My automated monitoring of the Internet for interesting stories about DUI prosecution around the country, to make me a more full informed Charleston DUI Lawyer, has led me to this story from Oregon which I dissect for you. Instead of just passing the story along, I am compelled to do so with a host of comments.

The Oregon State .01 breath test DUI arrest

That old adage rears its head again-truth is strangfer than fiction. You can’t make this stuff up.

As reported in media outlets, Leah Bailey, age 23, on October 18, in Eugene, Oregon had one beer one night and no drugs. So what? She was locked in a cage for DUI.

While the very nature of DUI or DWI in any state in this country, by basic definition, requires an element of impairment from alcohol or drugs, that clearly established law didn’t afford Ms. Bailey much relief from imprisonment.

Could this happen in Charleston SC? How would an experienced DUI lawyer in Charleston approach such circumstances?

Despite the obvious relationship of DUI to alcohol or drugs, the police who arrested her and put her in jail concluded that there was probable cause to put her there, for the crime of DUI.

Bailey was candid with the officers who stopped her for “erratic” driving and who administered field sobriety tests to her. She related that she had one beer. Testing revealed that she was telling the truth.

Sometimes that doesn’t matter, I regret to report.

For more on the issue of being accused of a crime you did not commit, see, The Trial by Kafka the next rainy day that comes your way.

Truth be damned, the Oregon officers concluded that when Ms. Bailey blew a .01, something else was involved. By the way, .01 is .01 of one percent or, expressed as a quantity, not a percentage, is .0001 ethanol in her blood as measured through another medium, her breath converted mathematically. (more on that in another post). Simply put, calcuations are used that warrant scrutiny.

Well. As assumptions are apt to rule mistaken thinking, the assumptions the police made was that Ms. Bailey was impaired and DUI because she had smoked marijuana. Quite a leap.

Driven buy their assumption of her guilt, the police assumed there was some sort of alcohol-marijuana mix.

Police Making Assumptions

Trust me on this one. I have 34 years in this field. I have arrested people, prosecuted them, judged them and defended them.

Free people do not want police, to whom we give the power to put us in a cage, to assume anything. Or “think” something. Nor does our constitution allow.

“Think” is NOT in any criminal code in any state in this great country or in the US Constition or the constitutions of any state in the Union.

The Oregon City prosecutor who dismissed Ms. Bailey’s case eventually made this comment to the press in a poor effort to defend the actions of the police.

Prosecutor Barkovic told reporters that the arresting officer did “what he was supposed to do. Police cannot “let people drive off if they think they are impaired.” THINK they are impaired?

THINK. Why is this scary? What if I think you committed murder and I am a police officer. I think so because you lawfully possessed a weapon in your car, you looked like a killer and murder is against the law.

Worried yet?

Bad to Worse

The Oregon arresting officer concluded that Ms. Bailey was driving under the influence because she was unsteady, her eyes were red and dilated.

REMEMBER. The officer is not a doctor. Nor does it appear that he made any effort to determine if his observations of Ms. Bailey were a result of factors having NOTHING to do with the ingestion of anything more than one beer, a long day, being in a smoke filled room, or other innocuous explanations. What is the police officer’s duty? Is it not his job to document evidence of innocence on the investigative path to truth, or just collect evidence of guilt?

At the station, Ms. Bailey agreed to blow into the machine and the breath test result was .01. Officer Stone,  whose primary task on patrol was DUI enforcement, assumed or “thought” that marijuana might be involved.

So, Stone brought in an expert-like a consult in the ER. He brought in an officer who was trained and certified in DRE. I will address this junk science in detail in another post. Suffice it to say at this point that the reliability of DRE or “Drug Recognition Evidence” is patently established as junk science right here in Ms. Bailey’s case!

DRE expert Officer Paterson concluded when applying his DRE training and expertise, that Ms. Bailey was under the influence of marijuana.

Incriminating DRE Evidence

Well. That explained it all. Mystery solved. At least to Officer Stone.

But there was a problem. In the US of A, no citizen has to prove himself innocent. This is a fundamental aspect of our freedom. But, since Ms. Bailey asserted that she wasn’t DUI  and was happy to prove that, she not only consented to a breath test, but, after Officer Paterson’s expert assessment that she was under the influence of marijuana, she consented to a urine test for marijuana use.

Ms.Bailey, still committed to honest disclosure, advised that she had smoked marijuana a number of days ago, (which could not have impaired her driving that night),but was still willing to provide a urine sample and did so.

She provided a urine sample that was NEGATIVE for marijuana.

Now what?

However, after her arrest and release on bond, the matter moved along through the prosecution process. Not until Oregon police lab scientific analysis of her urine sample was returned on November 20th, was it determined that was no indication that she was “impaired” by marijuana. Likely due to the fact that no marijuana was detected in her station house-provided urine sample.

Imagine that.

The Scary Point I Am Trying to Make

The arresting officer addressed the media about the case. His comment should be as scary as the suggestion that you could be arrested for murder in the morning on the way to work because a law enforcement officer thought you had committed murder.

He said these words: “it doesn’t happen that often that we’d find someone impaired at that (.01 percent BAC) level” without a suspect also having used illegal or prescription drugs that could affect their driving.”

Hold On

Is he actually saying that since we rarely find a driver who isn’t impaired from alcohol ingestion, the driver must be impaired from the use of marijuana even though our own tests reveal that marijuana was not used?

Please read the previous paragraph again if you aren’t concerned about this sort of newspeak George Orwell himself warned us about.

“I Was Definitely Frustrated”

This was the concession made by Ms. Bailey. She concedes that she was frustrated after being pulled over.

One beer? Accused of drunk driving? Who wouldn’t be frustrated? No drugs either?

So is a woman’s frustation over being accused of a crime she did not commit evidence of commission of the crime? Of course not.

Older readers will remember, younger might not imagine, that at one time in South Carolina, the uniform traffic ticket had a space on it for an officer comment as to a driver’s “attitude.” No kidding.

After many years, it was realized that “attitude” was not a criminal offense in South Carolina and that accordingly, “attitude” had nothing to do with speeding. This block on the ticket for “attitude” was removed.

Nor does frustration qualify as a criminal offense. In fact, maybe the officers’ observation of this would have better been interpreted as what it really was- an assertion of innocence and frustration over being treated as a liar.

Was Ms. Bailey simply complaining because she was being accused of a crime that she did not commit?

And what is wrong with that?


Never Been Arrested

Bailey had never been arrested. This experience was meaningful for her. Yet not in a good way.

“It was pretty scary, and probably not the best way to learn how the police and the courts work.”

Out of the mouths of the innocent…

Could This Happen to A Person In Charleston SC?

Unfortunately, yes. Here’s why.

It seems that Oregon doesn’t have a statutory provision that is in place in South Carolina. In South Carolina, a person who submits to breath testing where the breath test machine reflects that the reading is .05 of one percent or less, the person is conclusively presumed to not be under the influence of alcohol.

But here is the twist.

Police officers are allowed to arrest citizens but cannot un-arrest them. This function is allocated to judges who set bond unless preset bond amounts allow for a person’s release upon posting such an amount with the police agency or jail.

If Ms. Bailey was arrested in South Carolina, and produced a similar breath test reading of .01 of one percent, she would be presumed to not be under the influence of alcohol.

Yet, she would spend the night in the Charleston County Jail presumed innocent by established law.

Tell me how that makes sense, is fair or complies with constitutional guarantees.

Please visit us at

<a href=””>Google</a>

Tim Kulp, Charleston DUI Defense Lawyers represents drivers arrested for DUI and DUAC in Charleston, North Charleston, Mt. Pleasant, Summerville, Goose Creek, Hanahan, Moncks Corner, Ladson, James Island, West Ashley, Folly Beach, Sullivans Island, Isle of Palms, Awendaw, McClellanville and the surrounding areas.

Ready to Speak with an Attorney?

Contact Timothy Kulp to discuss your situation.

Get in Touch