FUNDED BY A GRANT FROM THE TEXAS COURT OF CRIMINAL APPEALS

TEXAS MUNICIPAL COURTS EDUCATION CENTER

2210 HANCOCK DRIVE, AUSTIN, TEXAS 78756

TELEPHONE 512.320.8274 1.800.252.3718

FAX 512.435.6118

TMCEC IS A PROJECT OF THE TEXAS MUNICIPAL COURTS ASSOCIATION

What’s in Your Vape? E-Cigarettes, Traffic, and Public Safety*

Presented by

Ned Minevitz, TxDOT Grant Administrator & Program Attorney, TMCEC

The emergence of “vaping” has not only resulted in a public health crisis, but it has created unique new challenges for municipal courts and law enforcement agencies in Texas. Vaping is not as simple as it may seem at first blush: there are various types of vaping devices and countless different substances that can be put in them. Furthermore, vaping has a pronounced effect on traffic safety on Texas roadways. This course will explore the challenges facing courts and law enforcement agencies, the vaping industry generally, Class C Misdemeanors related to vaping, and vaping’s surprising impact on traffic safety. By the end of this session, participants will be able to:

1. Identify the challenges vaping poses for Texas courts and law enforcement agencies; 2. List three substances that can be smoked using a vaping device; 3. Locate Texas statutes relevant to vaping; and 4. Describe vaping’s unique impact on traffic safety.

10/27/20

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WHAT’S IN YOUR VAPE?

E-CIGARETTES, TRAFFIC, AND

PUBLIC SAFETYNed Minevitz, Program Attorney and TxDOT Grant Administrator, TMCEC

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What do you see?

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Now what do

you see?

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A BRIEF OVERVIEW OF VAPING• Emerged around 2009 as smoking cessation tool

• July 2019 Gallup poll: 8% of Americans report having “vaped” in the past week

• 18-29 year olds vape the most – approximately 1 in 5

• While often viewed as a safe alternative to cigarettes, there is increasing data indicating negative health effects, e.g. “popcorn lung.” However, the long-term effects are not yet fully known.

• There are 10-15 carcinogens, including antifreeze and aluminum

• Reports of having been marketed to youths

• Dangerous secondary market for “e-juice”

• Specialty stores cropping up in East Texas!

Tyler, Texas

10/20/2020

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POPULARITY OF VAPING MARIJUANA

• From 2017-2019, the percentage of 19-22 year olds who vaped marijuana at least once in the past 30-days went from 5% to 14%

among college students, and 8% to 17% for those not in college.

• “This doubling to tripling of prevalence of vaping marijuana…over

just two years [is] among the largest increases in MTF history for any substance since the study began over 40 years ago.”

-John Schulenberg, principal investigator of the Monitoring the Future Panel Study.

Source: University of M ichigan M onitoring the Future Panel Study 2020

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TEXAS E-CIGARETTE LAWS

Health & Safety Code Sec. 161.252

• Someone under 21

• Possesses, Purchases, Consumes or Accepts a cigarette, e-cigarette, or tobacco

product; or uses a fake ID seeking to procure a cigarette, e-cigarette, or tobacco

product.

• Max fine: $100

• Exceptions: (1) Someone with valid U.S. Military ID card only need be 18; (2) if

possession is in the presence of an employer and is required to perform the defendant’s job duties

• Upon conviction, court shall inform defendant of ability to apply for expunction under

Sec. 161.255 once they turn 21 But what is an “e-cigarette” for the purposes of Sec 161.252?

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TEXAS E-CIGARETTE LAWSHealth & Safety Code Sec. 161.081 (Since 2015):

• (1-a) “E-cigarette” means an electronic cigarette or any other device that simulates smoking by using a mechanical heating element, battery, or electronic circuit to deliver nicotine or other substances to the individual inhaling from the device. The term does not include a prescription medical device unrelated to the cessation of smoking. The term includes:

(A) a device described by this subdivision regardless of whether the device is

manufactured, distributed, or sold as an e-cigarette, e-cigar, or e-pipe or under another product name or description; and

(B) a component, part, or accessory for the device, regardless of whether the component, part, or accessory is sold separately from the device.

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AWARENESS CLASSHealth & Safety Code Sec. 161.253

(a) On conviction under Section 161.252, the court shall suspend execution of sentence and shall require the defendant to attend an e-cigarette and tobacco awareness program approved by the

[Health and Human Services] commissioner. The court may require the parent or guardian of the defendant to attend the e-cigarette and tobacco awareness program with the defendant.

(c) If the defendant resides in a rural area of this state or another area of this state in which access

to an e-cigarette and tobacco awareness program is not readily available, the court shall require the defendant to perform eight to 12 hours of e-cigarette- and tobacco-related community service instead of attending the e-cigarette and tobacco awareness program.

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https://www.dshs.state.tx.us/tobacco/TYTAP/

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TEXAS E-CIGARETTE LAWSHealth and Safety Code Sec. 161.253 (cont.)

• (e) Within 90 days of conviction, the defendant shall present to the court, in the manner required by the court, evidence of satisfactory completion of the e-cigarette and tobacco awareness program or the e-cigarette- and tobacco-related community service.

• (f) When the court gets it, they shall:

• (1) if the defendant has a prior Sec. 161.252 conviction, execute the sentence, and at the discretion of the court, reduce the fine imposed to not less than half the fine previously imposed by the court; or

• (2) if no prior, dismiss the case!

• (g) If the court discharges the defendant under Subsection (f)(2), the defendant is released from all penalties and disabilities resulting from the offense except that the defendant is considered to have been convicted of the offense if the defendant is subsequently convicted under Sec. 161.252.

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TEXAS E-CIGARETTE LAWS

Health & Safety Code Sec. 161.254 *REPEALED IN 2019*

Provided that if a defendant did not complete the tobacco awareness

course the court would report to DPS and defendant’s license would be suspended.

Ch. 37, Subchapter E-1, Education Code (School Offenses)

Good to know about for tobacco/e-cig offenses

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VAPING’S IMPACT ON TRANSPORTATION

• Law enforcement difficulty identifying what’s being

vaped for purposes of impaired driving

• Typically odorless

• Vapors (vegetable glycerin) can “cloud” driver’s

vision – violation of Trans. Code Sec. 547.61

(windshield obstruction)?

• Cognitive distraction of manipulating an electronic

device

• Can result in dizziness

• Might explode in the driver’s face

• Any others?

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10/27/20

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VAPING AND COVID-19• In August 2020, Stanford researchers found that

vapers are 5-7 times more likely to contract COVID-19

• Young people who had used both cigarettes and e-

cigarettes in the previous 30 days were almost five times as likely to experience COVID-19 symptoms, such as coughing, fever, tiredness and difficulty breathing as those who never smoked or vaped due to lung damage.

Source: Stanford Journal of Adolescent Health

• Potential issues with alcohol detection in DWI

cases?

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AVAILABLE RESOURCES

http://www.tmcec.com/files/3115/6503/3851/MTSI_Impaired_Driving_DVD_List.pdf

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QUESTIONS?

Ned Minevitz

Program Attorney & TxDOT Grant Administrator, TMCEC

(512) 320-8274

ned@tmcec.com

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