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Leesburg Criminal Law Blog

Scientists question the value of THC breath tests

Breath-testing equipment used by police departments in Virginia and around the country often provide the key pieces of evidence in drunk driving cases. Prosecutors rely on toxicology test results when motorists are suspected of driving while influenced by alcohol because the link between elevated blood alcohol concentrations and intoxication is well established, but the science of THC impairment is more nebulous. Several companies are working to develop breath-testing devices that police officers could use to find out if motorists have smoked or otherwise consumed marijuana, but this equipment may be of little practical use even if it works.

The problem facing law enforcement is that THC and alcohol affect the body in different ways. A heavy drinker and a person who does not consume alcohol very often would both be unable to drive a car safely with a blood alcohol concentration of .08% or higher, but a habitual marijuana smoker could be relatively unimpaired by THC levels in their bloodstream that would leave somebody who rarely consumes the drug barely able to stand.

"Cannabis breathalyzer" aims to detect drugged driving

A growing number of people in Virginia and across the country are facing DUI charges based on allegations of driving under the influence of cannabis. As more and more states legalize marijuana for medical or recreational use, some say that the threat of drugged driving has risen even as alcohol intoxication while driving has decreased. However, while alcohol-related DUI and drunk driving charges are often relatively clear, there is no such clarity regarding cannabis and DUI. There is no cannabis equivalent of the BAC, the legal limit on alcohol consumption while driving.

As a result, people have faced DUI charges for any amount of cannabis found in the blood, despite the fact that it may be old and irrelevant to the driver's operation of a vehicle. One device that has simplified drunk driving prosecutions in past decades is the Breathalyzer, a machine that measures the amount of alcohol on a driver's breath. It was widely debated when first introduced but is now considered more reliable than police testimony or field sobriety tests. Scientists and private companies are working to develop a device to measure the amount of cannabis a person consumed before driving.

Virginia federal judge rules terrorist watchlist unconstitutional

A federal judge in Virginia ruled on Sept. 4 that the government's terrorist watchlist violates the constitutional rights of the more than 1 million people who have been placed on it. The case challenging the watchlist was brought by more than 20 Muslim-Americans and argued before the U.S. District Court for the Eastern District of Virginia. The plaintiffs are being supported by the Council on American-Islamic Relations.

The plaintiffs, who deny any connection to terrorist activity, convinced the judge that the Federal Bureau of Investigation does not take adequate steps to protect the innocent before adding an individual's name to the government's list of known or suspected terrorists. The judge has asked for additional briefs to help determine appropriate remedies. Incidents recounted by the plaintiffs included being subjected to additional screening at airports and placed in handcuffs at border crossings. The judge determined that the plaintiffs had been denied the right to due process guaranteed by the Fifth Amendment.

Research uncovers a possible wrongful conviction rate

Individuals who are currently sitting in jail or prison in Virginia may have been wrongfully convicted. According to a study conducted by a research team at Pennsylvania University, roughly 6% of participants said that they were innocent of the charges against them. The team asked 3,000 prisoners in the state a series of questions such as why participants felt that they were wrongly convicted. Participants answered these queries anonymously over a period of six months.

The research team admitted concern that study subjects wouldn't answer the questions or answer them honestly. However, they soon found that the vast majority took full or partial responsibility for their actions. The anonymous nature of the survey was cited as the reason why the response rate was so high. Furthermore, the study had controls in place to eliminate responses that were not likely to be plausible. Those who conducted the research say that the data it collected was only a starting point for determining how common wrongful convictions are.

Feds bust up major drug ring

At the end of August, federal authorities busted a major drug distribution ring operating in Virginia, North Carolina and Texas. The three-day sting, dubbed "Operation Cookout," resulted in the arrests of 35 people.

According to the U.S. Department of Justice, the drug ring had been operating since early March 2016. Apparently, the defendants and four fugitive co-conspirators would obtain cocaine, cocaine base, fentanyl and heroin from suppliers in California, New York and Mexico and ship it to Virginia. The drugs would then be hidden in various locations, including passenger vehicles, trucks, tractor-trailers and recreational vehicles, so it could be prepared for sale. The defendants played various roles within the operation, including financier, supplier, packager, transporter, facilitator and distributor.

Virginia begins crackdown on drunk driving

An annual campaign to reduce incidents of drunk driving began in Virginia a week before Labor Day. The Checkpoint Strikeforce campaign increases the presence of law enforcement throughout the state in order to combat alcohol-impaired roadway fatalities. In 2018, Virginia saw a 12% increase in traffic deaths related to alcohol-impaired drivers, and authorities are alarmed that the problem could only get worse during the coming years.

The Checkpoint Strikeforce campaign has been going on for 18 years. In 2019, the state plans to operate 120 checkpoints and 640 saturation patrols to catch as many intoxicated drivers as possible. During Labor Day weekend in 2018, police in the state arrested 72 drunk drivers, which was an average of a DUI arrest every 80 minutes. Part of the campaign for 2019 involves educating young people about the dangers of intoxicated driving.

Technology may give police greater surveillance powers

When people in Virginia buy technologically advanced doorbells, they may not realize that they are also signing up for an agreement with the police. Ring is one company, recently purchased by Amazon, that produces doorbells with a video feed. Homeowners can see who is at the door by checking the connected app on their mobile phones. However, police have a special portal into Ring. They can request video from community residents who are using the app. This may not seem too troubling as it relies on voluntary interactions. However, if the owners don't turn over the footage, police can go to the company directly without seeking a warrant or showing probable cause.

Built into the agreement when people sign up for Ring is permission for the police to access their data. Police agencies argue that consumers are aware of the surveillance potential of the systems and that "good upstanding" people have nothing to fear. Amazon is asking police agencies to join community boards in order to encourage people to freely provide their data to the police. However, civil liberties organizations warn that many people do not really read the full user agreements that accompany apps. They might think the data is their own and not subject to police review.

Wrongful convictions often result from poor police practices

For many people in Virginia, the prospect of a wrongful conviction is very frightening, even if the possibilities seem remote. DNA evidence has confirmed that a number of people convicted of serious crimes like murder and rape actually spent decades behind bars for crimes that they did not commit. In many cases, wrongful conviction cases do not indicate mere mistakes or tragedies that take years of people's lives away. Instead, misconduct or abuse by police and prosecutors are often a major part of these cases. Witnesses may be coerced or badgered into providing inaccurate testimony and evidence may even be planted in some cases.

A study examining cases of wrongful conviction found that the problem goes deeper than individual corruption or misconduct, however. Even police and prosecutors who believed themselves to be acting ethically and honestly have been involved in these cases. Confirmation bias can lead law enforcement to focus on a particular suspect even when the evidence isn't clear. In addition, there can be heavy pressure to quickly identify, arrest, try, and convict a suspect. This can lead to rushed, flawed investigations and the resulting miscarriages of justice seen in wrongful conviction cases.

Eyewitness identifications can be flawed

Many criminal convictions and charges are heavily based on eyewitness testimony, even though it is known to be often inaccurate or unreliable. While people may be heavily affected by their experience of a crime, memory can be tricky, especially when people feel pressure to provide important information. In many cases, witnesses of a Virginia crime are asked to view a set of photos or a live lineup of people in order to see if they can identify the perpetrator. This photo lineup may take place some time after the initial incident.

In most cases, there is more evidence presented in a criminal case than a simple selection from a lineup. However, a witness identification can also spark police to build a case around a suspect that may be innocent of the crime. In other cases, witnesses select people chosen as "fillers" who are known to be innocent or say that a guilty suspect was not there. Some of these wrongful identifications have led to improper convictions that have put people behind bars for years.

Virginia man sentenced to 14 years in prison for drug dealing

On July 9, a 43-year-old Leesburg man was sentenced to 14 years in a Virginia prison after being convicted of multiple drug crimes. Following his release, he will also serve five years of supervised probation and five years of unsupervised probation. An additional 12 years of his sentence were suspended.

According to media reports, the defendant was arrested by the Virginia State Police in January 2018 after he sold 1.72 grams of cocaine to a police informant. In March 2018, he was charged with forgery and obtaining money by false pretense after using a fake $100 bill to buy a Bluetooth speaker at an area office supply retailer. When he was taken into custody on outstanding warrants a few weeks later, officers found more counterfeit money in his pocket. After he was transported to Loudon County Adult Detention Center, officers also found cocaine in his pocket.

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