Attorney Hoover wins a Pennsylvania DUI prescription drugs case.
At The McShane Firm, we are committed to providing the best possible DUI defense in Pennsylvania. Part of that commitment is fighting for our clients using our knowledge of the law and science. An example of this is a recent case won by Attorney David Hoover.
Facts of the Case
Ms. B. was involved in an accident whereby she struck two parked vehicles. Upon arriving on scene, the police officer observed as EMS personnel were providing treatment to Ms. B in the back of an ambulance – the airbag in her vehicle had deployed in her face upon impact with the first vehicle and hit her so hard it knocked her out leading to her hitting the next vehicle. In addition to simply being knocked out, she had a large gash basically between her eyes and was bleeding profusely.
As the officer was observing treatment, he overheard Ms. B tell the medical personnel that she is on a regimen of prescription medication. After hearing this, the officer decides to follow the ambulance to the hospital to request a blood test as a precursor to charging her with a DUI-drugs for driving under the influence of prescription drugs. There were no field sobriety tests, and no DRE evaluation.
The reported results of the tests indicated a litany of prescription medication and trace amounts (i.e. under 5 ng/mL) of THC (∆9 and Carboxy Acid).
Luckily, Ms. B came to the McShane Firm and to Attorney Hoover.
At the suppression hearing, probable cause to arrest and the admissibility of the blood test results were litigated. The Judge ruled that the trace amount of THC and its metabolites were inadmissible. The Judge further ruled that the officer did have probable cause to arrest based solely on Ms. B’s admission to taking lawfully prescribed medication even when coupled with her involvement in an accident of unknown cause or source.
Given such a ruling the Commonwealth was left with attempting to prove a DUID case without test results, no evidence of impairment and only evidence of lawful use of prescribed medication. The Commonwealth and the District Attorney assigned to the case did the honorable thing and decided to withdraw their case.
Chalk up another win for science and the law. Knowledge is power. Find the DUI attorney who has the most knowledge to help you.
PA DUI Attorney Justin McShane has been invited to speak at the highly regarded “Making Sense of Science” Seminar hosted by the National Association of Criminal Defense Lawyers. The title for this seminar is ” Forensic Science and the Law”.
Attorney McShane has been invited to give a lecture entitled “Pharmacology for Lawyers.“ Pharmacology is the study of how the body interacts with different substances, most importantly for a criminal defense lawyer, it is how the body interacts with drugs including alcohol. This is a very important field for lawyers defending DUI and DUI-Drugs cases because much of the argument in these cases revolves around whether or not the driver was impaired by these substances at the time of driving or within a set period of time.
This is an area of expertise for Attorney McShane as he has spent countless hours researching this subject and has even authored a number of research papers on the subject. He has also covered this in a blog series called: Pharmacology for Lawyers.
If you are charged with a DUI, DUI Drugs or other drug related crime and are looking for an aggressive, knowledgeable and experienced lawyer to fight your case, please call PA DUI Attorney Justin McShane at 1-866-MCSHANE.
Recently Gov. Corbett signed a law banning bath salts and other forms of synthetic marijuana and drugs. However, even before the ink dried, the inevitable happened: People made new drugs. From synthetic drugs to exotic plants to cleaners and chemicals, people have found new ways to get high and continue the cat-and-mouse game with the law.
Bath Salts and other drugs are causing problems for the forensic community
New products in works to replace banned bath salts, synthetic pot, salvia
When horror stories about bath salts and synthetic marijuana began circulating, lawmakers in Pennsylvania acted swiftly to ban the so-called fake drugs.
But manufacturers are even quicker.
Today is the first day that brands of bath salts, synthetic pot and salvia are illegal in this state.
By Wednesday, a yet-to-be-named product will be on the shelves of at least one local head shop, promising to have the same effects of synthetic marijuana.
These new drugs create a huge problem for the forensic community. Every chemical has different properties and produces different results on blood tests (see our series on DUI blood testing) and creates a unique spectrum potentially. It takes a great deal of research to establish the the standard of how a chemical should be tested and how it’s instrumental results should look. Currently, many labs are using non-validated methods which can result in false positives, false conclusions, and false convictions.
This is why any case involving new drugs should be handled by an attorney with a strong background in forensic science and in particular analytical chemistry. Whether its a possession case or a DUI drug case, the toxicology reports need to be examined by a defense attorney who specializes in these types of cases. PA DUI Attorney Justin McShane of the McShane Firm is a well respected forensic expert who has lectured at scientific seminars and even publishes a highly followed forensic science blog. Call 1-866-MCSHANE for a free case review and consultation.
Being able to challenge DUI blood evidence effectively is one of the ways The McShane Firm separates itself from the rest of the crowd in Pennsylvania. Our attorneys are expert at exposing the weaknesses in the government’s case and challenging its evidence. DUI blood testing inherently has a number of sources of error that can be found upon careful investigation by a qualified legal expert.
Sources of Error in DUI Blood Testing
- Bad Labs- Under-trained, overworked staff who’s focus is on getting any ” result” rather than getting the correct result. These types of technicians can sometimes skew the results of a toxicology test to support the prosecution when, in reality, the result is not there. This coupled with a lack of oversight and corrective action is a recipe for disaster in a forensics laboratory. There are many examples of this in the news such as the horrible criminal labs in Indiana.
- Contamination- Blood tubes are very sensitive and need to be handled in a very specific way. If there is deviation from these authorized handling procedures, the results become doubtful and any result gathered loses its scientific value. Some common examples of mishandling of blood tubes are:
- No clear chain of custody
- Procedures not documented
- Tubes transported by normal carriers like FedEx
- Blood Tubes stored in non-ideal conditions
- Lack of proper refrigeration
- Shaking of the tubes
- Contamination of the tubes and the blood inside
- Switching of the tubes while in transport
Any of the above can lead to contamination and raise doubts about the validity of the test results.
- Calibration- In a scientific laboratory, the machines and instruments need to be properly maintained and set to ensure they are working properly. Just think about the common bathroom weight scale. There is a small dial on it to calibrate it to zero and if this is not done periodically, it will over or under report your weight. The same is true for high tech scientific instruments. They need to be calibrated properly and because they are dealing with very small amounts, any variance can make a big difference in the end result. This is a very common source of error.
- Mixing up the samples- When the correct procedures are not followed, blunders happen. It is not at all uncommon to see that the crime lab test someone else’s blood sample. This is why defense lawyers need to be very diligent in making sure proper handling and documentation procedures were followed.
- Documentation- Even if the testing was done up to standard, it has no scientific backing without the proper documentation. We call this verification. Without documentation, the results are based on an “act of trust” which is not allowed in court and is against the scientific method.
These are some of the common sources of error that are found in DUI blood tests. These problems are rampant all over the country and even here locally in Pennsylvania DUI cases. If you have doubts about your Pennsylvania DUI blood test then call the PA DUI attorneys at The McShane Firm at 1-866-MCSHANE.
In Pennsylvania DUI cases, blood testing evidence holds a place of great importance because its results are normally seen as accurate and scientific. Prosecutors think that blood evidence is without flaw. This is far from true. In this series, Challenging DUI Blood Evidence, we offer a simple yet comprehensive look at blood testing in DUI cases and how they can be challenged in court. Today we look at Drug Testing.
In DUI cases in PA, blood tests are used to identify controlled substances and prescription drugs.
In all states, you can be charged with a DUI-Drugs while being under the influence of illicit drugs like marijuana and cocaine, as well as common prescription drugs such as Ambien and Xanax. With the list of illicit and prescription drugs continually being added to this list, you can see how testing for drugs is much more complex than for alcohol. Another thing to note is that it is possible for a valid prescription holder taking the correct dosage to be charged with DUID based upon the prosecution’s basic and fundamental misunderstand of these types of cases. This is because under Pennsylvania law, the predetermined limits of what they believe is the correct dosage (misnamed as “the therapeutic range”) is wholly arbitrary without any scientific or medical backing. Testing for drugs requires the utilization of different methods which requires much more expertise than just testing for alcohol.
Normally crime labs first conduct some sort of screening test which is a quick yes/no type test. Screening tests create a high number of false positives and are not meant to used as evidence. Yet, prosecutors try to use it as evidence from time to time. The screening test’s sole purpose is to see if more testing is recommended. Again, in some cases, prosecutors may try to pass these screening tests on as if they were confirmatory tests. This can be challenged by an attorney who knows the details of the different types of testing and can hold the prosecution accountable.
If the screening test yields a positive result, then the sample is most typically tested by Gas Chromatography Mass Spectrometry (GC-MS) or alternatively by Liquid Chromatography Mass Spectrometry (LC-MS). These are both advanced testing methods which require a high level of understanding to properly interpret the instrumentation results. Unfortunately, most crime lab technicians do not hold the requisite qualifications in laboratory sciences or analytic chemistry to do so. Instead, they are hired and minimally trained to be “button pushers” and then placed in positions that require a great deal of knowledge and expertise. They cannot cope. Bad results.
DUI drugs cases are very complex and should be handled by only the most trained and qualified defense attorneys. All of the attorneys at The McShane Firm have gone through extensive training on how to defend DUI drugs cases and Attorney McShane has lectured on the topic extensively. Please call 1-866-MCSHANE if you have any questions on a Pennsylvania DUI drugs case.
The Pennsylvania State Senate has moved to ban bath salts and synthetic marijuana. The bill now awaits Gov. Corbett’s signature to be passed into law. Under the proposed bill, bath salts and synthetic drugs like Spice and K2 will be banned and classified as “Schedule 1″ drugs.
Penalties for Bath Salts and Synthetic Marijuana
PA DUI Attorney Discusses the Ban on Bath Salts
Unless the Commonwealth decides to attach specific penalties to these substances, the penalties for bath salts and synthetic marijuana are:
- Possession with the Intent to Distribute- an ungraded felony with a maximum sentence of up to 5 years in prison and a fine of up to $15,000
- Simple Possession- Up to one year in prison and up to $2500 in fines for a first offense. If it is a subsequent offense then it is up to 3 years in prison with up to $25,000 in fines
- DUI-Drugs- Up to six months in prison, 12 month license suspension and $5,000 in fines for a first offense (see PA DUI Penalties for more details)
Specifically banned under this proposed legislation includes:
Salvia Divinorum; Salvinorin A; Divinorin A; 3,4-Methylenedioxymethcathinone (Methylone); 3,4-Methyenedioxypyrovalerone (MDPV); 4-Methylmethcathinone; CP 47,497 and homologues, 2-[(1R,3S)-3-hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol); HU-210, [(6aR,10aR)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10, 10a-tetrahydrobenzo[c] chromen-1-ol)]; HU-211, (dexanabinol, (6aS,10aS)-9-(hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol); JWH-018, 1-Pentyl-3-(1-naphthoyl)indole; JWH-019, 1-Hexyl-3-(1-naphthoyl)indole; JWH-073, 1-Butyl-3-(1-naphthoyl)indole; JWH-200, (1-(2-morpholin-4-ylethyl)indol-3-yl)-naphthalen-1-ylmethanone; JWH-250, 1-pentyl-3-(2-methoxyphenylacetyl)indole; Psychedelic phenethylamines; 2-(2,5-Dimethoxy-4-ethylphenyl)ethanamine (2C-E); 2-(2,5-Dimethoxy-4-methylphenyl)ethanamine (2C-D); 2-(4-Chloro-2,5-dimethoxyphenyl)ethanamine (2C-C); 2-(4-Iodo-2,5-dimethoxyphenyl)ethanamine (2C-I); 2-[4-(Ethylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-2); 2-[4-(Isopropylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-4); 2-(2,5-Dimethoxyphenyl)ethanamine (2C-H); 2-(2,5-Dimethoxy-4-nitro-phenyl)ethanamine (2C-N); 2-(2,5-Dimethoxy-4-(n)-propylphenyl)ethanamine (2C-P) (Mephedrone); 4-Methoxymethcathinone; 4-Fluoromethcathinone; and, 3-Fluoromethcathinone.
However, banning a substance is one thing, enforcing that ban is another. In reality, do the police have the experience and training to be able to be able to make difference on the street? Do the police crime labs have the correct procedures in place to be able to properly identify these substance? If not (and in my experience they don’t) are we going to see numerous innocent people being charged under these harsh penalties?
Unfortunately, once you examine the problems with the police and the horrible situation at these crime labs you will soon realize how dangerous these harsh laws are for innocent law abiding citizens.
If you are charged with a crime related to bath salts or synthetic marijuana, please call 1-866-MCSHANE to speak with an experienced criminal defense lawyer.
At The McShane Firm we are committed to providing the best DUI defense in PA. This is why we have expanded our team of PA DUI Attorney by adding two talented attorneys Bryan DePowell and Josh Auriemma. Both of them understand the high standards of excellence in DUI defense we stand for at The McShane Firm and they are working hard to become the best DUI lawyers they can be.
PA DUI Attorneys DePowell and Auriemma have completed the ARIDE certification course
Part of being the best is attending advanced DUI training, even those courses designed for police officers. Attending these courses allows us to highlight the shortcomings of the techniques the police use and keep us ahead of them as far as DUI expertise goes. Being highly trained translates to success in the courtroom because our attorneys understand the procedures police officers are supposed to follow and can expose them if they deviate from those procedures.
Recently, Attorneys DePowell and Auriemma attended a certification course in Advanced Roadside Impaired Driving Enforcement (ARIDE) which is a program developed by the National Highway Traffic Safety Administration (NHTSA) with input from the International Association of Chiefs of Police (IACP). The goal of the course is to provide officers general knowledge related to drug impairment. This is an advanced course for police officers and the majority of DUI police officers in PA have not reached this level of certification.
This week, both Attorneys DePowell and Auriemma will be attend drug recognition expert (DRE) training which is the highest training course NHTSA offers for police officers in impaired driving. This course trains officers in the standardized 12-step evaluation DRE protocol used to identified driver impaired by drugs for DUI drugs cases.
If you have questions on DUI drugs and would like to meet with a qualified PA DUI attorney please call 1-866-MCSHANE.
The United States Department of Justice has banned Five Synthetic Cannabinoids including JWH-018 the main ingredient in K2 and Spice. You can expect that Pennsylvania will also ban these substances and attach very severe penalties to them as well. Once they do this, driving under the influence of these substances will also result in a DUI Drugs with it charged at the highest tier under PA DUI law.
You Can be Charged with a DUI drugs for Using K2
Synthetic marijuana products like K2 and Spice have rapidly become popular because they do not produce positive drug tests on normal drugs of abuse screening or confirmation tests. However, just because it will not test positive does not mean you can’t get caught. At the American Academy of Forensic Science meeting as well as the upcoming American Chemical Society meeting, there are many papers, posters and presentations devoted to this current analytical issue. There are still some massive issues in terms of testing for them (standards, glucuronidation, etc.) Also, keep in mind the “Dr. Cop” or the Drug Recognition Expert (DRE) protocol has not yet fully caught up to the differences in terms of psychomotor and pharmacodynamic effect that these “new drugs” have. Proponents of the DRE program (I am not one) are working to update the curriculum.
Synthetic marijuana also has some very harmful and potentially deadly side effects. Jay Schauben, director of the Florida Poison Control Center notes:
It’s a danger to anybody who thinks this is a legal way to get high without being caught. The possible side effects include significant hallucination, cardiac effects, seizures, rapid heart rate, hypertension, severe agitation, passing out, and panic attacks.
However, these reports are anecdotal and not well-researched yet. It is best to not use this drug until all of the research has been conducted.
If you are charged with possession of K2 or other synthetic marijuana products or charged with a DUI drugs in PA please call 1-866-MCSHANE to speak with an expert drug and DUI attorney.
Attorney McShane is a noted expert litigator when it comes to the area of analytical chemistry and forensic science. His commitment to research and study have earned him the respect of experts in both the legal and scientific communities. As a result, Attorney McShane has been invited to lecture at the 241st National Meeting of the American Chemical Society to be held from March 27-31, 2011 in Anaheim, CA. His topic is: False Convictions and Bad Pharmacology: The Danger of the Drug Recognition “Expert” Protocol in Driving Under the Influence of Drug Prosecutions: A call for meaningful validation.
The DRE protocol lacks scientific validity
The Drug Recognition “Expert” (DRE) program is the 12 step National Highway Traffic and Safety Administration (NHTSA) standardized curriculum that is used in DUI drugs cases across the country. This protocol has not been vigorously tested scientifically and validated, to supposedly detect drug impaired drivers after arrest and before there is an analytical chemistry (toxicology) result. The base principles of DRE protocol are the Standardized Field Sobriety Tests (SFSTs) which themselves have not been scientifically validated. It is important to note that the SFSTs were not designed to record or quantify impairment. Despite these limitations, the SFSTs are being used as the decision point for determining impairment in the DRE context claiming to discriminate between impaired and unimpaired drivers for the court. This leads to false convictions based on faulty presumptions about the validity of the DRE protocol.
Being invited to speak at a prestigious seminar like the ACS National Meeting is quite an honor and is a further validation of Attorney McShane’s credentials in DUI science. If you or a loved one is charged with a DUI or a DUI-drugs in PA please call 1-866-MCSHANE to consult with an expert PA DUI Attorney.
Central PA Town Sees Growing DUI Arrest Numbers but is this a Result of Better Enforcement?
I have blogged before about the statistics game police play with PA DUI arrest numbers. An increased number of arrests does not mean that there is an improvement in DUI enforcement because- “More” does not always mean “Better.”
Take the example of the DUI enforcement in Bellefonte, PA for example. The numbers have increased but by their own admissions there are some alarming oversights that need to be addressed.
Drug use boosting central Pa. DUIs
BELLEFONTE, Pa. – Police in this Centre County town made about 25 driving-under-the-influence arrests in 2009.
This year, that many people have been cited for drug-related DUIs alone.
Add that to the arrests for alcohol DUIs, and by the end of the year, the number will likely be pushing 100. By the second week of December, Bellefonte police had reached 93 DUI arrests.
“It is a big jump,” Chief Shawn Weaver said.
He attributes the increase to several things. The department has two new, young, motivated officers working nights who are aware of Bellefonte’s DUI problem.
If you are a Penn State University student accused of a DUI or are someone looking for an experience DUI attorney to represent you in Centre County, please call the DUI Attorneys at The McShane Firm at 1-866-McShane
While many people will no doubt see these statistics as proof of better DUI enforcement, those of us who deal with the police on a daily basis are forced to view this with skepticism. Are these “new, young, motivated” officers properly trained in DUI enforcement? Is it possible that they are arresting innocent people by mistake because of a lack of knowledge and over-zealousness? Are they motivated by DUI arrest numbers and hence guilty of DUI tunnel vision?
The same article states:
Now, all seven Centre County police agencies – including two state police barracks – rely on one trooper at Rockview to do the in-field testing required to arrest someone for driving under the influence of drugs.
Centre County, PA has a population of close to 150,000 and includes Pennsylvania State University which, with an enrollment of over 45,000, is the largest university in PA and the tenth largest campus in the nation. Even with such a large population of young adults who, demographically speaking are more likely to use drugs, Centre County has only one Drug Recognition Expert (DRE)? Is this DRE able to accurately assess every DUI drug case in the entire county? What happens when this officer is not available? Is having only one qualified officer a sign of good DUI-drugs enforcement?
Arrest numbers are not reliable indicators of DUI enforcement and don’t tell the whole story of how many people were actually convicted and how many were falsely arrested. If you are a Penn State University student accused of a DUI or are someone looking for an experience DUI attorney to represent you in Centre County, please call the DUI Attorneys at The McShane Firm at 1-866-MCSHANE.
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