DRUGGED DRIVING Hon. Peggy Fulton Hora Judge of the Superior Court (Ret.) “Driving Them to Sobriety”NADCP 18th Annual Training Conference May 30, 2012 Nashville TN
Learning Objectives As a result of this presentation, judges will be able to:1. Articulate the effects drugs have on driving;2. Anticipate problems in jury trials; and,3. Rule on unique legal issues in drugged driving cases
In a Nutshell 1:8 weekend, nighttime drivers test positive for illicit drugs 33% of all drivers with known drug-test 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)NHTSA/FARS
Drugged driving on the rise 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)
Students were about to board a bus to Disneyland The driver failed SFTs He had cocaine,the painkiller Endocet and the sleeping pill Zolpidem in his possession“Drug charges for bus driver in Disneyland trip,” KTVN 2 News, May 31, 2012
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 Almost half (42%) of fatally injured drivers who tested positive for marijuana were under the age of 25.“Drugged driving,” NIDA Infofacts, (2010)NHTSA
What drugs?Most common were marijuana and stimulants (cocaine and amphetamines)¼ were positive for marijuana~¼ stimulantsMay 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 BAin fatal crashes•Only 20 states test forand report illicit drugshowever•Investigation may stopPAS shows .08 or >
Behavioral domains relevant to driving1. Alertness and arousal2. Attention and processing speed3. Reaction time and psychomotor functions4. Sensory-perceptual functions5. Executive functionsNHTSA (2009)
Marijuana studiesdelta-9-tetrahydrocannabinol (THC ) affects areas of the brain that control the body’s movements, balance, coordination, memory, and judgment, as well as sensations
Marijuana studies, cont.A meta-analysis of approximately 60 experimental studies—including laboratory, driving simulator, and on- road 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
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)
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
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 crashBritish Medical Journal 2/12
“Medical” marijuana Denial of equal protection to prosecute marijuana users for DWI since ”medical” marijuana users couldn’t be prosecuted under per seLove v. State, 271 Ga. 398, 517 S.E.2d 53 (1999) Not so with cocaine since there is no legal use except topicallyKeenum vs State 248 Ga. 474; 546 SE2d 288 (2001)
Discuss: In what way, if any, will “medical” marijuana laws affect DWI trials Even if “medical marijuana” is legal in a particular state, what about its prohibition under Federal law How, if in any way, is impairment by “medical” marijuana different from impairment by alcohol
Rx and O-T-C Drugs Driving impairment can also be caused by prescription and over-the-counter drugs
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)
AntidepressantsAbilify, 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 oldsPratt, 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)
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)
“Drug” determines attitudes DISCUSS: Is there a difference between driving impaired by prescribed medication vs. methamphetamine?
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.
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
"Ill 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.”
Strict liability for drugs Even a trace amount of methamphetamine is enough to convict Strict liability statute Level of impairment need not be provedIllinois v. Martin, No. 109102, Ill. Supreme Court (4-21-11, Rehearing den.)
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 needExpert witness in drugs such as: Advanced Roadside Impaired Driving Enforcement (ARIDE) Drug Recognition Expert (DRE)
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)
What’s different? DWI alcohol and DWI drugs Separate tracks in DWI Court? Different conditions of probation? Different treatment tracks? Attitude differences between alcohol, illicit drugs and OTC or prescription medication?
$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.