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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 92553
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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For Paul MJD: 1. Do you know if there is a standard reference

Resolved Question:

For Paul MJD:
1. Do you know if there is a standard reference manual that law enforcement uses for driving under the influence of cannabus that lets them know what level is DUI and what level is unimpaired? I ask that question because the States expert witness testimony is not consistent with any level of thc for dui that I have seen on the web. and all the ones on the web agree with each other.
This is Oklahoma.

2.A defendant had two charges 13 years ago and he is trying to get his sentence in a current charge suspended but the DA is bringing up an objection about these charges 13 years ago. His record has been clean since then until this current charge not similar to the other previous charges. I thought on deferred sentence the charges were dismissed after the probation was done properly and they no longer showed up on a person's record. Could you clarify this?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your new question and for asking for me.

1) The state labs in Oklahoma have reference manuals that describe the testing process and proper levels, they are not digital, thus you have to actually subpoena the manuals from them as these are the guidelines the state police labs use. The empirical data you are finding online are based on test data and are admissible as evidence as well, but you need to engage an expert to testify to have them admitted in the court and you cannot just admit the test results without proper foundation and authentication by an expert witness.

2) The OK lookback period is 10 years from “the point in time when the licensee begins to suffer the actual loss of driving privilege or from the imposition of restrictions on the driving privilege.” Not the date the person was arrested or convicted for the previous charge, even if those prior events happened outside of the 10 year look back period. See: Jobe v. State ex rel. Dept. of Public Safety, 2010 OK 50, (2010).

I am afraid that even though charges were deferred and they do not appear on a person's record, for purposes of subsequent convictions they can be used as prior offenses still.



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Customer: replied 1 year ago.


You said 1) The state labs in Oklahoma have reference manuals that describe the testing process and proper levels, they are not digital, thus you have to actually subpoena the manuals from them as these are the guidelines the state police labs use.

 

What do you mean by "they are not digital" is that some reference to not being available on the web? My question or complaint is even though OSBI has it's on books, what level causes a person to be DUI should be the same in all the books which ultimately come from the scientific community who does the studies. So OSBI should be in line with the rest of the scientific community. Am I right or wrong?

 

What I think we have here is not just some toxicologist who mistakenly lied under oath but knowingly lied under oath. So the only way to find out for sure seems to be to get the manuals they are using. Do I understand you correctly? And in order to get those manuals would a person have to first make formal charges against the toxicologist and then in a trial subpeona those books they use?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

Yes, I mean they do not have them online. OSBI should indeed be in line with all of the scientific studies and data, yes, you are right.

You should indeed get their manuals that this toxicologist used and you would then get your expert to testify to counter the testimony. You need to subpoena those books as part of the current case, not filing formal charges against the toxicologist.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 92553
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

What if the defendant gets their manuals and finds there is nothing in them to support what the toxicologist said in court under oath which means the toxicologist knowing lied under oath?


 


And most likely the prosecutors knew he was lying or even requested him to lie because this was a very politically important case for them. What would be the next step?


 


Have you ever heard of such a thing happening? (I would guess it goes on all the time.)

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

If you find the manuals contradict the testimony, you are going to have to try to argue on appeal that you objected to the testimony on that basis and now their own manuals prove it.

If you can prove the prosecutor got him to lie, that is grounds to vacate a conviction and get a retrial.

Yes, it happens all of the time. They had a toxicologist in Boston who admitted to lying about results in court and it resulted in over 1000 cases being reversed.
Customer: replied 1 year ago.


Ok. Sounds great. This is a case where the defendant has already gone through appeal and appeal was afirmed. The defense attorney did not object to the testimony and neither did the appeal counsel. The defendant's relative has now found an expert and studies that completely dispute the testimony of the prosecution's expert. The defendant has just filed application for post conviction relief. Studies have been attached and it is explained he has expert willing to testify prosecutors testimony is not based on science. So if the defendant can somehow get those manuals that prosecutor expert uses and it is shown that their is nothing in them to support his argument, the prosecution expert could really be in trouble couldn't he ? And the defendant get a new trial or case dismissed?

Expert:  Law Educator, Esq. replied 1 year ago.
This is part of his ineffective assistance of counsel argument, the defense attorney should have been all over this and the new expert and new appeal will have to explain that because of the ineffective assistance the defense attorney did not get the proper toxicology information.

The prosecution would simply have the case vacated on appeal. If you prove the prosecution intentionally lied, they could be in big trouble such as losing their license to practice law.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 92553
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

You said "The prosecution would simply have the case vacated on appeal..." Is that the same as the charge is dismissed or are you saying there would be a retrial?

Expert:  Law Educator, Esq. replied 1 year ago.
The court would vacate the conviction, it is up to the prosecution as to whether they want to try it again or dismiss.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 92553
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.


Back to trying to get the manuals used by state's toxicology expert witness at trial. Instead of the defendant trying to subpeona the books for his post conviction relief possible hearing, can he file a motion for discovery or motion to compel to get those books or pertinent pages of the book?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your new questions.

He has to file any request for the production under some court case, so filing the motion would come under the post conviction action. He needs to first subpoena before he can move to compel.

He has one other possibility, the book could arguably be a public record, since it is a document of a governmental agency and he can make a Freedom of Information Act (FOIA) request for the manual or the parts of the manual he is seeking without any subpoena and then if denied he would have to seek subpoena under his post conviction case.
Customer: replied 1 year ago.

If the defendant subpeona the manuals or pages would there already need to be a hearing scheduled and would he address the subpeona to the witness and explain exactly what he is looking for like: " I would like the manual or pertinent pages that say that 1-1.5 ng of thc causes driving impairment as you stated at trial case #XXXXX date, etc"? Also would prosecutor and judge be given copy of this subpeona?

Expert:  Law Educator, Esq. replied 1 year ago.
No, just for a subpoena, no hearing is needed. Also, he needs to try to file a FOIA request first before resorting to a subpoena.
Customer: replied 1 year ago.

Is the request directed to the toxicology expert or to the toxicology department in general? I am concerned about directly contacting a prosecution witness or former witness. Couldn't this be a problem for the defendant? This is why I asked the question if there could be some kind of motion like discovery to have the prosecution get this information for the defendant.The defendant does not have a lawyer and he is in jail so a relative will have to do most of this for him. He will be able to sign whatever is necessary.

Expert:  Law Educator, Esq. replied 1 year ago.
The request for a FOIA request is directed to the public records or public information office of the State Police Lab. This is a valid request you or your son can make and it is not an issue. If they deny the request, then your son files for a subpoena for the information and serves it on the lab and if they do not respond then he files a motion to compel
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 92553
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

You said above "If you prove the prosecution intentionally lied, they could be in big trouble such as losing their license to practice law." It would seem to me that an experienced prosecutor, probably having handled many marijuana cases would know that 1.1 ng of thc would not have any effect on a person and therefore this was clearly a conspiracy between the DA and the toxiclogist to win this case. (This was a very important high profile, political case) What do you think?


 


And if this was a conspiracy, not only could the prosecutors involved lose their license wouldn't this be a felony for the prosecutor as well as the toxiclogist?


 


Also I just found out there is a state department that certifies the toxicoligist that work for the state on a yearly basis, couldn't I go to them and let them know that a toxicologist said something under oath that is not consistent with any scientific study?


 


 

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response and new question.

What the prosecutor knew or did not know about the marijuana still must be proven in the court. While you may suspect they should have known better, these prosecutors handle more than just marijuana cases and quite honestly most know nothing about most areas they are prosecuting and that is why they have to put experts on the stand.

Yes, if you prove a conspiracy, it could indeed lead to felony charges for all.

You can indeed report the toxicologist to his certifying agency.
Customer: replied 1 year ago.


What could the charges be for DA if found to be conspiracy?


 


Also if I report this to the certifying agency and they investigate and find out that in fact toxicologist did not have any scientific basis to make his statement, wouldn't that void his testimony in court and cause the sentence to be vacated?

Expert:  Law Educator, Esq. replied 1 year ago.
The charges would be suborning perjury or assisting in perjury, which is assisting in presenting false testimony to the court.

The agency will have no choice but to conduct an investigation into your charges and if they find impropriety, then they have to report it to the courts.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 92553
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

You mentioned the agency would have to report it's findings to the court. If the findings were that there was no scientific basis for what the expert testified to in court, what would the judge do?


 


Also could a person make a complaint to the attorney general that he suspects there was suborning perjury by the DA and give the attorney general his reasons for the suspicion?

Expert:  Law Educator, Esq. replied 1 year ago.
The agency would report wrongdoing to the state and the court, yes. If the findings were that he lied about the effects to secure a conviction, the court has no legal option but to reverse or vacate the conviction and then it is up to the DA to decide whether or not to try him again.

Yes, you could make a complaint about perjury to the Attorney General, but you would have to have some evidence to back up that claim as well, not just your suspicion.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 92553
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 2 other Criminal Law Specialists are ready to help you

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Law Educator, Esq.
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