This document discusses drugged driving and the unique legal issues it presents. It notes that 1 in 8 weekend, nighttime drivers test positive for illicit drugs and 33% of fatally injured drivers tested positive for drugs in 2009. Marijuana, cocaine, and prescription drugs are commonly found. Studies show drugs like marijuana negatively impact driving ability. Per se drugged driving laws are complicated by the lack of impairment thresholds like the .08 BAC standard for alcohol. Prosecutors may need drug recognition experts as witnesses. Initial stops, admissibility of tests, the right to confrontation, and jury attitudes also present unique issues in drugged driving cases compared to DWI.

1. 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

2. 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

3. 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

4. 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)

5.  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

6. 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

7. 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)

8. Tip of the iceberg
•Every state reports BA
in fatal crashes
•Only 20 states test for
and report illicit drugs
however
•Investigation may stop
PAS shows .08 or >

9. How drugs affect driving

10. Behavioral domains relevant to
driving
1. Alertness and arousal
2. Attention and processing speed
3. Reaction time and psychomotor
functions
4. Sensory-perceptual functions
5. Executive functions
NHTSA (2009)

11. How does MJ affect driving?

12. 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

13. 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)

14. 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

15. 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)

17. 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)

18. 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

19. 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

20. 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

21. What about “medical” MJ?

22. “Medical” marijuana
 Denial of equal protection to prosecute
marijuana users for DWI since ”medical”
marijuana users couldn’t be prosecuted
under per se
Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999)
 Not so with cocaine since there is no
legal use except topically
Keenum vs State 248 Ga. 474; 546 SE2d 288 (2001)

23. 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

24. Rx and O-T-C Drugs
 Driving
impairment can
also be caused by
prescription and
over-the-counter
drugs

25. True or False?
 A person impaired by Xanax (Alprazolam) will
appear similar to one intoxicated by alcohol?
TRUE

26. “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)

27. 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)

28. “Do Not Operate
Heavy Equipment”

29. 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

30. 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)

32. “Drug” determines attitudes
 DISCUSS:
 Is there a difference between driving impaired by
prescribed medication vs. methamphetamine?

33. Per se and non-per se laws

34. 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.

35. 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

36.  "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

37. Per se laws
 Began with .08 standard for alcohol
 BUT lack of experiments and evidence
on “drugged driving”

38. 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.”

39. 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.)

40. 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

41. Prosecutor may need
Expert witness in drugs such as:
 Advanced Roadside Impaired Driving
Enforcement (ARIDE)
 Drug Recognition Expert (DRE)

42. Unique legal issues

43. 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)

44. Initial Stop
 What are the signs of impairment?
 Use of Horizontal Gaze Nystagmas (HGN)?
 Physical evidence, e.g., open container vs. joint
in ashtray

45. Law and Motion/Pre-Trial/
Voir Dire
 Suppression issues
 Motions in Limine
 Voir dire issues (reluctance with marijuana;
prejudice about other illicit drugs?)

46. Admissibility
 Daubert /Frye scientific validity of test or device
utilized.(HGN,U/A or other testing device)
 SFSTs in drug cases

47. 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.

48. 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.

49. 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.”

50. 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)

51. 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?

52. $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.

53. Resources

54.  “Drugged, Drunk and Distracted Driving Toolkit”
 For parents and teens
 www.TheAntiDrug.com