The CHP’s Pot DUI
by Bruce McEwen, July 23, 2013
The California Highway Patrol has plenty of critics, and a crop of new young officers has appeared in Mendocino County, who, these critics say, are writing tickets for all kinds of things that older officers ignore.
A just concluded jury trial for a young man accused of driving while under the influence of marijuana reinforced a general suspicion that over-zealousness is in play around here.
How bad was this case?
It was so bad that the newest, and youngest, and shyest, and smallest counselor in the Public Defender’s office where body types run from squat-diminutive to hulking, won the case — her first jury trial, ever — against the DA’s biggest, baddest courtroom brawler, Joshua Rosenfeld, who has now lost his first DUI case.
Introducing Miss Christine Brady.
The case was so silly that Judge Jeanine Nadel seemed ready to dismiss it if the jury was gullible enough to come back with a guilty verdict for the defendant, Zachary Jackson.
Why was such a pitiful case filed in the first place?
His critics, mostly defense attorneys, claim that District Attorney C. David Eyster is overly concerned with won-loss stats, as if the criminal justice system is some kind of ball game. Second, these same defense lawyers feel that Eyster makes a prosecution out of everything law enforcement drags in. Deputy DA Josh Rosenfeld has become especially obliging with the CHP officers, as he handles most of the CHP-derived DUIs.
Rosenfeld prosecuted this pot DUI like it was the crime of the century, but by the second day, word was all over the Courthouse that the defendant had passed the field sobriety test and hadn't been loaded when he was pulled over. Or, at least, legally loaded.
An impairment expert from the Department of Justice in Sacramento, Mr. Daniel Coleman, appeared for the CHP.
Mr. Jeffrey Zender of Drug Detection Laboratories in Fort Bragg, took the stand for the defendant.
The CHP expert was “abrupt, curt and even rude,” in the eventual words of the prosecutor who'd hired him.
The defense expert was more genial, but perhaps “less credible” because he’s “co-owner of Drug Detection Labs along with his wife” — this also according to the prosecution.
Both experts agreed that pot smokers were generally safer drivers than drunk drivers. So, on Thursday, the defense made a motion to dismiss for lack of evidence, but Rosenfeld complained so vehemently that the judge denied the motion. By Friday, when it became even more evident that the case was a farce and the defense renewed the motion to dismiss, Judge Nadel said she would take it under submission and make her decision after the jury came back with a verdict.
Rosenfeld ran downstairs to get his boss.
DA Eyster and Deputy DA Rosenfeld soon banged out of the DA’s office in the bowels of the Courthouse and bowled up the halls abreast, like the kid in a playground beef who runs home to get daddy.
A pot smoker about to get off the hook for driving stoned in the middle of the night? Holy Mendo Smoke! We can't have that.
The two DA's took the stairs two at a time, brushing me off with a curt, “Not now, Bruce,” as your trusty Courthouse correspondent tried to ask, “What’s the emergency?” Little Ms. Brady, public defender, steeled herself and smiled bravely at her client as the two prosecutors burst into the courtroom. But it was Judge Nadel who took the brunt of Eyster’s wrath.
“You can’t do that, Judge,” Eyster said.
Nadel said, “Why is that?”
“It flies in the face of established practice and reason.”
“There’s nothing in the statute that says I can’t take it under submission.”
“No, you can’t do that. It has to be done now. We don’t want to waste our time with this only to have you rule [throw it out] in the end.”
“Still, there’s nothing in the statute that says I can’t take it under submission.”
“I'm sorry. I don’t mean to argue with you, but you can’t do this. We have no remedy.”
“There’s nothing in the statute to keep me from taking it under submission, Mr. Eyster, and that’s what I’m going to do.”
The DA, seething, left the courtroom. Rosenfeld dropped in his chair and slammed his pen down on the table, glaring at the wall behind the judge. Ms. Brady tried not to laugh, and Judge Nadel sent for the jury.
Keep in mind that all the characters in this little drama are young people who have grown up in a drug-saturated culture, a culture which now presents its youth with One Choice: You either do or you don't.
The judge is somewhere in her forties, maybe a bit more, so she's young, too. The jury was also mostly youngish, as juries go, and this was a Mendocino County jury so it was reasonable to conclude that a certain number of them had inhaled. Repeatedly.
Spectators were studying the jurors and whispering their assessments: “That one I’m pretty sure is a pot smoker … and that one over there is probably a stoner, like the one seated behind her, too. Yeah, that one is, definitely. And I think you’re right about the other one, too…”
Closing arguments began with prosecutor Rosenfeld taking the lead. He said it was important to understand what the case was about.
“It’s not a referendum on marijuana,” he declared.
Rosenfeld also seemed to have been counting the likely potheads among the jurors, probably concluding that at least some of them were unlikely to buy any kind of Reefer Madness-Zero Tolerance argument.
“It’s just a DUI,” Rosenfeld said. “Not to minimize a DUI. People who are impaired and on the road are a serious problem and it is about all of our safety. Now, a DUI is about a time and a place. There’s two elements to a DUI. First, was the defendant driving? And second, was the defendant able to drive the vehicle with the caution of a sober person under ordinary circumstances. Now, for the next few minutes, I’m going to be talking about common sense and experience. I want you to take your common sense and experience with you into the deliberation room and use it to evaluate the credibility of the witnesses. And you will need your common sense and experience to interpret the evidence. Most of the evidence in this case is circumstantial, and circumstantial evidence is like a jigsaw puzzle: all the pieces have to fit together to make a picture.”
Rosenfeld referred the jurors to some photographs defense had provided. They showed red curb along the area where the defendant had been pulled over — rather, where the officer attempted to pull him over — on North State Street just past the Low Gap Road intersection.
The reason for the stop? Jackson had been traveling five miles per hour under the posted speed limit and had not pulled over promptly enough to meet the CHP officer’s satisfaction, hence the defense's emphasis on the red curb. Maybe he hadn't pulled over because it was illegal to stop at the red curb.
Rosenfeld then referred the jurors to some of prosecution’s photos which showed unpainted, pull-right-up curb along the same area. Stoner Dude could have stopped there, right? But the defendant had proceeded to the next intersection, then turned left and pulled over. Prosecution maintained that the delayed pull over was proof that Jackson was impaired to the point he was a danger to other motorists.
“There were numerous places to pull over,” Rosenfeld said. “In the big picture, we have all these pieces that fit together to show that the defendant could not safely operate that vehicle. We have his admission that he drank beer and smoked marijuana at 11:00, an hour and a half before he was pulled over. When you look at the field sobriety test that brings us to witness credibility — remember their behavior while testifying. Mr. Coleman of the Department of Justice has special training, and he gave his opinion that the defendant was impaired. Mr. Zender on the other hand gave us half-truths and lies. And defense didn’t tell you that he has a personal interest — he is co-owner with his wife in the Drug Detection Labs he works for. The only thing he said that was useful was that marijuana can impair your driving. The physiological test results were consistent with marijuana use — he (Jackson) had red conjunctivitis, pupils dilated, pulse elevated. So he was under the influence of marijuana. Does that influence translate into the impairment of the defendant’s ability to drive with the caution of a reasonable, prudent, sober driver? The defendant was going five to ten miles an hour slower in a 30 MPH zone, and it took him six to seven seconds to pull over after Officer Skeen put the red lights on. This shows that the defendant didn’t have the same situational ability to respond, so there can be no reasonable doubt that he was impaired and I would ask that you return a guilty verdict. Thank you.”
Deputy Public Defender Christine Brady prepared for her closing argument by setting up a podium and an easel. She began by telling the jury, “You’ve heard one side of the story. However, other facts need to be brought up. First, there’s the battle of the experts, which you all sat through diligently. Mr. Coleman from the Department of Justice — and his bias has been discussed — gave his opinion, based on speculation, that Mr. Jackson was impaired. Mr. Zender based his opinion on the same reports, and said there wasn’t enough information to say whether Jackson was impaired or not. So, when you go through everything they say, there’s still no proof of impairment. The time of use [of marijuana] and the amount, we can’t know that — whether enough was taken to cause any effect. What we do know is that it was in his system, and it’s not illegal to drive with marijuana in your system. In fact, we’ve had testimony that people drive every day with marijuana in their system.”
Not to mention multiples of prescribed chemicals and a host of other impairing factors, ranging from senility to inherent gross motor disability.
Ms. Brady took a breath and turned a page of her notes before continuing, “There was some talk about credibility of witnesses. Mr. Coleman from the Department of Justice refused to answer questions, and he was combative in the way he answered the questions he did answer. To my mind, he was not a perfectly friendly witness. He made it clear he was here not as a disinterested scientist, but to support the prosecution. Mr. Zender said a lot that was not helpful to our case, but he said there wasn’t enough information to decide if Mr. Jackson was impaired or not. Mr. Coleman said that having a good judgment of time was important for someone driving and Mr. Jackson showed in the FST [field sobriety test] that he was able to do that. When we talked about the slow driving, Mr. Zender said some people would drive slower [when on pot] and also weave. ‘A tracking issue,’ he called it. Coleman agreed. They both agreed someone would drive slower for a number of reasons — especially if an officer came up behind them. Decide what you will about that,” Brady told the jurors with a knowing look.
Only another cop wouldn’t instinctively let up on the gas pedal when a patrol car appeared in the rearview mirror. A cop looms up in our rearview mirror, the rest of us automatically slow down.
“What we’re talking about is reasonable doubt,” Brady resumed. “We have Mr. Jackson driving down North State Street at 1:30 in the morning. The speed limit changes from 25 to 30 miles per hour in about a quarter mile. We had the speed change in a short distance. He was going five miles per hour under the limit, but there was no traffic being impeded. The officer determined Jackson’s speed by ‘bumper pacing’ him. He followed until he noticed a license plate light was out, and then pulled him over — with the intention of finding a DUI. From the moment Mr. Jackson said, ‘I had a beer and smoked a joint’ all Officer Skeen was looking for was an excuse to arrest him. Officer Skeen had already made up his mind about Mr. Jackson’s guilt. But Mr. Jackson is innocent until proven guilty by you, not Officer Skeen.”
Brady then went to her easel and presented a chart with a list of categories.
“The burden of prosecution is to prove this case to the exclusion of every reasonable doubt. If you think it is ‘Highly Likely’ [points to the top of her categories] that Mr. Jackson was impaired, you must vote Not Guilty; if you think it is ‘Likely’ he was, you must vote Not Guilty; if you have a ‘Strong Suspicion’ he was, you must vote Not Guilty; if you are ‘Suspicious’ he was, you must vote Not Guilty; if you think that ‘Possibly’ he was, that’s not enough, you must vote Not Guilty; if you think it’s ‘Not Likely’ he was, you must vote Not Guilty. The People have a high burden: No reasonable doubt. This is a case of reasonable doubt. Thank you.”
Mr. Rosenfeld rose to rebut. He said, “I don’t have any fancy charts. All I have is the law.” He read a passage from a law book. He’s a by-the-book kind of guy. “That’s the standard we use. This is a case about a bad decision by the defendant who placed himself in this situation, and no matter what sympathy you may have for this defendant your job as a juror is to apply the law. You heard Dan Coleman be abrupt, curt and even rude. But the Department of Justice in Sacramento does one thing only — drugs. No alcohol, just drugs. Mr. Zander does both. You don’t need to give Jeff Zander’s testimony any weight. Do you honestly believe Officer Skeen was just out to get the defendant? Then that’s on you.”
The jury was out for only an hour, about as long as it takes to get seated and pick a foreman.
They found Jackson Not Guilty.