DRUGGED DRIVING ESSENTIALS - American Judges Association

Report
DRUGGED DRIVING
Hon. Peggy Fulton Hora
Judge of the Superior Court (Ret.)
“Huffing” not OWI
Operating while intoxicated (OWI)
is limited to alcohol or drugs
 An “intoxicant” is limited to a
 controlled substance, a controlled
substance analog, or a drug
 DFE (air spray can propellant)
doesn’t fit statute

Learning Objectives
As this result of this session, the judge will be
able to:
• identify important elements in a drugged
driving case;
• rule on unique legal issues that arise in these
cases; and,
• effectively craft sentences to reduce drugged
driving and increase public safety
SCOPE OF THE PROBLEM
More Drugging and Driving than
Drinking and Driving
More drivers tested positive for
drugs that may impair driving (14
percent) than did for alcohol (7.3
percent).
 Of the drugs, marijuana was most
prevalent, at 7.4 percent, slightly
more than alcohol

CA OTS Roadside Survey Nov. 19, 2012
In a Nutshell
1:8 weekend, nighttime drivers
test positive for illicit drugs
 1:3 (33%) drivers killed in traffic
crashes who were tested, and their
results reported, tested positive for
drugs

NHTSA
Drivers under 25
1:4 (23%) of fatally injured drivers
who tested positive for drugs were
under the age of 25.
 Almost half (42%) of fatally injured
drivers who tested positive for
marijuana were under the age of
25.


NHTSA

The percentage of mortally
wounded drivers who later tested
positive for drugs rose 18 percent
between 2005 and 2011
“Stoned driving epidemic puts wrinkle in Marijuana debate,” AP (Mar. 18, 2012)
1/3 deaths + for drugs


33% of all drivers with known drugtest results who were killed in
motor vehicle crashes in 2009
tested positive for drugs (illegal
substances as well as over-the
counter and prescription
medications
According to the Fatality Analysis Reporting System (FARS),
Teen drivers

Over 12% of high school seniors
admitted to driving under the
influence of marijuana in the 2
weeks prior to the Monitoring the
Future survey
“Drugged driving,” NIDA Infofacts, (2010)
True or False?

Marijuana is the most common
illicit drug in DD cases.

TRUE

Of the 16.3% of drivers positive for
drugs, 11.3% were positive for
illegal drugs, 3.9% for medications
and 1.1% for both illegal drugs and
medications. The most common
illegal drugs were cannabis (8.6%),
cocaine (3.9%) and
methamphetamine (1.3%)
NHTSA


Drugs other than alcohol (e.g.,
marijuana and cocaine) are
involved in about 18% of motor
vehicle driver deaths. These other
drugs are often used in
combination with alcohol
"State of Knowledge of Drug-Impaired Driving,“ NHTSA 2003
What drugs?
Most common were marijuana and
stimulants (cocaine and
amphetamines)
¼ were positive for marijuana
~¼ stimulants
May not be causal e.g., people who use
drugs may drive more dangerously

Voas, Robert B., Ph.D., Journal of Studies on Alcohol and Drugs (July 2011)
Tip of the Iceberg
•Every state
reports BAC in
fatal crashes
•Only 20
states test for
and report
illicit drugs
Governors Hwy Safety Assn.
The new GHSA policy, adopted Sept. 28, 2011 encourages states
to:
* Amend statues to provide separate and distinct sanctions for
alcohol and drug-impaired driving;
* Develop standard protocols or procedures for drug testing labs
to use in identifying drugs that impair driving;
* Provide increased training to law enforcement on identifying
drugged drivers utilizing approaches such as the Advanced
Roadside Impaired Driving Enforcement (ARIDE);
* Increase the testing and reporting of drug testing information on
fatally injured drivers; and
* Provide increased training to prosecutors to help in successful
prosecution of drug-impaired drivers.
GHSA, Sept. 28, 2011
2010 Nat’l Drug Control
Strategy
Goal to reduce drugged driving in the United
States 10% by the year 2015
Preventing drugged driving a national priority
on par with preventing drunk driving
1.
2.
Encourage states to adopt per se drug
driving laws,
Collect further data on drugged driving.
“Drugged Driving,” ONDCP
Drug Control Strategy, cont.
3.
4.
5.
Enhance prevention of drugged driving
by educating communities and
professionals,
Provide increased training to law
enforcement on identifying drugged
drivers, and
Develop standard screening
methodologies for drug testing
laboratories to use in detecting the
presence of drugs
New ad campaign


ONDCP and MADD launched a new
information campaign calling on
parents to become more aware of
this dangerous trend of teens and
drugged driving
“White House and MADD join forces against drugged driving,”
CNN 10-13-11
United Nations


Recognizes the importance of a
coordinated approach to
addressing the health and public
safety consequences of drugged
driving, through evidence based
research and collaborative efforts
United Nations Office on Drugs and Crime, 2011 Session of the Commission on Narcotic
Drugs (CND), Resolution 54/2
HOW DRUGS AFFECT DRIVING
Behavioral domains relevant to
driving
1.
2.
3.
4.
5.
Alertness and arousal
Attention and processing speed
Reaction time and psychomotor
functions
Sensory-perceptual functions
Executive functions
NHTSA (2009)
Marijuana vs. Stimulants
•
•
•
•
Marijuana linked to speeding and
seatbelt non-use
Stimulants linked to all types of crash
fatalities
When someone uses alcohol and
another drug, alcohol is main reason
for impairment
Alcohol is still the largest contributor
to fatal crashes
“Deadly Drugged Driving: Drug Use Tied to Fatal Car Crashes,” SceinceDaily (June 23, 2011)
How does MJ affect driving?
Marijuana studies
delta-9-tetrahydrocannabinol (THC )
affects areas of the brain that
control the body’s movements,
balance, coordination, memory,
and judgment, as well as
sensations
“Drugged driving,” NIDA Infofacts, (2010)
Marijuana studies, cont.
A meta-analysis of approximately 60
experimental studies—including
laboratory, driving simulator, and onroad experiments—found that
behavioral and cognitive skills related
to driving performance were impaired
with increasing THC blood levels
“Drugged driving,” NIDA Infofacts, (2010)
Marijuana studies, cont.

Evidence from both real and
simulated driving studies indicates
that marijuana can negatively
affect a driver’s attentiveness,
perception of time and speed, and
ability to draw on information
obtained from past experiences
“Drugged driving,” NIDA Infofacts, (2010)
Marijuana studies, cont.


Research shows that impairment
increases significantly when marijuana
use is combined with alcohol
Studies have found that many drivers
who test positive for alcohol also test
positive for THC, making it clear that
drinking and drugged driving are often
linked behaviors
“Drugged driving,” NIDA Infofacts, (2010)
Marijuana studies, cont.


A study of over 3,000 fatally injured
drivers showed that when marijuana
was present in the blood of the driver,
he or she was much more likely to be at
fault for the accident.
The higher the THC concentration, the
more likely the driver was to be
culpable
“Drugged driving,” NIDA Infofacts, (2010)
Marijuana studies, cont.
driving after smoking marijuana
might almost double the risk of
being in a serious or fatal crash.
 NIDA says an easy-to-use roadside
saliva test that can determine
recent marijuana use — as
opposed to long-ago pot use — is
in final testing stages and will be
ready for police use soon.

“Stoned driving epidemic puts wrinkle in Marijuana debate,” AP (Mar. 18, 2012)
Marijuana studies, cont.



Eight of the nine studies found drivers
who use marijuana are significantly
more likely than people who don’t use
marijuana to be involved in motor
vehicle crashes.
MJ users more than 2xs more likely to
be involved in a crash
“Marijuana Use By Drivers Linked With Increased Risk of Motor
Vehicle Crashes,” Join Together, Oct. 7, 2011
Latest research




Driving under the influence of cannabis almost
doubles the risk of a serious crash
Risk is substantially higher if the driver is aged
under 35
Overview of nine previously-published papers which
looked at more than 49,000 people
These investigations were deemed to be of high
quality because the driver had given a blood sample
after the accident or admitted to smoking cannabis
prior to the crash
British Medical Journal 2/12
“Recent use”?

A recent study found that among
chronic cannabis users,
performance on driving related
tasks was affected as much as
three weeks after drug use was
stopped.
Psychomotor Function in Chronic Daily Cannabis Smokers during Sustained Abstinence
(2013) Wendy M. Bosker, Erin L. Karschner, Dayong Lee, Robert S. Goodwin, Jussi Hirvonen,
Robert B. Innis, Eef L. Theunissen, Kim P. C. Kuypers, Marilyn A. Huestis, Johannes G.
Ramaekers. PLOS ONE 10.1371/journal.pone.0053127
What about “medical” MJ?
“Medical” Marijuana Sale
“Spring Compassion Special”
My 420 Tours
“Colorado Locals Start
Marijuana Tourism Business”
sets travelers up in "pot-friendly"
hotels
 takes them on tours of marijuana
dispensaries
 secures tickets to pot-related
events
 First tour sold out

Aging Boomers
“Huffing” not OWI
Operating while intoxicated (OWI)
is limited to alcohol or drugs
 An “intoxicant” is limited to a
 controlled substance, a controlled
substance analog, or a drug
 DFE (air spray can propellant)
doesn’t fit statute

Rx and O-T-C Drugs

Driving
impairment can
also be caused by
prescription and
over-the-counter
drugs
Use of Rx drugs

Almost 70 percent of Americans
take at least one prescription
medication
Join Together, June 20, 2013
Drugged Driving


Illicit use of Rx pain medication is second only
to marijuana as the most commonly used illicit
drug on a college campus now.
Young women were more likely than young
men to use Rx medication but young men were
more likely to divert their prescriptions to
contemporaries.
McCabe, SE, et al., “Illicit use of prescription pain medication among college students,” Drug and Alcohol
Dependence, 77:37-47, 2005
True or False?

A person impaired by Xanax
(Alprazolam) will appear similar to
one intoxicated by alcohol?
TRUE
“Sleep aids”

Nearly 3 in 10 American women
use some kind of sleep aid at least
a few nights a week according to
the National Sleep Foundation
“Mother’s New Little Helper,” The New York Times (Nov. 6, 2011)
FDA Warning Jan. 2013



Ambien, Ambien CR, Edluar, and
Zolpimist
Risk highest for patients taking
extended-release forms (Ambien CR
and generics)
Women appear to be more susceptible
to this risk because they eliminate
zolpidem from their bodies more slowly
than men
Antidepressants
Abilify, Cymbalta, Elavil, Paxil, Zoloft
Use up 400% in two decades
 11% of people over 23 are using
 Third most common drug for 18-44
year olds

Pratt, Laura A., et al., “Antidepressant Use in Persons Aged 12 and Over in the United States,
2005-2008,” NCHS Data Brief No. 76 (Oct. 2011)
Antiidepressants, cont.
Antidepressants increase crash
risk
 Even high doses of antipsychotics
NOT associated with an increased
risk of a serious crash

British Journal of Clinical Pharmacology (Sept. 13, 2012)
“Do Not Operate
Heavy Equipment”
Rx studies
 Two
meta analyses of
benzodiazepines (Ativan,
Xanax, Valium) showed 60-80%
increased crash risk
 Increase of 40% for crash
responsibility
 Benzos with alcohol increase
risk 8xs
Rx studies, cont.


Bipolar meds (tricyclic
antidepressants) may increase crash
risk for those >65
Sedative antidepressants (Elavil) and
pain meds (Vocodin, OxyContin) may
increase crash risk
“Effects of benzodiazepines, antidepressants and opioids and on
driving: A systemic review and meta analysis of
epidemiological and experimental evidence,” AAA Foundation
Report (2010)
Affirmative Defense

Arizona vs. Fannin 1 CA-CV 110615 (Aug. 2012)



“Section 28-1381(D) provides a narrow safe harbor
for a defendant charged with violating 28-1381(A)(3).
“A person using a drug as prescribed by a medical
practitioner licensed pursuant to [A.R.S. T]itle 32,
[C]hapter 7 [podiatrist], 11 [dentist], 13 [medical
doctor] or 17 [osteopath] is not guilty of violating”
28-1381(A)(3). A.R.S. § 28-1381(D).
D must prove by a preponderance of the evidence
that he used prescription drugs as prescribed by a
licensed medical practitioner.
“Drug” determines attitudes

DISCUSS:

Is there a difference between
driving impaired by prescribed
medication vs. methamphetamine?
PER SE AND NON-PER SE LAWS
There’s no .08 for other drugs


No clear cut correlation exists between
concentrations and impairment.
It is impossible to establish agreement
concerning universal concentrations at
which drugs cause impairment and
when they do not.
19 States Have Per Se
10.
1.
2.
3.
4.
5.
6.
7.
8.
9.
AK*
AZ
DE
GA
IL
IN
IA
MI
MN
11.
12.
13.
14.
15.
16.
17.
18.
19.
MS
NV
NC**
OH
PA
*Included in DWI statute
RI
** Schedule I controlled
SC* substances
UT
Governors Highway
VA Safety Association GHSA
(May 2012)
WV
It’s complicated

The therapeutic and toxic
concentration of drugs may overlap
and are a function of:
• How long individual is on drugs
• Tolerance
• Metabolic status
Gold Standard

Impairment is best proven by
observation of aberrant driving
pattern, failed SFSTs, DRE
assessment, and toxicological
analysis supporting conclusions of
impairment.
Saliva test for recent use
National Institute on Drug Abuse
(NIDA) reports there will soon be a
saliva test to detect recent
marijuana use
 The saliva test currently being
developed still won’t detect levels,
only whether the person has
smoked recently or not

"I'll be dead — and so will lots of
other people — from old age,
before we know the impairment
levels [for marijuana and other
drugs].”
 Gil Kerlikowske

“Stoned driving epidemic puts wrinkle in Marijuana debate,” Associated Press (Mar. 18, 20120
Per se laws

Began with .08 standard for alcohol

BUT lack of experiments and evidence
on “drugged driving”
Per Se Law

“It shall be a misdemeanor for any
person to drive with any amount of
the drugs listed on Schedule I, II, III
as found in Section 12345.”
Per se states

Arizona, Delaware, Georgia,
Indiana, Illinois, Iowa, Michigan,
Minnesota, Nevada, North Carolina,
Ohio, Pennsylvania, Rhode Island,
South Dakota, Utah, Virginia, and
Wisconsin
Strict liability for drugs
Even a trace amount of
methamphetamine is enough to
convict
 Strict liability statute
 Level of impairment need not be
proved

Illinois v. Martin, No. 109102, Ill. Supreme Court (4-21-11, Rehearing den.)
First Director of NIDA
“The zero-tolerance per se
standard (where any detectable
level of an illegal drug in a driver is
a violation – and not a measure of
impairment) is the only workable
standard to use.”
 Dr. Robert DuPont

“Medical” marijuana

Denial of equal protection to prosecute
marijuana users since ”medical” marijuana
users couldn’t be prosecuted under per se
Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999)

No so cocaine since there is no legal use
except topically
Keenum vs State 248 Ga. 474; 546 SE2d 288 (2001)
Non-per se laws
Behavior based, i.e., must be
“impaired” or “under the
influence”
 Evidence collected by police
 Biological specimen (blood,
breath, urine) or refusal

Prosecutor may need
Expert witness in drugs such as

Advanced Roadside Impaired
Driving Enforcement (ARIDE)

Drug Recognition Expert (DRE)
DISCUSS:
Should we legislate zero tolerance
for all substances including illicit,
prescribed and over-the-counter
medications that can impair
driving?
Non-Per se states

Arizona, Delaware, Georgia,
Indiana, Illinois, Iowa, Michigan,
Minnesota, Nevada, North Carolina,
Ohio, Pennsylvania, Rhode Island,
South Dakota, Utah, Virginia, and
Wisconsin
Discuss:

What about “medical” marijuana?

Is that any different from alcohol?

What about Federal law?
UNIQUE LEGAL ISSUES
What’s different?
Drugged driving vs. alcohol vs.
combo
 May affect lay or expert opinion
 Public perception
 No measurable level of substance
that may impair (i.e., no .08 for
other drugs)

Initial Stop
What are the signs of impairment?
 Use of Horizontal Gaze Nystagmas
(HGN)?
 Physical evidence, e.g., open
container vs. joint in ashtray

Law and Motion/Pre-Trial/
Voir Dire
Suppression issues
 Motions in Limine
 Voir dire issues (reluctance with
marijuana; prejudice about other
illicit drugs?)

Admissibility
Daubert /Frye scientific validity of
test or device utilized.(HGN,U/A or
other testing device)
 SFSTs in drug cases

Right of confrontation
Bullcoming v. New Mexico 557 U.S.
___ (2011) (5:4)
 May not introduce a forensic lab
report containing a testimonial
certification through the in-court
testimony of another scientist.
Confrontation, cont.

The defendant has a right to be
confronted with the analyst who
made the certification, unless he or
she is unavailable at trial, and the
defendant has had an opportunity
to cross-examine him or her prior
to trial.
Bullcoming Dissent

Justice Kennedy authored a
dissent, joined by Justices Breyer,
Alito and Roberts. “[R]equiring the
State to call the technician who
filled out a form and recorded the
results of a test is a hollow
formality.”
Jury Attitude
Might the drug effect the verdict?
 Methamphetamine, heroin,
marijuana vs. O-T-C drugs?
 “The CSI effect”. How much
science does a jury want to
convict?

See: Court Review Vol. 47; No. 1-2 (2011)
BAIL CONDITIONS
Bail Issues in DD
Purpose: To assure the court that
the defendant will make future
court appearances
 More modernly, primary purpose is
public safety

The Federal Bail Reform Act 1966
• Nature and circumstance of the offense.
• Weight of evidence.
• Family ties.
• Employment.
• Financial resources.
• Character and mental condition.
• Length of time at current residence.
• Record of convictions (including juvenile).
• Appearance record at court proceedings.
Make a List of Possible Bail
Conditions in a DD Case
1.
2.
3.
4.
5.
Abstinence
Testing for AOD
No driving without valid license,
insurance, registration
Assessment for substance abuse
or dependence
Supervised release
Bail conditions, cont.
6. Electronic monitoring
7. Curfew
8. Others?
Warrantless Search
Is the bail condition of a
random, warrantless
search of person,
personal effects,
premises, and vehicle,
lawful?
Case Facts
Defendant arrested for
possession of 13 oz of
marijuana. As condition of bail,
defendant agreed to random,
warrantless search of his
person, personal effects,
residence and vehicle.
Bond Wording

"Additional conditions which I
agree to obey are:" [appear the
following in handwriting] "No use
or poss. of illegal drugs -- no use +
poss. firearms or other dangerous
weapons -- Must submit to random
search and/or testing of person,
residence and/or vehicle.”
Defense argues
Condition was illegal because
 not authorized by statute,
and
 unconstitutional because it
th
violates 4 Amendment
rights
State argues
th
4
amendment rights may be
voluntarily waived. Mere
custody does not amount to
coerced consent.
Result
Is the bail condition of a
random, warrantless search
of person, premises, and
vehicle, lawful?
MAYBE
May have search clause
during bail
May consent to search as a
condition of bail
 State v. Ullring 741 A2d 1065
(Maine) (1999)

Conflicting Cases
Bailee is not in same position
as probationer re:
presumption of innocence
U.S. v. Scott, 450 F.3d 863, C.A.9
(Nev.), 2006
U.S. v. Scott
The holding and rationale set forth
in Scott have not been adopted by
any other circuit court since the
amended decision in that case was
issued by the Ninth Circuit
 New Wyoming law may test the
case
Probable Cause Required?
Is random drug testing of
defendant on bail
unconstitutional absent
probable cause?
Case Facts
Defendant was arrested for
drug possession. Defendant
agreed to "random" drug
testing and to having his
home searched for drugs
without a warrant.
Case Facts, cont.
During a urine test which was
positive, police search
defendant’s house,
defendant made some
incriminating statements
and police found a shot gun.
Appellate Court Finding
State needed probable cause to
search house.
Requirements of probable cause:
1. consent,
2. special needs, or
3. totality of the circumstances.
Middle Ground?
United States v. Gauthier, 2010 U.S.
Dist. LEXIS 107548 (D. Me. Aug. 30,
2010)
Refusing to reach the level of Scott,
above but holding to the Ullring
rule of individualized case-by-case
application.
So where are we?
No blanket search clause preadjudication
 Make individualized finding to
impose
 Unless in 9th Cir., need not require
probable cause for search while on
bail/bond

Random Drug Screens
Is the bail condition of
requiring defendant to
participate in random
drug screen tests lawful?
Case Facts
Defendant pled not guilty to
charge of possession of
marijuana. Bail condition
required she submit to
random drug screens
Case Facts, cont.
Defendant then filed
motion to terminate
pretrial urine drug
screenings. Trial court
denied motion.
Finding
Appellate court found trial court
needed to make an
individualized determination
that the specific accused was
likely to use drugs while on
bail.
Steiner v. State, 763 N.E.2d 1024 (2002)
How hard can that be?
“The Court finds that people who
possess drugs are more likely than
not to also use drugs.
 “The Court finds that the use of
drugs is an illegal activity
inconsistent with bail.
 “The Court orders testing.”

High $$ Bail as Incentive
Is it lawful for the court to set
a high monetary bail to
“push” defendant into nonmonetary bail option of drug
screenings?
Case Facts
Defendant charged with 5th degree
possessions of a controlled
substance.
1st appearance bail $5,000 cash, or
$50,000 bond or no cash bail with
testing conditions
Defense Argues
(1) bail and conditioned release may
be imposed only for the purpose of
assuring that a defendant will
make future court appearances;
and
(2) bail set to coerce a defendant to
accept conditioned release is
unconstitutionally excessive.

Appellate Court stated
The district court’s statements
on the record indicate the only
purpose for setting monetary
bail as it did was to encourage
Defendant to submit to drug
testing.
Held:

District court not authorized by
statute to “encourage” defendant
to accept testing condition in order
to get bail.
EVIDENTIARY ISSUES
Drug Recognition Evaluation
and Daubert
Defendant was charged with DWI-D
and speeding.
DRE testified as an expert on the
Drug Recognition Evaluation
protocol
Defense Argued

Testimony fell within Daubert
parameters.
Court Found
DRE protocol and conclusions
could be admitted
DRE could testify to probabilities
DRE conclusion could not be
admitted as an established
scientific FACT.
Latest Case
4-day Frye hearing
 in determining admissibility of DRE
testimony, the Court must first
determine whether the opinion is
both scientific and new or novel
(before determining general
acceptance as reliable)

MD v. Crampton (Cir.Ct, 3-19-13)


if it is neither new or novel, then "the
question of 'general acceptance' will not be
reached
"the DEC protocol and a DRE's conclusions
regarding impairment are not new or novel
scientific evidence because they are not
based upon new or novel scientific principles
or techniques. Consequently, the Frye
''general acceptance' analysis is
inapplicable.
ADMISSIBILITY OF EXPERT &
NON-EXPERT TESTIMONY
General Rule on Admissibility of
Opinion – FRE 701

Lay Opinion
• Rationally based on perception of
witness
• Helpful to a clear understanding of
 Testimony of witness, or
 Determination of a fact in issue
• Not based on scientific, technical or
specialized knowledge
General Rule on Admissibility of
Opinion – FRE 702

Expert Opinion
• If scientific, technical or other
specialized knowledge will help trier
of fact to
 Understand the evidence, or
 Determination of a fact in issue
General Rule on Admissibility of
Opinion – FRE 702

Expert Opinion, cont.
• Witness qualified as an expert by
 Knowledge,
 Skill
 Experience
 Training, or
 Education
General Rule on Admissibility of
Opinion – FRE 702

Expert Opinion, cont.
• May testify, opinion or otherwise, if
 Testimony is based on sufficient
facts or data
 Testimony is the product of reliable
principles and methods, and
 Witness has applied the principles
and methods reliably to the facts of
the case
General Rule on Admissibility of
Opinion – FRE 704

Lay and Expert Opinion – Ultimate
Issue
• A witness can render an opinion on
the ultimate issue to be decided by
the trier of fact
 Exception – presence or lack of
presence of mental state of a
defendant in a criminal case.
Considerations
Very wide discretion
 Making sure jury has all relevant
evidence
 Exercise your good judgment!
That’s why you’ve got the job

QUESTION:
Is opinion about “being high” on
drugs the same as “being drunk”?
 Does drug intoxication require
expert opinion?
 Why or why not?

Lay opinion
Lay testimony of drug intoxication
is questionable, thus requiring
expert testimony of effects and
interactions.
 Commonwealth v. Griffith, 2009 PA
Super 120 (Pa. Super. Ct. 2009)

Drug Recognition Evaluation
and Daubert
Defendant was charged with
operating a motor vehicle under
the influence of drugs and
speeding.
Court Found
 DRE
protocol and conclusions
could be admitted
 DRE could testify to
probabilities
 DRE conclusion could not be
admitted as an established
FACT.
Testimony as to the amount
or quantity of drug is not
required, only proof that the
defendant was ‘under the
influence’ sufficiently
causing impairment.
Commonwealth v. Williamson
Combo Cases
Guilt may be found with only
showing alcohol
impairment; proof of other
substances not necessary.
Commonwealth v. Bishop, 78 Mass.
App. Ct. 70 (Mass. App. Ct. 2010)
FIELD SOBRIETY TESTS (FST)
STANDARDIZED FIELD
SOBRIETY TESTS
• Validated tests for alcohol:
 Horizontal Gaze Nystagmus
 Walk and Turn
 One Leg Stand
NON-VALIDATED FIELD
SOBRIETY TEST
 Romberg
(modified position of
attention)
 Finger to Nose
 Finger Count
 Alphabet
 Lack of Convergence
 Vertical Gaze Nystagmus (VGN)
SFSTs
Valid for drugs?
 Any drugs or just some?
 Who says?

Horizontal Gaze Nystagmus

Is a scientific test subject to Frye

(Illinois v. McKown, Sup.Ct. 2010)
Some courts say it satisfies
Dauber
 Acceptable scientific testimony
 Who may testify? Arresting officer
or medical personnel? HGN
present with what drugs?

HGN Admissibility
Not a scientific test. 8 admit as FST
 Scientific test but N/A in 4 states
 Scientific test; meets Frye (17)
 Scientific test but inadequate
evidence to admit in a specific
case (12)

HGN as scientific test
HGN testing satisfies Frye (WA,
MS, NH say no)
 One facet of SFSTs to be
considered by trier of fact re:
impairment

To admit HGN
Proper foundation:
i. witness has training
ii. tested in accordance with training
iii. specific test administered in
accordance with training

HGN, cont.
Cannot use to relate to BAC or
level of impairment
 May be used for officer’s opinion
that subject was impaired

Witte, G. Michael, “A Review of People v. McKown: Horizontal
gaze Nystagmus (HGN) Testing Satisfies Frye Test in Illinois,”
Highway to Justice, ABA/NHTSA (Winter 2011)
MATRIX CHART
DEP
STIM
HALL
D/A
NARC
INHAL
CANN
ABIS
HGN
PRES
NONE
NONE
PRES
NONE
PRES
NONE
VGN
PRES
NONE
NONE
PRES
NONE
PRES
NONE
PUPIL
NORM
(1)
DILATED
DILATED
NORM
CONST
NORM
(2)
DILATED
(3)
LOC
PRES
NONE
NONE
PRES
NONE
PRES
PRES
1.
2.
3.
Soma & Quaaludes cause dilation
Normal but may be dilated
May be normal with low THC levels
Question:

May a DRE testify as to the
absence of HGN to indicate the
type of drug that was allegedly
impairing the driver?
SENTENCING ISSUES
PROMISING PRACTICES
~2,500 Drug Tx Courts in U.S.
Adult
Federal
District
Campus
Juvenile
Drug
Tx
Courts
Tribal
Family
~526
166 + 360 hybrid
DWI
Reentry
Traditional responses to DWI
less effective



Imprisonment -- weak evidence
mandatory jail time works
Severity of punishment is not related to
reduced crashes or recidivism
License sanctions not very effective as
75% continue to drive
Traditional responses, cont.
Forfeiture, impoundment,
registration and license plate
sanctions are minimally effective
(e.g., CA 56% of DWS were not R/O
of car they were driving)
 IID works great for alcohol but only
while installed and not
circumvented

What does work with DWI
offenders?



Establish reduced recidivism as a
specific sentencing goal
Combine effective substance abuse
treatment with mental health services
Have a flexible sentencing scheme,
e.g., staggered sentencing
Rely on criminogenic risk factors
to sentence, not just BAC or prior
criminal history
 Use a risk/needs assessment
 Integrate services with incentives
and sanctions
 Educate systems on evidencebased practice

How do DWI Courts work?

DWI Courts operate in a postconviction model using intensive
supervision and treatment to change
the person's behavior.
DWI Courts

DWI Courts use all the criminal
justice stakeholders (judge,
prosecutor, defense attorney, law
enforcement, probation, and
treatment) in a cooperative
approach to change the offender’s
behavior
Ongoing Judicial Supervision




Participants reports back (usually
weekly, bi-weekly or monthly)
Minimum is every 2 weeks for best
results
Team members update Court
regularly
Sentence adapted as participant
progresses or regresses
DWI Court Target Population
Convicted DWI-multiple
offenders
 May include 1st time offenders
with high BACs (.15 or >)
 Alcohol and/or Drug Use
Identified

Reduced recidivism
DWI re-arrest rates
15.5%
Bernalillo
28.5% after 2 years
13%
33% after 5 years
DWI Court
BAU
Lansing MI
4%
25% after 2 years
Kootenai ID
0%
20%
Guerin & Pitts, 2002
40%
60%
80%
100%
Staggered Sentencing
Similar to a DWI Court without the
formal structure
 Judge keeps case on her docket
 Sentence imposed then parts are
suspended

$64,000 Question
Do we want to stop the drinking?
 Do we want to stop the drug use?
 Do we want to stop the driving?
 Do we only want to stop the driving
while impaired?


Different strategies apply to each.
Resource
Resource
“Drugged, Drunk and Distracted
Driving Toolkit”
 For parents and teens


www.TheAntiDrug.com

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