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  #1  
Old 07-12-2009, 04:41 PM
FoieGrasIsEvil FoieGrasIsEvil is offline
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How Is Marijuana DUI Proveable?

My wife is facing a DUI charge in Kentucky for marijuana. We live in bordering Indiana.

To wit, she was driving to go just past Louisville to meet up with our BIL to pick up her daughter whom were coming up from Tennessee (meeting halfway).

Anyway, she got pulled over for speeding. The cop smelled marijuana in the car, even though my wife hadn't smoked any that day. What she did do was forget that she put a half-burned joint into her open cigarette pack and had taken it with her.

Anyone that's ever smoked pot knows how much a partially burned joint reeks, especially to a trained nose like a cop's that's looking for it.

So, she was given field sobriety tests, which she passed. She had, remembering the incriminating dope in her cig pack upon being pulled over, put the pack into her pocket. They searched the car with a drug dog and didn't find anything. When they asked her if she had anything, she told them no. Upon searching her person, they discovered the joint.

They then put her under arrest, telling her that if she hadn't lied to them they would have just given her a possession ticket, a speeding ticket, and sent her on her way. Really? WTF?

Instead, she had to spend a night in jail and is now being charged with DUI as well. She has court tomorrow and plans on pleading not guilty to the DUI charge, but guilty to speeding and possession. We also cannot afford an attorney, and she is going to ask the court to appoint one to her.

They did administer a urinalysis once she was taken to the police station.

My question is (since I can't get a definitive answer googling around) how are they going to prove DUI when they have no evidence other than possession and the results of a piss test? How is a piss test going to tell them whether she was impaired or not?

What's the dope (hee-hee)?
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  #2  
Old 07-12-2009, 05:02 PM
stpauler stpauler is offline
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Might be bad, I can't find if this passed or not:

Quote:
March 9th, 2009

Senate Bill 5, an act to criminalize anyone who operates a motor vehicle with any detectable level of marijuana in their blood, was recently approved by the state Senate and is now before the House of Representatives. It is possible that members of this Committee are planning on voting on this measure TOMORROW!

If passed, Senate Bill 5 would mandate criminal penalties for any person who operates a motor vehicle with any measurable level of THC in their blood. This proposal would improperly impact cannabis consumers because THC can remain detectable at low levels in the blood of daily marijuana users for up to 1 or 2 days after past use. In the case of chronic smokers, THC may be detectable in the blood for even longer periods of time.
Source
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Old 07-12-2009, 05:04 PM
FoieGrasIsEvil FoieGrasIsEvil is offline
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Quote:
Originally Posted by stpauler View Post
Might be bad, I can't find if this passed or not:


Source
Thanks, I saw that and wondered myself if that (bad) law had passed or not. Apparently it isn't the first time this law had made it's rounds in the Kentucky Senate.
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Old 07-12-2009, 05:58 PM
Hirka T'Bawa Hirka T'Bawa is offline
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Quote:
Originally Posted by FoieGrasIsEvil View Post
My question is (since I can't get a definitive answer googling around) how are they going to prove DUI when they have no evidence other than possession and the results of a piss test? How is a piss test going to tell them whether she was impaired or not?
First, IANAL, what I am about to say is an educated guess, but should not be taken seriously. Get your own lawyer.

I do not know exactly how the DUI law reads in your state, however a urinalysis tests for the metabolites of Delta-9-THC, not the actual drug. As such, as far as I'm aware there is no way for them to prove that she was under the influence at the time of the arrest, they can only prove she was under the influence sometime in the past 30 days.

Also, here is what the Department of Justice's web site says about the scheduling of Delta-9-THC:

Quote:
(d) Hallucinogenic substances. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation (for purposes of this paragraph only, the term "isomer" includes the optical, position and geometric isomers):
And...
Quote:
(30) Tetrahydrocannabinols 7370

Meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant, or in the resinous extractives of such plant, and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant, such as the following:

-1 cis or trans tetrahydrocannabinol, and their optical isomers
-6 cis or trans tetrahydrocannabinol, and their optical isomers
-3,4 cis or trans tetrahydrocannabinol, and its optical isomers

(Since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical designation of atomic positions covered.)
The way I read this, the metabolites of Delta-9-THC isn't scheduled, so is not against the law.

So, I gather if you have a good lawyer, they would make the state prove that she was high at the time of the arrest, since she wasn't, they wouldn't be able to prove it, and would only be able to prove the possession charge. But then again, IANA Lawyer, so what the hell do I know?


Quote:
Originally Posted by stpauler View Post
Might be bad, I can't find if this passed or not:


Source
The summary of that bill reads:
Quote:
Amend KRS 189A.010 to establish a per se violation of the DUI statute if the driver has at least a certain amount of a controlled substance in the blood; create a defense if the person took the controlled substance in compliance with a valid prescription; reduce the required alcohol concentration for an aggravating circumstance from 0.18 to 0.15; amend KRS 189A.105 to lower the alcohol percentage from 0.18 to 0.15 for increased penalties; amend various other statutes to conform.
So, that means if my reasoning from above is correct, they won't be able to prosecute people who have partaken of marijuana.
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Old 07-12-2009, 06:09 PM
Stringer Stringer is offline
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IANAL but a good lawyer should be able to get this reduced to possession alone.
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Old 07-12-2009, 06:22 PM
Kimmy_Gibbler Kimmy_Gibbler is offline
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Perhaps you've already seen it, but this article appears to be a decent introductory synopsis of DUI prosecutions in Kentucky. The most relevant portion to your wife's predicament would be the following:

Quote:
You can be prosecuted for a DUI involving drugs even where a physician prescribes the drugs. Generally these cases often involve "other" substances (marijuana, cocaine, heroine, etc.) in the driver's blood system. The prosecutor is required to prove impairment caused by the drugs in your system. Mere proof of the presence of substance or its "metabolites" is not sufficient to render a conviction.

Beyond the DUI penalties set forth above, Kentucky law has other more punitive statutes for possession of drugs. A "possession" offense may be committed by a person driving a car, or by a person not operating a car. However, a person driving a vehicle may face both the DUI offense AND the possession offense. These "possession" statutes are generally felonies, except where less than eight ounces of marijuana are involved.
So perhaps there is some room to avoid conviction for DUI of marijuana. I imagine the PD will work out a plea bargain--probably something like guilty on the speeding violation and the possession charge in exchange for dropping the DUI count. Less than ideal, but if this is a first offense, hopefully the punishment will be minimal. Good luck.

Last edited by Kimmy_Gibbler; 07-12-2009 at 06:22 PM..
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Old 07-12-2009, 06:22 PM
FoieGrasIsEvil FoieGrasIsEvil is offline
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Thanks guys. I love this place.
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Old 07-12-2009, 06:29 PM
FoieGrasIsEvil FoieGrasIsEvil is offline
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Quote:
Originally Posted by Kimmy_Gibbler View Post
Perhaps you've already seen it, but this article appears to be a decent introductory synopsis of DUI prosecutions in Kentucky. The most relevant portion to your wife's predicament would be the following:



So perhaps there is some room to avoid conviction for DUI of marijuana. I imagine the PD will work out a plea bargain--probably something like guilty on the speeding violation and the possession charge in exchange for dropping the DUI count. Less than ideal, but if this is a first offense, hopefully the punishment will be minimal. Good luck.
Thanks. This is a first offense. I am pissed about the cops playing that "Well, if you wouldn't have lied to us, we would have let you go with a possession ticket" card.

To me, that is just bullshit. So my wife, whom was unimpaired at the time of her arrest, had to spend the night and part of the next day in jail, I had to post bond with a fucking credit card, and then go drive an hour and a half away from home to go pick her up (this is after I had to drive down to where my car was along I-71 and call AAA to tow my the car, which she was driving, so it wouldn't be impounded...it was JUST within the 100 mile limit).

So supposedly because she lied, they charged her with DUI, even though she passed the field sobriety tests? Give me a break.
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Old 07-12-2009, 06:40 PM
Richard Parker Richard Parker is offline
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If my wife were facing felony charges, I would seriously consider getting her a paid lawyer instead of a PD. The Kentucky public defender system is in very bad straits. These poor guys are so underpaid, they're doing things like delivering pizzas to pay the rent. I wouldn't feel at all confident that her case will be properly defended. If they persist on the DUI, I would think twice. Even if you're right on the law, that isn't always enough.

You said you have a car and you obviously have a computer (and pay for internet). That's two assets you could sell or use to secure a loan.

This is not legal advice, IANYL, etc.

Last edited by Richard Parker; 07-12-2009 at 06:42 PM..
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Old 07-12-2009, 06:48 PM
Oakminster Oakminster is offline
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Proving DUI other substance is easier than one might think. The arresting officer will testify to the traffic violation that caused the stop. He'll then testify that he detected a strong odor of marijuana coming from the car. He'll probably also add that he observed blood shot eyes, slurred speech, excessive nervousness, and other physical details commonly associated with marijuana use/effects. He will testify that in his opinion, based on his experience and training, she was impaired while driving a vehicle. Cops that are trained in drug recognition/awareness make excellent witnesses. The fact that the driver had marijuana in her possession, lied about it, and tested positive for marijuana is also admissable, and the court may draw such inferences as it deems appropriate. There may also be video evidence available. That's enough to convict.

Last edited by Oakminster; 07-12-2009 at 06:52 PM..
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Old 07-12-2009, 06:58 PM
Kimmy_Gibbler Kimmy_Gibbler is offline
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Quote:
Originally Posted by Richard Parker View Post
If my wife were facing felony charges, I would seriously consider getting her a paid lawyer instead of a PD. The Kentucky public defender system is in very bad straits. These poor guys are so underpaid, they're doing things like delivering pizzas to pay the rent. I wouldn't feel at all confident that her case will be properly defended. If they persist on the DUI, I would think twice. Even if you're right on the law, that isn't always enough.

You said you have a car and you obviously have a computer (and pay for internet). That's two assets you could sell or use to secure a loan.

This is not legal advice, IANYL, etc.
I think there's an ill-informed prejudice against PDs (and, no, I am not one myself). No, you won't ever make as much as an attorney at Skadden or Cravath, but most PDs spend the great majority of their professional time defending precisely these kinds of cases and dealing with the exact same attorneys who will be prosecuting this case. I rather doubt that the private practice attorney F.G.I.E. could otherwise hire, at the possible expense of his computer and car(!), would have these bona fide practical advantages.
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Old 07-12-2009, 07:24 PM
Richard Parker Richard Parker is offline
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Quote:
Originally Posted by Kimmy_Gibbler View Post
I think there's an ill-informed prejudice against PDs (and, no, I am not one myself). No, you won't ever make as much as an attorney at Skadden or Cravath, but most PDs spend the great majority of their professional time defending precisely these kinds of cases and dealing with the exact same attorneys who will be prosecuting this case. I rather doubt that the private practice attorney F.G.I.E. could otherwise hire, at the possible expense of his computer and car(!), would have these bona fide practical advantages.

Don't get me wrong. Public defenders are heroes. And the majority are damn fine lawyers. Everything you said above is perfectly true. The one thing you're neglecting, and it is a pretty major thing, is that in many jurisdictions including Kentucky, these guys have a hundred more cases than the guy in private practice. Pound-for-pound, I'd put my faith in a PD over a private criminal lawyer every day of the week. But when the PD has 150 cases and the private attorney has six, well, I'd think twice about the value of my car.
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Old 07-12-2009, 07:35 PM
Richard Parker Richard Parker is offline
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The following is from the public defender website:

Quote:
With 483 cases per year, defenders have only 3.8 hours to spend on each case, including
some cases that are complex and of necessity time consuming, including capital and other
violent felonies. Yet, in each case defenders are expected to do the following at a
minimum:
♦ Interview the defendant
♦ Review the charging documents
♦ Go to court
♦ Investigate
♦ File motions
♦ Try the case or resolve the case through negotiations
♦ Participate in sentencing

It is clear that 3.8 hours is not sufficient to provide an adequate defense to DPA’s clients.
I mean, when they're telling you that they cannot provide adequate defense to their clients, that's a bad sign.

Last edited by Richard Parker; 07-12-2009 at 07:36 PM..
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Old 07-12-2009, 07:45 PM
FoieGrasIsEvil FoieGrasIsEvil is offline
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Aren't PD's regularly practicing lawyers that are on some kind of rotation? Meaning that they aren't PD's by choice, but as a way of establishing themselves or adhering to some kind of a statue that requires them to serve the needy public pro bono?
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Old 07-12-2009, 08:32 PM
Richard Parker Richard Parker is offline
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Quote:
Originally Posted by FoieGrasIsEvil View Post
Aren't PD's regularly practicing lawyers that are on some kind of rotation? Meaning that they aren't PD's by choice, but as a way of establishing themselves or adhering to some kind of a statue that requires them to serve the needy public pro bono?
No. A public defender is someone who serves full-time as a defender for the state. In some jurisdictions, there is still no public defenders office. In those places, judges will appoint private attorneys to do the job.
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  #16  
Old 07-12-2009, 09:59 PM
ivn1188 ivn1188 is offline
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How did they search your wife? What was their probable cause? The search itself sounds questionable.
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Old 07-12-2009, 10:11 PM
bonitahi bonitahi is offline
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The cop SMELLED pot. Search is then allow. He had just cause.
Per SCOTUS...somewhere.
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Old 07-12-2009, 10:17 PM
ivn1188 ivn1188 is offline
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Originally Posted by bonitahi View Post
The cop SMELLED pot. Search is then allow. He had just cause.
Per SCOTUS...somewhere.
No. The dog didn't pick up the pot on her, and there was none in the car. That should negate the cop's claim that he smelled it. (My guess is the wife looks like a potsmoker.)

I think the search is iffy.
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Old 07-12-2009, 10:20 PM
Richard Parker Richard Parker is offline
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Even if he had PC, what is the warrant exception? Could be a search incident to arrest, I suppose, even though he claimed he didn't plan to arrest her until he found the pot. I'm sure the lawyer will look into all of this.
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Old 07-12-2009, 10:23 PM
Crawlspace Crawlspace is online now
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Originally Posted by Oakminster View Post
He will testify that in his opinion, based on his experience and training, she was impaired while driving a vehicle. Cops that are trained in drug recognition/awareness make excellent witnesses.
Which is unfortunate because many studies show that they are not very good at detecting impairment at all, and certainly not much better than the average Joe. Link
Quote:
All three of the subject groups studied– social drinkers, bartenders, and police officers– correctly judged targets’ levels of intoxication only 25 percent of the time.
One would wonder why the cops opted to do a urine test, which only indicates use within the past few weeks, rather than a blood test which is a much better gauge of current intoxication.
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Old 07-12-2009, 10:23 PM
ivn1188 ivn1188 is offline
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Well the SC alows warrantless searches of autos, and some states have extended to people, but the dog search throws things into doubt. I am sure the lawyer will look at it as well, but it's annoying.
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Old 07-12-2009, 10:24 PM
Richard Parker Richard Parker is offline
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Originally Posted by ivn1188 View Post
Well the SC alows warrantless searches of autos, and some states have extended to people....
Eh? States cannot extend the auto exception to people. That was rejected in Di Re. Or so I thought.
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Old 07-12-2009, 10:38 PM
ivn1188 ivn1188 is offline
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It's not an exception. If I smell marijuana smoke and see it coming from your vest pocket, I can search the pocket. Or if I see the outline of a crackpipe.

But I can't find anything on google about anything other than auto searches, and I'm not going to log into westlaw and look.
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Old 07-12-2009, 10:50 PM
Richard Parker Richard Parker is offline
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I disagree, but I think it's probably best to not argue this one out given that these are live facts. Hopefully the OP's wife will speak to a competent lawyer before making any legal decisions. Good luck.
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Old 07-12-2009, 10:57 PM
IAmNotSpartacus IAmNotSpartacus is offline
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OP may want to check with the local chapter of NORML. They may provide some pro bono representation if they think the case has legs.
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Old 07-12-2009, 11:06 PM
Kimmy_Gibbler Kimmy_Gibbler is offline
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This message is mostly directed at ivn1188 and Richard Parker, I make no claim as to its materiality in FoieGrasIsEvil's wife case.

Here (PDF) is a 2003 Kentucky Court of Appeals case where the aroma of marijuana alone permitted warrantless entry into appellant's home. It holds that Kentucky law has a plain smell analogue to the plain view exception. Thus, plain smell gives rise to the probable cause needed to activate the automobile exception and the reasonable suspicion needed to license a Terry stop and frisk.

It's a pity the speeding didn't occur in your home state of Indiana, there, in Indiana v. Holley (PDF), the Indiana Court of Appeals was far more exacting in terms of what the state must show to survive a motion to suppress.

Note: I am not your lawyer and this message is for general information purposes only. Nothing in this message is to be considered as either creating an attorney-client relationship or as rendering of legal advice for any specific matter. You are responsible for obtaining such advice from your own legal counsel. No reader should act or refrain from acting on the basis of any information contained in this message without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.
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Old 07-12-2009, 11:09 PM
Richard Parker Richard Parker is offline
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Quote:
Originally Posted by Kimmy_Gibbler View Post
Thus, plain smell gives rise to the probable cause needed to activate the automobile exception and the reasonable suspicion needed to license a Terry stop and frisk.
I do not doubt that proposition. I just question whether the passenger of a car is subject to the automobile exception, and question whether a Terry frisk could legitimately find a joint in a cigarette case.

Last edited by Richard Parker; 07-12-2009 at 11:10 PM..
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  #28  
Old 07-13-2009, 10:58 AM
bonitahi bonitahi is offline
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The cop smelled marijuana in the car. The woman got out of the car.
The dog smelled (smelt?) inside the car and did not find pot.
Dog did not smell her.

The woman had glassy eyes, spoke incoherently and drove erratically
(the cop would say). By smelling the pot why then does the cop not have
within his-her rights, and duty, to have her empty her pockets and purse?

Smelled pot...not in car...maybe on her? Legal right to search her. Pot found.
She's busted. Correct?
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Old 07-13-2009, 11:25 AM
gonzomax gonzomax is offline
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The cop will say whatever he has to ,to convict her.
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Old 07-13-2009, 11:35 AM
Richard Parker Richard Parker is offline
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Originally Posted by bonitahi View Post
By smelling the pot why then does the cop not have
within his-her rights, and duty, to have her empty her pockets and purse?
As a general matter, a search requires both probable cause and a warrant. So if a police officer makes a search without a warrant, he needs some exception to the warrant requirement. One such exception is the plain view doctrine, which has been expanded in some states to include plain smells.

In order for a state to apply the plain smell doctrine in this way, their courts have to decide both that the plain smell doctrine applies to people (as well as cars or homes) and that the smell of drugs constitutes exigent circumstances justifying an immediate search. Some states have taken both steps, and others haven't; some don't yet recognize plain smell for PC that a person has contraband, and some that have haven't recognized it as an exception to the warrant requirement (e.g. the smell is PC for a warrant, but does not justify a warrantless search).
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Old 07-13-2009, 01:00 PM
NicePete NicePete is offline
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What county were you in? Jefferson? Shelby? Bullitt? It could make a difference.
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Old 07-13-2009, 01:20 PM
JerseyFrank JerseyFrank is offline
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I'm surprised no one has suggested giving up the pot habit for a while and use that money to hire a lawyer. Maybe pot is just that inexpensive?
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Old 07-13-2009, 02:23 PM
FoieGrasIsEvil FoieGrasIsEvil is offline
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Originally Posted by gonzomax View Post
The cop will say whatever he has to ,to convict her.
Yeah. She got back from court a little while ago. The judge wouldn't let her plea without getting a lawyer, so it's been continued.

The fuck all is that they read the officer's arrest report in court and the officer stated that she failed all her field sobriety tests, had extremely bloodshot eyes and that "she couldn't even stand up straight"!!!!!

This is a HUGE pile of bullshit and we are really upset about it. Even if she had been smoking, which she hadn't, "not being able to stand up straight" just isn't on the menu. My wife has smoked for a long time, and it really is more of a calmative than "ooh, I'm getting real high". I continue to allow it in the house because it really does help her. She has some kind of imbalance that causes her severe mood swings, depression and the like when she doesn't have it.

Of course, I have told her over and over that she needs to see a doctor and maybe get a prescription for a legal drug that can accomplish the same thing, but she refuses to go.

Anyway, even if she had smoked right before the officer had pulled her over, she wouldn't have been any of those things. I know what my wife is like after she smokes because I observe her doing it every evening. She never gets red eyes, never appears or acts the slightest bit intoxicated, never has any issues with balance, coherence or anything else.

This fucking hick cop made this shit up just to railroad her, and it's infuriating. We cannot afford for her to get a DUI, to lose her license or for my insurance company to drop her off my policy (I know they will).

She also was told that because she as a job that she doesn't qualify for a public defender. What kind of shit is that? We struggle to make our bills all the time and we have very little money squirrelled away. Why doesn't the court take debt into consideration? Now we have to try to find an attorney that will accept payments, and the kicker is that since this didn't happen in our state, we're going to have to blindly get a Kentucky attorney and hope for the best.

This is in Carroll County, by the way.

I want to strangle that unethical state trooper. What a pack of lies.
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Old 07-13-2009, 02:34 PM
Richard Parker Richard Parker is offline
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Originally Posted by FoieGrasIsEvil View Post
The judge wouldn't let her plea without getting a lawyer, so it's been continued.
That's good. At least you have an ethical judge. That's half the battle.

Consider calling the Kentucky ACLU affiliate. And NORML-KY. I think it's unlikely that either will help you directly, but sometimes they'll refer you to people they know who are good.
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  #35  
Old 07-13-2009, 02:34 PM
jtgain jtgain is offline
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Welcome to America, 2009, where in the name of safety we have given police extraordinary powers over our lives. The problem is that some (not all) of these cops are absolute idiots and can ruin your life.

In order to regain our freedoms, we need to dismantle this notion that police need to regulate our marital lives, drug habits, normal driving habits, and other aspects of our lives to Protect Us. Which means it will never happen because we have become sheep.

Best of luck to you and your wife.
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Old 07-13-2009, 02:46 PM
Qadgop the Mercotan Qadgop the Mercotan is online now
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Quote:
Originally Posted by jtgain View Post
Welcome to America, 2009, where in the name of safety we have given police extraordinary powers over our lives. The problem is that some (not all) of these cops are absolute idiots and can ruin your life.

In order to regain our freedoms, we need to dismantle this notion that police need to regulate our marital lives, drug habits, normal driving habits, and other aspects of our lives to Protect Us. Which means it will never happen because we have become sheep.

Best of luck to you and your wife.
Yes to all this.

But your wife is in dangerous territory by self-medicating undefined mood disorders with a schedule I narcotic whose clinical effectiveness and safety for such disorders has not been documented.
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Old 07-13-2009, 02:55 PM
Oakminster Oakminster is offline
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Originally Posted by FoieGrasIsEvil View Post

She also was told that because she as a job that she doesn't qualify for a public defender. What kind of shit is that? We struggle to make our bills all the time and we have very little money squirrelled away. Why doesn't the court take debt into consideration? Now we have to try to find an attorney that will accept payments, and the kicker is that since this didn't happen in our state, we're going to have to blindly get a Kentucky attorney and hope for the best.
Public Defenders are for people without any ability to hire private counsel. If you're working, you are not indigent. You can get the money through legitimate means...either from savings, borrowing, or earnings. Just because it is inconvenient to spend that money for an attorney does not mean it does not exist.
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Old 07-13-2009, 03:18 PM
FoieGrasIsEvil FoieGrasIsEvil is offline
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Originally Posted by Qadgop the Mercotan View Post
Yes to all this.

But your wife is in dangerous territory by self-medicating undefined mood disorders with a schedule I narcotic whose clinical effectiveness and safety for such disorders has not been documented.
Well, tbh I don't think that we'd actually even bring up that she's a habitual user at trial, unless the attorney wants to try some angle I'm unaware of.

The dishonesty in this is that the troopers, according to their own words, were willing to let her go had she admitted possession (supposedly, who knows what they would have really done, it may have been a ploy to get her to confess and have charged her with the DUI anyway), instead charged her with a DUI, and then the officer's arrest report is a blatant pack of unsubstantiated lies.

Does anyone really believe that someone that smoked a little weed is going to be unable to stand up? Really?
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  #39  
Old 07-13-2009, 04:26 PM
acetylene acetylene is offline
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Quote:
Originally Posted by FoieGrasIsEvil View Post
I continue to allow it in the house because it really does help her. She has some kind of imbalance that causes her severe mood swings, depression and the like when she doesn't have it.

Of course, I have told her over and over that she needs to see a doctor and maybe get a prescription for a legal drug that can accomplish the same thing, but she refuses to go.
Interesting. My friend is the same way. He actually had a psychiatrist tell him (very much off the record) that he could either continue to smoke weed, or pop a bunch of pills with a lot of side effects. Which choice do you think he made? This was, BTW after he had been commited to a psych ward and extensively evaluated and heavily medicated.
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  #40  
Old 07-13-2009, 04:32 PM
DSYoungEsq DSYoungEsq is offline
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Were you present at the arrest, FoieGrasIsEvil? If not, you really don't know what happened. Your story in the OP (presumably narrated to you by your wife, though some aspects may have been from your own observation prior to her leaving) is that she hadn't smoked at all that day. Evidence would appear to indicate otherwise. You may be wise to be, hmm, open-minded about what your wife's actual condition was until you see the toxicology report. I know that is difficult, since it is someone you love.

And "not able to stand up straight" is not the same as unable to stand at all. Someone who is at all wobbly will be able to have that phrase apply. At trial, her attorney can find out exactly what the officer meant by that phrase, and if it is as over-the-top as it sounds, then the attorney can attack the whole thing that way.

Now, I only have one further piece of advice. Do not solicit further opinion from this message board on the issue. At this point, in the absence of the real facts, or even the evidence claimed to exist to date, any opinion offered to you by anyone here, regardless of how knowledgeable an attorney, will be worthless. No attorney who is worth listening to will attempt to advise you on the case itself; at best, we/they can provide you with suggestions for how to obtain competent legal assistance. Further, you do realize that your posting here has the potential to rebouond against your wife at the trial, I hope? So it might be a good idea to simply end discussion of the "facts" of the case.

Get a good attorney. DUIs are nasty things to have on your record.
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  #41  
Old 07-13-2009, 04:40 PM
Bricker Bricker is offline
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Quote:
Originally Posted by FoieGrasIsEvil View Post
The fuck all is that they read the officer's arrest report in court and the officer stated that she failed all her field sobriety tests, had extremely bloodshot eyes and that "she couldn't even stand up straight"!!!!!

This is a HUGE pile of bullshit and we are really upset about it. Even if she had been smoking, which she hadn't, "not being able to stand up straight" just isn't on the menu. .
.
.
.
I want to strangle that unethical state trooper. What a pack of lies.
Is there a dashcam video?
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  #42  
Old 07-13-2009, 04:51 PM
Shodan Shodan is offline
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Just to verify - you were not actually present when your wife was arrested, and are basing all this on her description of the events?

Have you heard the results of the urinalysis? I assume that if she smokes it daily, it would have come back positive. If so, it seems that your wife is in rather a tough spot.

By your own description, she is a daily user and was in possession of a half-smoked joint while driving a car and speeding. And we have (if you will excuse me) only her word for it that she passed the field sobriety tests and was not visibly impaired.
Quote:
So, she was given field sobriety tests, which she passed. She had, remembering the incriminating dope in her cig pack upon being pulled over, put the pack into her pocket. They searched the car with a drug dog and didn't find anything. When they asked her if she had anything, she told them no. Upon searching her person, they discovered the joint.
Why did she have the pack out, so that she had to put it back into her pocket/purse/whatever?

Did she consent to the search? What exactly triggered this, since the drug dog did not find anything in the car? Was the search subsequent to her arrest? If so, what was the cause for the arrest?

How did the cop smell marijuana in the car, if your wife had not smoked any that day? His sense of smell must be phenomenal, if he could accurately detect half a joint in your wife's possession to the point that he actually summoned the drug-sniffing dog. I am guessing she smelled rather strongly of weed, given her daily use of it.

So, as far as I can tell. your wife smokes every day, but not that day.

She was not impaired, although she was speeding.

She did not smoke in the car, although she smelled so strongly of weed that the police officer detected it immediately.

She had the pack of cigarettes out, and the joint was half-consumed, but she hadn't smoked it.

Good luck to you. I have a feeling you are going to need it.

Regards,
Shodan
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  #43  
Old 07-13-2009, 05:23 PM
Fear Itself Fear Itself is online now
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As much as I hate admit it, I agree with Shodan. The circumstantial evidence has got your wife behind the eightball. If the officer fabricates additional inculpatory testimony, the only thing that will get her off is a very sharp attorney.

It sounds like you can't afford not to get one.

Also consider the likelihood that if she is convicted, there is probably a mandatory diversion into some kind of out-patient drug treatment program in lieu of jail time, which can cost thousands of dollars to complete. Failure to complete the program revokes the probation, and she gets jerked back into jail to complete her sentence. These programs often require regualr piss tests, so she is probably going to have to give up pot until she completes the program.
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  #44  
Old 07-13-2009, 05:24 PM
MPB in Salt Lake MPB in Salt Lake is offline
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Quote:
Originally Posted by Shodan View Post
Just to verify - you were not actually present when your wife was arrested, and are basing all this on her description of the events?

Have you heard the results of the urinalysis? I assume that if she smokes it daily, it would have come back positive. If so, it seems that your wife is in rather a tough spot.

By your own description, she is a daily user and was in possession of a half-smoked joint while driving a car and speeding. And we have (if you will excuse me) only her word for it that she passed the field sobriety tests and was not visibly impaired.Why did she have the pack out, so that she had to put it back into her pocket/purse/whatever?

Did she consent to the search? What exactly triggered this, since the drug dog did not find anything in the car? Was the search subsequent to her arrest? If so, what was the cause for the arrest?

How did the cop smell marijuana in the car, if your wife had not smoked any that day? His sense of smell must be phenomenal, if he could accurately detect half a joint in your wife's possession to the point that he actually summoned the drug-sniffing dog. I am guessing she smelled rather strongly of weed, given her daily use of it.

So, as far as I can tell. your wife smokes every day, but not that day.

She was not impaired, although she was speeding.

She did not smoke in the car, although she smelled so strongly of weed that the police officer detected it immediately.

She had the pack of cigarettes out, and the joint was half-consumed, but she hadn't smoked it.

Good luck to you. I have a feeling you are going to need it.

Regards,
Shodan
Someone told me once that a half-smoked reefer cigarette (I think the street name the kids are using is a "roach") REALLY stinks---I could see it smelling up a closed car, even it was enclosed in a pack of smokes.............


That said, I am afraid Shodan is right---your wife will need all the luck we Dopers (heh) can send---I am sending my best to you now!!!
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  #45  
Old 07-13-2009, 06:58 PM
FoieGrasIsEvil FoieGrasIsEvil is offline
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Quote:
Originally Posted by Bricker View Post
Is there a dashcam video?
Probably, but I have no idea and I have not seen it.

Quote:
Originally Posted by DSYoungEsq View Post
Were you present at the arrest, FoieGrasIsEvil? If not, you really don't know what happened. Your story in the OP (presumably narrated to you by your wife, though some aspects may have been from your own observation prior to her leaving) is that she hadn't smoked at all that day. Evidence would appear to indicate otherwise. You may be wise to be, hmm, open-minded about what your wife's actual condition was until you see the toxicology report. I know that is difficult, since it is someone you love.

And "not able to stand up straight" is not the same as unable to stand at all. Someone who is at all wobbly will be able to have that phrase apply. At trial, her attorney can find out exactly what the officer meant by that phrase, and if it is as over-the-top as it sounds, then the attorney can attack the whole thing that way.

Now, I only have one further piece of advice. Do not solicit further opinion from this message board on the issue. At this point, in the absence of the real facts, or even the evidence claimed to exist to date, any opinion offered to you by anyone here, regardless of how knowledgeable an attorney, will be worthless. No attorney who is worth listening to will attempt to advise you on the case itself; at best, we/they can provide you with suggestions for how to obtain competent legal assistance. Further, you do realize that your posting here has the potential to rebouond against your wife at the trial, I hope? So it might be a good idea to simply end discussion of the "facts" of the case.

Get a good attorney. DUIs are nasty things to have on your record.
I agree, but my wife is someone I know very well, and I don't know why she would lie to me about the sobriety tests. The fact that the cop offered her amnesty after administering the tests is telling to me. I think they just wanted to get her for something more than a speeding ticket.

Quote:
Originally Posted by Shodan View Post
Just to verify - you were not actually present when your wife was arrested, and are basing all this on her description of the events?

Have you heard the results of the urinalysis? I assume that if she smokes it daily, it would have come back positive. If so, it seems that your wife is in rather a tough spot.

By your own description, she is a daily user and was in possession of a half-smoked joint while driving a car and speeding. And we have (if you will excuse me) only her word for it that she passed the field sobriety tests and was not visibly impaired.Why did she have the pack out, so that she had to put it back into her pocket/purse/whatever?

Did she consent to the search? What exactly triggered this, since the drug dog did not find anything in the car? Was the search subsequent to her arrest? If so, what was the cause for the arrest?

How did the cop smell marijuana in the car, if your wife had not smoked any that day? His sense of smell must be phenomenal, if he could accurately detect half a joint in your wife's possession to the point that he actually summoned the drug-sniffing dog. I am guessing she smelled rather strongly of weed, given her daily use of it.

So, as far as I can tell. your wife smokes every day, but not that day.

She was not impaired, although she was speeding.

She did not smoke in the car, although she smelled so strongly of weed that the police officer detected it immediately.

She had the pack of cigarettes out, and the joint was half-consumed, but she hadn't smoked it.

Good luck to you. I have a feeling you are going to need it.

Regards,
Shodan
I was not there, all I have is the secondhand account of the matter. I don't like my wife smoking, but it really does help her brain. It has literally very little to do with the act of getting high but moreso as a coping mechanism. Of course, that's not going to fly in a court in the state of Kentucky, which oddly is in the top three or four marijuana growing states.

The smell is REALLY obvious, at least to me. Anytime my wife stashes a partially consumed joint anywhere in the house, I can generally sniff it out. She was not smoking that day, she had puffed on that joint the night before and put it in her cigarette pack. It reeks like holy hell even then, and that is what the cop smelled, even though oddly enough the drug dog didn't react to it. Which top me says that there was no smoking on that trip. Surely the damn dog would have smelled it, right?

Quote:
Originally Posted by Fear Itself View Post
As much as I hate admit it, I agree with Shodan. The circumstantial evidence has got your wife behind the eightball. If the officer fabricates additional inculpatory testimony, the only thing that will get her off is a very sharp attorney.

It sounds like you can't afford not to get one.

Also consider the likelihood that if she is convicted, there is probably a mandatory diversion into some kind of out-patient drug treatment program in lieu of jail time, which can cost thousands of dollars to complete. Failure to complete the program revokes the probation, and she gets jerked back into jail to complete her sentence. These programs often require regualr piss tests, so she is probably going to have to give up pot until she completes the program.
We'll see. I have emails out to all the KY NORML attorneys, as well as the ACLU.

I think she was railroaded into a DUI. Possession? Yes, guilty! Speeding? Also YES! DUI...I don't think so.
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  #46  
Old 07-13-2009, 07:05 PM
Fear Itself Fear Itself is online now
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Quote:
Originally Posted by FoieGrasIsEvil View Post
I think she was railroaded into a DUI. Possession? Yes, guilty! Speeding? Also YES! DUI...I don't think so.
Oh, I agree with you. I don't doubt anything you have said. I just think the likelihood of being acquitted without good representation is low.
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  #47  
Old 07-13-2009, 07:08 PM
FoieGrasIsEvil FoieGrasIsEvil is offline
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Quote:
Originally Posted by Fear Itself View Post
Oh, I agree with you. I don't doubt anything you have said. I just think the likelihood of being acquitted without good representation is low.
I agree, which is why I am working on the "good representation" angle. I am praying that a NORML attorney will take our case.
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  #48  
Old 07-13-2009, 07:39 PM
Dallas Jones Dallas Jones is offline
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The judgement on impairment usually falls in the favor of the officer. Say it was alcohol and the limit it .08, but you blow a .04, you are fine right? Nope. If the arresting officer, who is trained in impairment, thinks you are impared, you will lose even though you blow under the legal limit.

With pot they will use the experience of the officer combined with the level of THC components in her test and she will loose. Go for a diversion.

I do not know if Kentucky has a medical pot law like Oregon does. But if it does, have her get a medical marijuana card in the future. Won't help with this case or if you are driving under the influence, but it gives the officer an 'out' to let you go for simple possession.

Her back 'hurts', even if it doesn't. You know what I mean. I have a friend who works in law enforcement and he told me at our last family gathering that he wishes he could just refer a pot perp to the local doctor who gives out the cards freely. Because if you don't have a card he has to process you for possession.

He calls it a 'get out of stupid' card.
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  #49  
Old 07-13-2009, 08:07 PM
JThunder JThunder is offline
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Quote:
Originally Posted by FoieGrasIsEvil View Post
Thanks. This is a first offense. I am pissed about the cops playing that "Well, if you wouldn't have lied to us, we would have let you go with a possession ticket" card.
What do you think they should have done differently?
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  #50  
Old 07-13-2009, 09:04 PM
FoieGrasIsEvil FoieGrasIsEvil is offline
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Originally Posted by JThunder View Post
What do you think they should have done differently?
Given her a possession ticket in light of their lack of evidence for DUI that they created after the fact?
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