DRUGGED DRIVING Hon. Peggy Fulton Hora Judge of the Superior Court (Ret.)

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

Wisconson v. Torbeck (2012 )Wisc. App. LEXIS 617

Learning ObjectivesAs 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 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

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)

•Every state reports BAC in fatal crashes•Only 20 states test for and report illicit drugs

Tip of the Iceberg

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. Encourage states to adopt per se drug driving laws,

2. Collect further data on drugged driving.

“Drugged Driving,” ONDCP

Drug Control Strategy, cont.

3. Enhance prevention of drugged driving by educating communities and professionals,

4. Provide increased training to law enforcement on identifying drugged drivers, and

5. 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. Alertness and arousal

2. Attention and processing speed

3. Reaction time and psychomotor functions

4. Sensory-perceptual functions

5. 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


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


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


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


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

Wisconson v. Torbeck (2012 )Wisc. App. LEXIS 617

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

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 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 11-0615 (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

1. AK*

2. AZ

3. DE

4. GA

5. IL

6. IN

7. IA

8. MI

9. MN

10. MS

11. NV

12. NC**

13. OH

14. PA

15. RI

16. SC*

17. UT

18. VA

19. WV

*Included in DWI statute** Schedule I controlled substances

Governors Highway Safety Association GHSA(May 2012)

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

provedIllinois 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. Abstinence

2. Testing for AOD

3. No driving without valid license, insurance, registration

4. Assessment for substance abuse or dependence

5. 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

violates 4th Amendment rights

State argues

4th 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 pre-

adjudication 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 non-monetary 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, orDetermination of a fact in issue

• Not based on scientific, technical or specialized knowledge


Expert Opinion• If scientific, technical or other

specialized knowledge will help trier of fact toUnderstand the evidence, orDetermination of a fact in issue


Expert Opinion, cont.• Witness qualified as an expert by

Knowledge,SkillExperienceTraining, orEducation


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


Lay and Expert Opinion – Ultimate Issue• A witness can render an opinion on

the ultimate issue to be decided by the trier of factException – 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 NystagmusWalk and TurnOne Leg Stand

NON-VALIDATED FIELD SOBRIETY TEST

Romberg (modified position of attention)

Finger to NoseFinger CountAlphabetLack of ConvergenceVertical 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)

DEP STIM HALL D/A NARC INHAL CANNABIS

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. Soma & Quaaludes cause dilation

2. Normal but may be dilated

3. May be normal with low THC levels

MATRIX CHART

Question: May a DRE testify as to the

absence of HGN to indicate the type of drug that was allegedly impairing the driver?

SENTENCING ISSUESPROMISING PRACTICES

~2,500 Drug Tx Courts in U.S.

Drug Tx

Courts

Adult

Juvenile

Family

DWIReentry

Tribal

Campus

FederalDistrict

~526166 + 360 hybrid

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 evidence-

based practice

How do DWI Courts work? DWI Courts operate in a post-

conviction 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

Kootenai ID

Lansing MI

Bernalillo

0% 10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

DWI CourtBAU

15.5% 28.5% after 2 years

13% 33% after 5 years

4% 25% after 2 years

DWI re-arrest rates

Guerin & Pitts, 2002

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

http://www.theantidrug.com/

Documents

DRUGGED DRIVING Hon. Peggy Fulton Hora Judge of the Superior Court (Ret.)