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Sunday, March 26, 2023

Bell Island

Island & Huff Law OfficeBell Island is Nebraska's only Board Certified Specialist in DUI Defense by the National College for DUI Defense. Read More




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Welcome to Island Law Office, PC, LLO located in Gering, NE. Island Law Office built their practice on dedicated legal representation founded on strong client relationships. We pride ourselves on our accessibility and responsiveness to your needs.

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(308) 633-4040
1428 10th Street, Gering, NE 69341

In Nebraska possession of marijuana and hash is a crime.  Although hash is just concentrated marijuana, the state has made its possession a felony.  The problem is that the state cannot prove that what they suspect is hash, is hash.  All they can prove is that it is THC.
Just because someone thinks a particular drug is coke, or meth, or hash, doesn't make it so.  It has to be tested.  In order to test the substance, the state lab uses a gas chromatography/ mass spectrometer or gc/ms. The machine does not know what a substance is, it has to be taught.  The teaching process is called a method, a series of steps to demonstrate that the information you receive from the machine means that a particular substance is what the machine says it is.

However, marijuana and hash is tested for the same contents, THC.  It is only the concentration of THC that takes marijuana to hash.  Unless the machine is taught to look for the concentration of THC, it cannot call a substance hash.  
I had a suspicion that the lab was unable to identify the hash.  That suspicion was proven correct when I made a freedom of information act request to the lab.  The lab sent me documentation that it is unable to determine a substance is hash, and can only determine the substance is THC.  Without the test, the substance is nothing more than common marijuana.
Just because the government says it's so, doesn't make it so.  You have to look at their investigation, their tests, and their evidence.  Many times it just may show that they cannot prove their case.

Breath tests are based on assumptions.  Assumptions that there is a ratio between the alcohol in the blood and the alcohol in the breath.  These assumptions are based on Henry's law.   A law that states in a closed container, at a constant temperature and a constant pressure, you can calculate a ratio between the liquid and the gas.  However, the body is not a closed container, and when the body is absorbing alcohol, breath can overestimate the blood by up to 230%.  That's a number that cannot be ignored.
While alcohol is being absorbed, a breath test will overestimate a blood test.  This absorptive time can last up to 195 minutes with a range of 60-120 minutes in a fasting person.  Long after a person has consumed alcohol, the breath test can improperly calculate the blood alcohol content.  As Simpson pointed out in Accuracy and Precision of Breath Alcohol Measurements for Subjects in the Absorptive State, Clin. Chm. 33/6, 753-756 (1987), "Breath testing is not a reliable means of estimating a subject's BAC during absorption."
When a driver is stopped and then tested within two hours of drinking, the test is most likely an overestimation.  If it's likely to be from 30% to 230% high, that may bring your client below the limit.  This is especially helpful if your client's appearance is inconsistent with her Brac result.  The next time this happens, you can point this out to the government's "expert" to demonstrate your client was below the limit.

Whenever the police see a person who acts in an unexpected way, they believe they are under the influence.  Rather than consider the likely options, such as a medical condition, the police jump right to the conclusion that a person is impaired by drugs.  Many times, the person would be impaired if they failed to take their prescription medication.

Because officers assume it's impairment, clients need someone who is familiar with the Drug Recognition Evaluator (DRE) program and can point out where the officer made a mistake.  In a seven-day training course, a DRE now has the same ability to diagnose a person as a doctor and pharmacist.  This is incredible, but what has been deemed acceptable, and admissible, in court,.   

If your attorney is not familiar with the DRE program, doesn't know how to attack it, and doesn't know where the problems are, the lack of familiarity can end of turning a medical condition into a criminal conviction.  When selecting an attorney for a case involving your prescription drugs, make sure they know what the officer is supposed to do.  Your attorney cannot go along because the officer says so, but call the officer out for making assumptions.

The age-old question of what you do when you are contacted by the police.  Many times, we want to cooperate and explain why they have it wrong.  The problem is, once the police think you did something, you are now the suspect and the questions are aimed at proving your guilt.  When faced with this scenario, it is usually best to have an attorney present and involved to make sure there is no confusion.

This is not to say that the police are out to get you, most are not.  However, based on their training and experience, they make snap decisions and then investigate to corroborate what they already know.  Once they think you've done something, they only look for facts to support their conclusion.   

As an example, the first person to call the police is usually the victim.  It has happened on more than one occasion in an assault case that the person who calls the police, was the person who started the fight.  The "victim" throws his punches and then runs to the police to report how they were assaulted.  The police now have one side of the story, the story that says you are guilty.  That's where their investigation begins.

Another problem is that after traumatic events, people don't always remember clearly.  People confuse facts and make mistakes.  Police do want the correct story, and if you ask for an attorney, that buys time for your nerves to settle.  Once you have discussed your case with your attorney, they can help ensure the police understand what happened.  This helps to ensure a proper and correct investigation.

When clients are faced with talking to the police, they should ask for an attorney to be present.  The client should talk to their attorney and make sure the information given to the police is correct and accurate.  If the police learn the whole story, and not just the pieces they believe happened, you can prevent a criminal charge or the risk of trial.

What do SFSTs mean?  How do they assist the officer?  As DUI Practitioners, we know how little they demonstrate sobriety.  As a DUI Defense attorneys, we know the unfortunate weight given to these tests by judges and jurors.  However, as Dr. Greg Kane notes, "The science proves SFSTs do not work."  Dr. Kane evaluated the Sand Diego study date in, Crying Wolf, What never before published data proves about Standardized Field Sobriety Tests, in Trial Talk, August/September 2008, issue p. 35:

The review demonstrated what we already knew, or suspected.  As Dr. Kane says, "When drivers are impaired, the SFST cries 'impaired.'  When drivers are not impaired, the SFST still cries 'impaired'".  So no matter how you perform, you will be "impaired".

The next time you need to show the SFST's mean nothing, especially for a motion to suppress, look at Dr. Kane's article and the statistical analysis of the data.  The results on SFSTs mean nothing, and maybe that's what your judge needs to sustain your motion to suppress.