagulant and preservative, usually in powder form. Once drawn, the blood sample must be shaken in order to equally distribute the anti-coagulant and preservative. The sample must be kept in a controlled environment in order to preserve the quality of the sample. However, there are no guidelines for the proper storage and transportation of the sample. Therefore, it is beneficial in pursuing a DUI defense to identify the "chain of custody" in order to fully understand who had the sample and when.
The procedure most commonly used to test blood samples is called headspace gas chromatography. This testing is based on the scientific principle of Henry's Law which states that at equilibrium the amount of gas dissolved in a given volume of liquid is directly proportional to the partial pressure of that gas in the gas phase. According to Henry's Law, at equilibrium, in a sealed vessel, volatile compounds in the liquid state will be present in the vapor state at a concentration proportional to the concentration in liquid. By sampling this vapor, i.e., the headspace, through a gas chromatograph, the volatile compound may be qualitatively identified and quantitatively measured. A single headspace injection is split into two capillary columns, each exiting to a flame ionization detector. One column is used for quantity, the other for qualitative confirmation. This method has been determined to be the most accurate.
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Possession of Weapons/Explosive Devices
Possession of Weapons/Explosive Devices
California law prohibits convicted felons, violent offenders, the mentally ill, persons with restraining orders and other specified individuals from possessing a gun. This included people convicted of misdemeanor crimes of domestic violence.
Felony Convictions
A felony firearm crime may involve unlawfully carrying a firearm when a felony crime was attempted or committed. It is also a felony firearm crime for a convicted felon to possess a firearm at any time. A person can also be charged in a felony firearm case when they knowingly purchase a firearm for a felon, an offense called "straw" purchasing. Any act of readying a firearm for a crime is also a felony firearm crime
California Penal Code Section 12021 applies to people who have been convicted of a felony, reading in part:
"(a) (1) Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted
to the use of any narcotic drug, who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony."
Domestic Violence
Anyone who has ever been convicted of a misdemeanor crime of domestic violence can no longer legally own, ship, transport, possess, or receive firearms or ammunition and no one can sell or otherwise dispose of a firearm or ammunition to any person knowing or having reasonable cause to believe that the recipient has been convicted of a domestic violence misdemeanor.
California Penal Code Section 12028.5 defines domestic violence, reading in part:
"(2) "Domestic violence" means abuse perpetrated against any of the following persons:
(A) A spouse or former spouse.
(B) A cohabitant or former cohabitant, as defined in Section 6209 of the Family Code.
(C) A person with whom the respondent is having or has had a dating or engagement relationship.
(D) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code).
(E) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
(F) Any other person related by consanguinity or affinity within the second degree."
The U.S. Omnibus Consolidated Appropriations Act of 1997 attaches penalties to a misdemeanor conviction and covers everyone who owns or uses a handgun, including federal, state and local law enforcement officers, police officers, deputy sheriffs, federal drug enforcement officials, customs officers, game wardens, campus police, private police, security guards, warehouse guards, railroad police, prison guards and everyone in any type of law enforcement is covered under the new law. Those who have been convicted of a domestic violence misdemeanor will not be able to lawfully possess or receive firearms or ammunition for any purpose, including using guns in their official duties.
The impact of this law is significant because of the millions of misdemeanor convictions that have been entered across the United States in the past twenty years involving family violence. This prohibition applies to everyone without exception and broadly defines crimes of domestic violence to include cases involving not only current and former spouses, parents and children, but current and former cohabitants, including putative spouses, common law spouses and the children of such persons and persons with whom the wrongdoer shares a child in common.
The broad definition of domestic violence misdemeanor includes all misdemeanors that involve the use, or attempted use, of physical force (e.g., simple assault, assault and battery) if the offense is committed by one of the defined parties. This is true whether or not the State statute or local ordinance specifically defines the offense as a domestic violence misdemeanor. For example, a person convicted of misdemeanor assault, i.e., attempted harm, as opposed to actual physical contact, against his or her spouse would be prohibited from receiving or possessing firearms or ammunition.
The law covers all past misdemeanor offenses. Even if the wrongdoer was convicted of a domestic violence related misdemeanor in 1986, 10 years before the effective date of the new statute, and attempts to buys a firearm on October 10, 2006, because he has been convicted of a spousal abuse crime, he may not lawfully possess firearms or ammunition.
Any gun owners previously convicted of a domestic violence misdemeanor must immediately dispose of all firearms and ammunition in their possession. The continued possession of firearms and ammunition by such people is a violation of law and can subject the possessor to criminal penalties. In addition, such firearms and ammunition are subject to seizure and forfeiture.
Possession of explosive devices
It is a felony to possess explosive devices in the following situations:
To carry any explosive or destructive device on any vessel, aircraft, car, or other vehicle that transports passengers for hire.
To place or carry any explosive or destructive device, while on board any such vessel, aircraft, car or other vehicle, in any hand baggage, roll, or other container.
To place any explosive or destructive device in any baggage which is later checked with any common carrier
The punishment for this crime is imprisonment in the state prison for 2, 4, or 6 years.
California Penal Code Section 12301 defines what an explosive device (aka destructive device) is, reading:
(a) The term "destructive device," as used in this chapter, shall include any of the following weapons:
(1) Any projectile containing any explosive or incendiary material or any other chemical substance, including, but not limited to, that which is commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns.
(2) Any bomb, grenade, explosive missile, or similar device or any launching device therefore.
(3) Any weapon of a caliber greater than 0.60 caliber which fires fixed ammunition, or any ammunition therefore, other than a shotgun (smooth or rifled bore) conforming to the definition of a "destructive device" found in subsection (b) of Section 479.11 of Title 27 of the Code of Federal Regulations, shotgun ammunition (single projectile or shot), antique rifle, or an antique cannon. For purposes of this section, the term "antique cannon" means any cannon manufactured before January 1, 1899, which has been rendered incapable of firing or for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade. The term "antique rifle" means a firearm conforming to the definition of an "antique firearm" in Section 479.11 of Title 27 of the Code of Federal Regulations.
(4) Any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any launching device therefore, and any rocket, rocket-propelled projectile, or similar device containing any explosive or incendiary material or any other chemical substance, other than the propellant for that device, except those devices as are designed primarily for emergency or distress signaling purposes.
(5) Any breakable container which contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for the purpose of illumination.
(6) Any sealed device containing dry ice (CO2) or other chemically reactive substances assembled for the purpose of causing an explosion by a chemical reaction.
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