We are honored to announce that Adam Woody has been selected to the 2018 edition of the Best Lawyers in America for his work in DUI/DWI defense. Recognition by Best Lawyers is based entirely on peer review. Their methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. This is not an award that is paid for or solicited by the attorney, but comes purely from a nomination and peer review process. We are honored to be included on this prestigious list with the best our profession has to offer.
This spring, 16 state patrol officers from Colorado and Wyoming took a couple days off their usual work schedule to do something special. They assembled in a hotel conference room in Denver. As instructed, they wore street clothes for their first assignment: going shopping at nearby marijuana dispensaries.
“It’s a brave new world,” said instructor Chris Halsor, referring to the years since Colorado legalized recreational marijuana.
There are now more marijuana dispensaries in Colorado than there are Starbucks shops, said Halsor, a Denver lawyer and former prosecutor. And though consuming cannabis is legal across the state, driving under its influence is not.
The cops in that conference room, with their buzz cuts and Mountain Dew, are all part of the force charged with keeping the roads safe. But first, they needed a formal pot education — to learn how to identify various marijuana products and paraphernalia when they pull over a driver they suspect is under the influence.
Here’s the rub: Despite the increasingly legal use of cannabis in many states, cops still don’t have the equivalent of a reliable alcohol breathalyzer or blood test — a chemically based way of estimating what the drug is doing in the brain. Though a blood test exists that can detect some of marijuana’s components, there is no widely accepted, standardized amount in the breath or blood that gives police or courts or anyone else a good sense of who is impaired.
A number of scientists nationally are working hard to create just such a chemical test and standard — something to replace the behavioral indicators that cops have to base their judgments on now.
“We like to know the human error and the limitations of the human opinion,” said Tara Lovestead, a chemical engineer at the National Institute of Standards and Technology in Boulder, Colo., who is working on setting standards for what a marijuana detection test might require.
It’s actually really hard for Lovestead to do this kind of research because she works in a federal lab; federally, cannabis is considered a Schedule 1 substance, “a drug with no currently accepted medical use and a high potential for abuse.” So even though Lovestead is in Colorado, getting hold of a sample for research purposes is just as hard as getting hold of heroin.
“We cannot use the stuff down the street,” she said.
Aside from being a bureaucratic mess, coming up with a standardized blood or breath test is also a really tricky chemistry problem because of the properties of the main psychoactive chemical in cannabis: delta–9-tetrahydrocannabinol, or THC.
In states like Colorado, there is a THC blood test that law enforcement can use to show “presumed” impairment. If a person has more than 5 nanograms of delta-9-THC per milliliter of blood, a court or jury can infer that they are impaired, according to Colorado law (this is called “permissible inference” in legalese).
But Lovestead and others maintain that, scientifically speaking, that cutoff doesn’t actually mean anything.
“We just don’t know whether or not that means they’re still intoxicated, or impaired or not,” she said. “There’s no quantitative measure that could stand up in a court of law.”
Turns out it can be a lot harder to chemically determine from a blood or breath test that someone is high than to determine from such a test that they’re drunk.
Ethanol, the chemical in alcoholic drinks that dulls thinking and reflexes is small and dissolves in water. Because humans are mostly water, it gets distributed fairly quickly and easily throughout the body and is usually cleared within a matter of hours. But THC, the main chemical in cannabis that produces some of the same symptoms, dissolves in fat. That means the length of time it lingers in the body can differ from person to person even more than alcohol — influenced by things like gender, amount of body fat, frequency of use, and the method and type of cannabis product consumed.
In one study, researchers had 30 frequent marijuana users stay at a research facility for a month without any access to drugs of any sort and repeatedly tested their bloodfor evidence of cannabis.
“And it shocked everyone, including ourselves, that we could measure, in some of these individuals, THC in the blood for 30 days,” says Marilyn Huestis, a toxicologist with the University of Maryland School of Medicine who recently retired from leading a lab at the National Institute on Drug Abuse.
The participants’ bodies had built up stores of THC that were continuing to slowly leech out, even though they had abstained from using marijuana for a full month. In some of those who regularly smoked large amounts of pot, researchers could measure blood THC above the 5-nanogram level for several days after they had stopped smoking.
Conversely, another study showed that people who weren’t regular consumers could smoke a joint right in front of researchers and yet show no evidence of cannabis in their blood.
So, in addition to being invasive and cumbersome, the blood test can be misleading and a poor indicator of whatever is happening in the brain.
Recently, some scientists have turned their attention to breath, in hopes of creating something useful.
A number of companies, like Cannabix Technologies and Hound Labs, are in the process of developing breath detection devices. Tara Lovestead is providing the data that will help relate the concentration of THC detected in the breath to what’s in the blood. Even though blood provides an incomplete and indirect inkling of what’s happening in the brain, it’s the measure law enforcement turns to as a benchmark.
That, too, is a chemist’s nightmare. THC and other cannabinoids — the chemicals that cause a high — are really squirrelly. They degrade quickly and appear only in very tiny amounts in the breath.
Luckily, Lovestead’s specialty is detecting tiny amounts of chemicals in the air. She and her colleagues have worked on methods to use tiny air samples to detect evidence of arson, buried bodies and hidden explosives. Marijuana is the next challenge.
In the future, she said, an accurate breath test would likely involve looking at a lot more than just THC — probably a whole combination of chemicals.
“One thing to look for would be metabolites — something that comes out of the breath that shows it actually went through your system,” she said. Such a test would greatly reduce the possibility that someone might test positive from inhaling secondhand smoke, she said.
In the meantime, it’s up to law enforcement officers like the ones in Chris Halsor’s class to make the call, based on circumstantial evidence and their best guess.
“The whole point of this class is to get the officers to make correct decisions,” said Halsor.
Many officers in his courses have never used marijuana — or haven’t since some exploratory puffs in high school. These officers need training, he said, to boost their confidence — “confidence that they’re making the right arrest decision and confidence that they’re letting people go who really aren’t impaired.”
The cops attending his seminar in the spring paged through Dope Magazine, chuckled at a photo of an edible called “reef jerky” and watched a video together on how to dab — heating concentrated marijuana and inhaling the vapors. In their visit to a local marijuana dispensary, they examined gold-plated blunts — hollowed-out cigars filled with marijuana.
But the real test of these officers’ ability to identify the signs of cannabis impairment faced them outside the hotel, in a parked RV that was plastered with bumper stickers.
Four volunteers for the project were inside the RV, legally getting as high as they wanted to, from a big plastic tub full of pot products.
“Good music, good company, good weed. It all goes together,” said Eugene Butler, one of the four volunteers.
Butler and the three others had never met before. They had volunteered to get high and then interact with cops to help the officers learn the signs of cannabis impairment.
“We’re going to willfully smell like pot around a bunch of cops,” said Sharica Clark, laughing.
Inside the hotel, the officers practiced roadside sobriety tests on the four volunteers — determining each time if, in real life, they would have arrested these people for a DUI.
All the volunteers had smoked a lot of pot inside the RV. But in the sobriety tests, they performed differently.
A volunteer named Christine, for example, did well on math, quickly calculating how many quarters are in $1.75. But she didn’t do well on other things, like balancing, remembering instructions and estimating time. (She was concerned about recrimination at work, and NPR agreed to use only her first name).
Christine, the officers all decided, would be a danger behind the wheel. In real life, they would have arrested her.
“Yeah, she’d be going to jail,” said Rich Armstrong, an officer with Colorado State Patrol.
But things weren’t so clear with the other volunteers. A lot of the officers had decided they wouldn’t arrest Eugene Butler or a volunteer named John (who also asked that we not use his last name); both men aced the same roadside tests Christine flunked, even though they, too, had just smoked a lot in the RV.
And when it came to Sharica Clark, the officers decided it was essentially a toss-up as to whether they would have arrested her, based on her performance on the roadside tests. Yes, her pupils were huge, and she had a tough time touching her finger to the tip of her nose while her eyes were closed. But her balance, counting and recitation of the alphabet were, as Colorado State Patrol Officer Philip Gurley put it, “spot on.”
“It was a tough one,” said Tom Davis, another officer with Colorado State Patrol.
Right now, these officer’s opinions loom large. If they decide you’re driving high, you’re going to jail. But at the end of the day, they’re just making educated guesses. Two different officers could watch the same person doing the same sobriety test and make different decisions on whether to arrest. In previous courses, officers had decided that a volunteer was impaired when in fact the volunteer hadn’t smoked at all.
So, just like the THC blood test, the judgments officers make can also yield false positives and negatives.
“This is one of those subjective areas,” said Armstrong.
“It’s too subjective,” said Lovestead.
She recently published a paper in the journal Forensic Chemistry where she found the vapor pressure of THC — one of its fundamental physical properties. Lovestead believes finding and standardizing that measurement is a small but significant steptoward a more objective route for evaluating intoxicated drivers.
In the meantime, courses like Halsor’s are the best resource for officers. And at least now the class participants know what pot strains like Skunk Dawg, Hippie Chicken and Chunky Diesel actually smell like.
“Yeah,” said Gurley. “It smells like the bottom side of a rock.”
We are honored to announce that Criminal Defense Attorney Adam Woody has been named a 2017 Trusted Adviser by Springfield Business Journal. Each year, Springfield Business Journal uses an independent panel of judges to choose three attorneys, along with three other professions, in the Springfield metropolitan area who work tirelessly behind the scenes and go above and beyond for their clients. We are honored to join the prestigious list of previous winners. Attached is the press release from Springfield Business Journal naming this years winners.
Just last week, Nicholas Godejohn, the man accused of killing Dee Dee Blanchard along with his girlfriend Gypsy Blanchard, withdrew his waiver of jury trial. Previously, he had waived his right to a jury trial and elected to have a bench trial. He changed his mind and the Court allowed him to renew his demand for a jury. This is a unique turn of events, and one that the local CBS affiliate, KOLR10, took notice of and did a story on. Springfield, Mo. criminal defense attorney Adam Woody was interviewed to provide insight into the difference between a bench and jury trial.
Essentially, a jury trial in Missouri is where 12 citizens from the community hear the evidence and decide the factual issues. They then must agree unanimously whether or not the State proves their allegations beyond a reasonable doubt. Conversely, a bench trial is where the judge and the judge alone hears the evidence and makes the same factual determinations. The judge in that situation has two roles: decides which evidence comes in at trial, and decides whether the State proves its case. The finding of the judge in that situation has the same force and effect of a jury verdict.
There are a variety of considerations to take into account when determining whether to waive a jury trial. Sometimes, overly emotional cases are better to be heard by a judge and judge alone, but again, that depends upon whether there are factual issues that would be better determined by a jury. There is no magic formula, and as criminal defense attorneys, we must simply make our recommendations to our clients on a case by case basis. Clearly, the attorneys for Mr. Godejohn made their decision that a jury trial is in his best interest and he agreed. That trial is set to commence in December of this year.
Ignorance of the law — and election news — wasn’t a valid excuse for an aging Arizona toker arrested this week in Golden Valley.
After allegedly resisting arrest, Lon Victor Post, 54, told deputies early Wednesday morning that he thought the state had legalized marijuana, according to the Mohave County Sheriff’s Office. Deputies took him to jail anyway.
Possession of any amount of marijuana remains a felony in Arizona after voters rejected Prop 205 in November by a ratio of about 52 percent to 48 percent. Perhaps Post was confused by the fact that roughly 100 miles to the west and north of him, thanks to successful legalization elections in California and Nevada, adults 21 and older now have the freedom to use marijuana without legal penalty. Maine and Massachusetts also legalized weed for all adults, making Arizona the only one of five states that turned down the opportunity.
The deputies noticed he was having trouble standing upright as he turned down the music and chatted with them. They also noticed a baggie of pot sticking out of his shirt pocket and soon determined that he wasn’t one of the roughly 100,000 Arizonans registered under the state’s medical-marijuana program. But Post, apparently thinking he was being hassled unfairly, “jerked away” as the deputies tried to take him into custody, Carter writes.
Post pulled away a second time, seemed to square up for a fight, and took a menacing step forward. Deputies hit him with a Taser blast, which calmed him down. He then asked why he was being arrested.
“Further conversations with Post, he said that he thought marijuana was legal,” Carter writes. “The deputy advised Post that marijuana is illegal without a prescription and medical-marijuana card.”
That last part isn’t quite right: Qualified patients need to obtain a recommendation, not a federally regulated prescription, in order to register for a card.
Deputies booked him on suspicion of resisting arrest, possession of marijuana, and possession of drug paraphernalia — all felonies.
Had Post been savvier, he could have obtained a card easily and possibly avoided the possession and paraphernalia charges.
But even under the voter-approved 2010 medical-marijuana law, smoking in public remains illegal.
Adam was recently interviewed by Emily Wood in in a story for KY3 News about the the impact of services such as Uber and Lyft on the number of DWI arrests in Springfield. Read the story below, or click here to watch the article on ky3.com.
SPRINGFIELD, Mo. (KY3) – On graduation night for Missouri State University, downtown bars were packed, and Uber drivers were busy.
“In the beginning of the night, I was taking people to bars, so now I’m going back downtown to pick them up and take them home,” said Neyko Dominguez, an Uber driver.
When the rideshare company first launched in Springfield in November, police officers were hoping it would make their nights a little easier and the streets a lot safer. In recent months, drunken driving arrests have started trending downward.
“Realistically my thought was, ‘What took so long?'” said Adam Woody, a criminal defense attorney in Springfield.
Woody noticed a quick and sharp decline.
“Interestingly, a lot of times, clients, as an excuse for how they got the DWI, they would say they were waiting for a taxi for hours and just couldn’t get one downtown. It’s slow,” Woody said.
With rideshare services like Uber, no matter what time of day or night, you just have to tap on the rideshare app, and it pops up the drivers closest to you as well as their reviews.
“It takes literally no time to get an Uber: 10 minutes max,” said Gabby Heth.
So far the numbers show a downward trend. Drunken driving arrests for January 2016 were 64 compared to just 38 for January 2017. February went from 66 down to 48, year-to-year, and March went from 70 to 52, year-to-year.
“We still make a number of DWI arrests,” said Springfield Police Lt. Stacey Parton.
Parton said the department doesn’t have enough data yet to attribute that shift to rideshare services but sees it as a positive factor.
“That’s one less person that is out there that’s going to get involved in a crash, possibly injure or kill somebody because of driving impaired,” Parton said.
Dominguez drives for the extra cash and said the bulk of his business comes at closing time.
“I’ve met some different kind of people. Truthful, drunk people,” he said.
The hope is the ease of using the apps, like Uber and Lyft, may help save lives.
“It’s a great opportunity, and I don’t see why people would pass it up,” Heth said.
Numbers around the country are mixed. Other recent studies, including one from Oxford and the University of Southern California, have shown ridesharing had no effect on drinking-related or holiday- and weekend-related fatalities in other places.
Just last week we published a post about a new law being enforced which would require certain sex offenders to be supervised and wear an electronic monitoring ankle bracelet, both for the rest of their lives. We questioned the Constitutionality of such a bill as the legislature attempted to include offenders who plead guilty to their charges all the way back in 2007, through today. On Monday, a Circuit Judge in Cole County issued a temporary injunction, stopping the enforcement of the bill statewide and ordering hundreds of ankle monitors that had been installed last month to be immediately removed. That injunction is likely to be made permanent at the next hearing in July. Local ABC affiliate KSPR did a story following up on the Court’s order featuring Springfield criminal defense attorney Adam Woody. Although theses offenders are not going to get a lot of sympathy from the general public, Constitutional over-reach by our legislature, no matter the target population, is something that we should constantly monitor. Here, the right decision has been made, at least temporarily.
According to a recent Springfield News-Leader article, DWI arrests in Springfield have gone down since Uber became operational in Springfield 4 months ago. See the News-Leader article below.
(Photo: News-Leader Illustration)
When Missouri lawmakers passed a bill this session making it easier for ride-hailing services like Uber and Lyft to operate in the state, they lauded the bill’s potential to reduce drunken driving.
They could have used Springfield as an example.
Since the City Council tweaked the rules to help bring Uber to Springfield in November, the number of DWI arrests in the city has gone down. But there’s some debate about how much credit to give the new companies, which allow customers to hail rides from nearby drivers using an application on their smartphones.
An Uber spokeswoman said the company’s drivers do most of their pickups on the weekends in downtown Springfield, where people might otherwise choose to drink and drive.
Lt. Stacey Parton, in the Springfield Police Department’s traffic unit, said he has the Uber application on his phone and he sees its potential for reducing drunken driving, but he needs more data to truly understand Uber’s impact.
“I will say that Uber has had an effect,” Parton said. “Statistically, I am not sure that we can quantify it right now, but it has had a good effect.”
Uber launched in Springfield in November
Uber launched in Springfield in November (Photo: David Ramos, Getty Images)
From December to March — the first four full months that Uber has been operational in Springfield — there was an average of 47 DWI arrests per month in Springfield.
That’s down from an average of 55 DWI arrests per month in 2016, and way down from the five-year average of 76 DWI arrests per month in the city.
But DWI arrests had been trending down in Springfield prior to Uber’s arrival in November and Lyft launching in January.
Parton said there are other factors to consider when looking at DWI numbers.
In late 2014, Greene County instituted a policy allowing police to draw blood from suspected drunken drivers who refuse a breathalyzer test. Parton said he believes that policy is working as a deterrent.
“Word has gotten around,” Parton said. “And I think it has caused people to think more about drinking and driving.”
Parton also pointed to ongoing public awareness campaigns, more housing downtown and the dissolution of SPD’s dedicated DWI unit as factors that might be leading to fewer DWI arrests.
Academic studies have drawn varying conclusions about the impact of ride-hailing companies on drunken driving.
A 2016 study from the American Journal of Epidemiology found that Uber did not have a noticeable impact on drunken-driving fatalities in the nation’s 100 most populated metropolitan areas. But Uber points to a 2015 Temple University study that found a drop in alcohol-related driving fatalities after Uber was introduced in California.
On its website, Uber also touts a 10 percent drop in DWI arrests that followed Uber’s launch in Seattle.
In a new law that took effect January 1, 2017, around a dozen different types of sex offenders are now required to be supervised by the State Board of Probation and Parole for the rest of their natural lives. Along with the lifetime supervision, they are also subject to mandatory electronic monitoring through the use of an ankle bracelet, at the expense of the prior sex offender. Adding additional fuel to the inevitable legal battle regarding the Constitutionality of the new bill, the state legislature made the law retroactive to August 28, 2006. What this means is that anyone who plead guilty to the roughly 12 types of sex crimes, even all the way back in 2006, now suddenly have this new obligation regardless of how well they did on probation or how productive and law abiding they have been in life following their arrest. Many of these crimes that require the lifetime registry and electronic monitor are non-contact offenses.
Understandably, sex offenders are not a group of people who are going to garner a lot of sympathy. However, this new bill seems far over-reaching even in today’s society which treats sex offenses as a modern day scarlet letter. The new law, RSMo. 217.735, includes offenses such as sexual misconduct involving a child. Although titles of all sex offenses sound incredibly dangerous to most, sexual misconduct involving a child could include behavior such as urinating in public when a person less than 15 accidentally observes the act. It is hard to imagine a scenario in which that crime should lead to lifetime supervision and lifetime electronic ankle monitor.
This bill is highly likely to be challenged in short order. The Missouri Constitution forbids laws that ex post facto in nature, meaning laws that require a new obligation based on a prior act. Appellate Courts across Missouri and across the country have made exceptions in the case of sex crimes, calling the new obligations civil in nature, rather than punitive. Either way, this new bill is certain to be appealed an the Missouri Supreme Court is likely going to have to settle the debate as to whether or not these new requirements are Constitutional.
Research out of the University of Texas at Dallas say that teen driving curfews can not only curb car crashes, but they could also reduce juvenile crime. That said, should be really we limiting individual freedoms in order potentially reduce crime?
Before we delve into the ethics of the curfew, let’s take a look at the data. For their study, researchers at the University of Texas at Dallas analyzed national FBI data from 1995 to 2011 involving teenage drivers and drivers with an imposed curfew. According to researchers, arrests of teens fell between 4 and 6 percent in states that placed a driving curfew on new and inexperienced drivers. In the strictest states, arrests were down between 5 and 8 percent.
Other findings from the study include:
- The largest declines in arrests were in states that had graduated license programs (GDLs) in place the longest.
- The biggest drops in arrests were from crimes like murder or manslaughter (11 percent), larceny (5 percent) and aggravated assault (4 percent).
Researchers say GDL programs and driving restrictions have been shown to reduce the risk of a crash, but this was the first study to examine how these restrictions affect youth crime.
“Being able to drive or having friends who can drive is the difference between going out and staying home on a Saturday night,” said study author Monica Deza, an assistant professor of economics. “It seemed intuitive to us that having a curfew on driving hours affected the probability that teenagers would get themselves into trouble.”
Researchers stopped short of saying the study proves a cause-and-effect link, rather, they just noted that there was an association between teen driving curfews and reduced juvenile crime rates.
Balancing Restrictions and Freedoms
Everyone knows that getting your license is seen as one of the biggest steps towards adulthood a teen can make, but each state handles the provisional license differently. Some states don’t let new drivers hit the road after midnight or before 5 a.m., while other states restrict cell phone privileges while in the car.
The issue arises when we take the association at face value and jump to the notion that there should be a widespread driving curfew to reduce teen crime. While that may be true, there would also be a reduction in crime if we had a mandatory curfew that required all adults to be home by 9 p.m. We can’t use the guise of safety as a blanket rule to inhibit personal freedoms. Ben Franklin said so himself when he wrote “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
We can go back and forth arguing whether or not driving at night is an “essential liberty,” but it speaks to the larger idea that we can’t just restrict personal freedoms in order to feel a little safer. Some checks and balances certainly need to be put in place for new drivers, but I’m not certain a nationwide curfew is the optimal route.