Wednesday, June 12, 2013

CDPHE Official Featured in AG Report Chief Witness for New Per Se THC Standards for DUI

It is important to note that one of the chief witnesses supporting the new per se THC standards for DUI-MJ cases is the same Colorado Department of Public Health and Environment supervisor severely criticized in the recently-released Attorney General report which revealed serious problems with the CDPHE lab and its testing of blood samples in criminal cases. 

Despite much evidence to the contrary, former CDPHE lab supervisor Cindy Burbach has testified as an expert favoring legislation that establishes 5 ng/ml of THC as a presumptive level for impairment in DUI cases involving marijuana use.  In fact, the majority of scientific experts believe that a baseline standard for driving impairment caused by THC cannot be established given the wide and varied effects, and degree thereof, of THC on individual persons.  Simply put, while alcohol affects the vast majority of people in a very similar manner and degree, THC, the active chemical in marijuana, does not.

Given the grave questions about Ms. Burbach raised in the recently-release AG report, including her oft-expressed bias for the prosecution in DUI cases, it is our belief that the General Assembly needs to seriously revisit this issue in its next session and review the scientific evidence in light of the revelations about Ms. Burbach and the science behind establishing a baseline standard for THC impairment.

No reasonable person favors or wishes to endorse/protect impaired driving.  But the imposition of medical/physiological legal standards subjecting people to criminal liability that are not supported by scientific fact/study/research are de facto arbitrary and capricious, and thus unconstitutional.

Colorado Supreme Court: Police Detention of Car for Dog Sniff Without RS Illegal

Although recent Colorado case law has established that police can detain a person to conduct a dog sniff for contraband, provided that they have reasonable, articulable suspicion of such, the Colorado Supreme Court has recently made it clear that any detention must be justified by reasonable suspicion actually necessitating the dog sniff itself.

In People v. Mason, decided June 3, the defendant was stopped for failing to signal properly and failing to come to a complete stop at a stop sign.  Even after the driver was found to be driving under suspension as well and issued a traffic citation, he was not given back his identification and detained because a fellow officer informed officers on scene that the driver may be involved in drug trafficking.  The driver was detained until a canine unit arrived and conducted a sniff of the vehicle, which revealed the presence of controlled substances.

Both the trial court and the Supreme Court held that the reasonable suspicion that justified the stop and detention of the driver ended once he was cited for the driving violations, and that the inarticulated suspicions of another officer that the driver was possibly involved in drug trafficking was insufficient to justify further detention of the driver once he was cited.

Simply put, as long as law enforcement officers retain a driver's identification and other legal documents during a traffic stop, that driver is seized for purposes of the Fourth Amendment, and that continued seizure is only justified if the officer has reasonable, articulable suspicion that the driver is involved in criminal activity that extends beyond mere traffic violations for which he/she was stopped.

Even traffic stops implicate the Constitution.  It is important to have the assistance of an experienced attorney to assess whether the conduct of law enforcement officers was proper.

AG Report Details Serious Problems with CDPHE Testing, Begging the Question: When Did the DA's Know?

The Colorado Attorney General has disclosed a Colorado Department of Public Health and Environment (CDPHE) personnel lab evaluation that was completed on March 18, 2013. The Colorado Criminal Defense Bar (CCDB) received this from the Attorney General just prior to 5 pm on Friday, June 7, 2013.  The investigation report was also sent to Governor Hickenlooper’s office, all Colorado District Attorney offices, and the Public Defender’s office.

The contents of the report describe a systemic problem at the CDPHE laboratory and is clearly exculpatory evidence for all DUI and criminal cases involving the CDPHE laboratory for the time periods described in the report and potentially a much greater timeframe. Of great concern is the timing of this disclosure and the source of the information. The information was provided by the Attorney General and not from any of the District Attorney offices that prosecute DUI cases.

It is unknown at this time when prosecutors became aware of this information and what information had been disseminated to prosecutors. Exculpatory evidence and information is required by statute and case law to be disclosed to criminal defendants. Failing to disclose exculpatory evidence can cause the government to be sanctioned by a court which can include the suppression of evidence, or in the case of severe violations, complete dismissal of the criminal case.

The Attorney General admits that the laboratory report contains what could be “mitigating evidence” that affect cases where the CDPHE lab was or is currently involved. The CDPHE has responsibility for the forensic testing of chemical samples used in the prosecution of DUI and other criminal cases.  The scope of this disclosure is far reaching and confirms what many members of the CCDB have long suspected concerning oversight, management and forensic testing at the CDPHE laboratory.

It is important to note that many defense attorneys and legal professionals have fought for this information for years, and this is the evidence that shows what we have been seeking has been there all along. Without the concerted efforts of the several dedicated defense attorneys and other legal professionals mentioned above, many more persons charged with DUI and similar offenses would continue to suffer under these abuses.
For the entire AG report: Click here for report