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

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 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
Div. 1 Scope of the problem 7/23/12 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 Hon. Peggy Hora

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.

Of the 16. 3% of drivers positive for drugs, 11
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
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 Encourage states to adopt per se drug driving laws, Collect further data on drugged driving. “Drugged Driving,” ONDCP

Drug Control Strategy, cont.
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

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
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 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)

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)

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)

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)

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)

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 /journal.pone

What about “medical” MJ?

“Medical” Marijuana Sale

“Spring Compassion Special”

My 420 Tours

“Colorado Locals Start Marijuana Tourism Business”
Div. 1 Scope of the problem 7/23/12 “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 Hon. Peggy Hora

Div. 1 Scope of the problem
7/23/12 Aging Boomers Hon. Peggy Hora

“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 49

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 year olds Pratt, Laura A., et al., “Antidepressant Use in Persons Aged 12 and Over in the United States, ,” 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 (Aug. 2012)

“Section (D) provides a narrow safe harbor for a defendant charged with violating (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” (A)(3). A.R.S. § (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 MS NV AK* NC** AZ OH DE PA GA RI IL SC* IN UT IA
WV AK* AZ DE GA IL IN IA MI MN *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 ”

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 , Ill. Supreme Court ( , 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
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? Defendant arrested on drug charges, agreed to random searches as a condition of bail. During a random search, the Defendant was found to be carrying packets of marijuana and defendant was convicted. The court affirmed the conviction, ruling that a warrantless search as a condition of a bail bond was lawful under Me. Rev. Stat. Ann. tit. 15, § 1026(3)(A)(18) and U.S. Const. amend. IV because the judicial officer had reasonably determined the condition to be necessary.

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. On Dec. 5, Ullring's home was searched, pursuant to a search warrant, by six law enforcement officers. Ullring was not home when the search was conducted. The officers found approximately thirteen ounces of marijuana, a triple beam scale and plastic sandwich bags. Ullring was arrested. He was released after posting $400 bail and signing a bail bond. A condition of his bail required him to submit to random searches of his person, residence, and vehicle. Later, (Jan. 14) law enforcement searched home again. There was no warrant and no evidence of any wrongdoing on the part of Ullring. The agent based his search on the authority created by Ullring's bail condition. Prior to trial, Ullring filed a motion to suppress the evidence gathered from the second search of his home, and a motion to sever the charges arising from the January 14 search from the charge stemming from the December 5 search. The court denied both motions. The jury returned a verdict of guilty on the offense of trafficking occurring on December 5, and not guilty on both of the January 14 offenses.

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.” Ullring's motion to suppress the evidence obtained from the January 14 search of his home and his person was submitted to the court on a written stipulation of facts. The parties agree that Ullring was held in custody after his arrest on December 10, 1997 until he signed the bail bond. The bail bond is on a printed form. Immediately after the printed words "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." Both Ullring and the bail commissioner signed the bail bond. The parties stipulate that the only basis for the search of Ullring and his residence on January 14 was the bail condition and that the MDEA agent had no evidence of any wrongdoing by Ullring.

Condition was illegal because not authorized by statute, and
Defense argues Condition was illegal because not authorized by statute, and unconstitutional because it violates 4th Amendment rights 4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized. When the State relies upon consent as the justification for the lawfulness of a warrantless search, the State has the burden of proving that the consent was voluntary. A voluntary consent is one that is not the result of duress or coercion, express or implied, and that is, in fact, voluntarily given. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 248 (1973). Ullring suggests that a defendant who is in custody and who is required to sign a bail bond with conditions before being released is signing the bond under coercion.

State argues 4th amendment rights may be voluntarily waived. Mere custody does not amount to coerced consent. The mere fact that Ullring was in custody at the time the consent was given does not demonstrate that the consent was coerced. See United States v. Watson, 423 U.S. 411, (1976) (holding that warrantless search of defendant's vehicle was legal because defendant's consent was voluntary even through he was in police custody at the time of giving consent). As the California Supreme Court said: "Although it may be true that a defendant who is faced with the choice of agreeing to the challenged conditions or remaining incarcerated has a considerable incentive to agree to the conditions, that circumstance, alone, does not render the consent coerced or involuntary." In re York, 892 P.2d 804, 814 (Cal. 1995).

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 9th Circuit Court of Appeals, Kozinski, Circuit Judge, (2006) in U.S. v. Scott, 450 F.3d 863, C.A.9 (Nev.),2006 held that: Warrantless searches, including drug testing, imposed as a condition of pretrial release, required showing of probable cause, despite defendant's pre-release consent, Warrantless searches, including random drug testing, imposed as condition of pretrial release in state prosecution, required showing of probable cause, even though defendant had signed pre-release consent form; protecting community from further crime committed by defendant did not amount to “special need,” since crime prevention was quintessential general law enforcement purpose, there was no showing that problem of releasees failing to appear in court as result of drug use justified intruding on privacy rights of every releasee, nor that defendant in particular was likely to engage in future drug use that would decrease likelihood of his appearance, and governing state code did not recognize connection between drug use and nonappearance at trial. U.S.C.A. Const.Amend. 4. (2) searches could not be justified under totality of the circumstances. Warrantless searches, including random drug testing, imposed as condition of pretrial release in state prosecution, could not be justified under totality of the circumstances; releasee was not in same position as probationer, i.e. he enjoyed presumption of innocence, and there had been no showing of heightened risk that releasee would use illicit drugs during pretrial release. U.S.C.A. Const.Amend. 4.

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. Defendant was arrested on state charges of drug possession and released on his own recognizance. Defendant was required to sign a form in which he agreed to comply with certain conditions. Among the conditions was consent to "random" drug testing without a warrant, and to having his home searched for drugs without a warrant. Based on an informant's tip, state officers went to defendant's home and administered a urine test. When defendant tested positive, officers arrested him and searched his house. The search turned up the shotgun.

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. The appellate court found that the state's decision to test defendant for drugs without probable cause did not pass constitutional muster under any of the three approaches: consent, special needs, or totality of the circumstances. Since the government conceded there was no probable cause to test defendant for drugs, his drug test violated the Fourth Amendment. Probable cause to search defendant's house did not exist until the drug test came back positive. The house search, which led to both the shotgun and defendant's statements was derivative of the initial unconstitutional drug test and as such was invalid and its fruits had to be suppressed.

Middle Ground? United States v. Gauthier, 2010 U.S. Dist. LEXIS (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 Defendant was charged with possession of marijuana. The Lawrence Superior Court (Indiana) found probable cause for defendant's arrest and set bail. At defendant's initial hearing she pled not guilty to the charge, and the trial court ordered her to submit to random drug screens. Thereafter, defendant filed a motion to terminate pretrial urine drug screens, which the trial court denied.

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) The Appellate Court determined that: A trial court needed to make an individualized determination that an accused was likely to use drugs while on bail before it was reasonable to place restrictions on the individual based on that contingency. The record did not reveal that the trial court made any attempt to determine whether the particular facts and circumstances of the case justified the imposition of random drug screens as a condition of bail and revealed no history of substance abuse by defendant nor any other prior convictions or arrests. The case was remanded with instruction to vacate such condition.

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? Defendant presented with the choice of submitting to pretrial drug testing or paying what was later deemed by the appellate court to be “excessive” bail. Courts must do individual analysis of cases AND may not set cash bail requirements so high as to attempt to push defendants into pre-trial testing.

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 Appellant Michael James Martin was charged with fifth-degree possession of a controlled substance. At his first appearance, the district court set conditions of pretrial release requiring that Martin submit to a baseline urinalysis drug test in addition to random drug testing. In the alternative, the court set bail, without nonmonetary conditions, of $5,000 cash or a $50,000 bond. When asked why bail in that amount was necessary, the court indicated that the amount had nothing to do with assuring that Martin made future court appearances.

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. Martin's defense counsel objected, arguing that Martin could “bail out” of the conditions. The district court disagreed, indicating that bail would be set at $1,000,000. When asked about the amount of bail the court responded, “I want to set conditions.” Defense counsel then requested bail without conditions, at which point the following discussion took place: THE COURT: Okay, 5,000 cash, 50,000 bond, make all future Court appearances. [DEFENSE COUNSEL]: Could the Court put on the record why it feel[s] 5,000 cash is necessary. THE COURT: Because I would normally require him to submit to a base line UA so we know if he's not using. [DEFENSE COUNSEL]: So this has got nothing to do with him appearing in Court? THE COURT: No, I have a different read on the constitution than Jack Nordby does much as I respect him and his view on it. [DEFENSE COUNSEL]: So I understand it, it has nothing to do with him appearing in Court. It's just that you want to do the base line. THE COURT: That is correct. THE CLERK: He has to do the base line today? THE COURT: No, just post 5,000 cash or 50,000 bond. [DEFENSE COUNSEL]: Or he can still have his conditional release, is that correct? THE COURT: Yes, or he can provide a base line UA and he is released on his own recognizance on the condition that he be subject to random testing in the event anybody believes he's using and makes all future court appearances.

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. Here, the district court's statements on the record can be fairly read to indicate that the only purpose for setting monetary bail as it did was to encourage Martin to submit to drug testing. No other reason was given. Rule 6.02, however, does not authorize the setting of monetary bail for such a purpose. Because the record indicates that the district court set bail as it did solely to encourage Martin to accept conditioned release, we conclude that the district court violated Rule 6.02's requirement that bail be set without other conditions. By doing so, the district court abused its discretion.

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 Defendant was charged with operating a motor vehicle under the influence of drugs and speeding. The state had called as its lead witness an officer who had had drug observance training and attempted to establish his credentials as an expert on the use of a Drug Recognition Evaluation (DRE) protocol.

Defense Argued Testimony fell within Daubert parameters.
Defendant objected on the basis that the proffered testimony fell within the parameters of Daubert v. Merrell Dow Pharmaceuticals, Inc. Based upon the exhibits submitted by the parties, the court found that the DRE program adequately met the requirements of Daubert for the purposes of admissibility of the testimony

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. Therefore, the court held that, upon the appropriate foundation being laid, the DRE protocol conducted by the officer, together with his conclusions drawn therefrom, could be admitted into evidence to the extent that the DRE could testify to the probabilities, based upon his or her observations and clinical findings, but could not testify, by way of scientific opinion, that the conclusion was an established fact by any reasonable scientific standard. DRE program started in 1979

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, )

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

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

Expert Opinion, cont. Witness qualified as an expert by Knowledge, Skill Experience Training, or Education

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 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) The reviewing court noted that whereas the intoxicating effect of alcohol was widely known and recognized by the average layperson, the same could not be said of prescription medications, either alone or in combination with other controlled substances. Thus, the reviewing court concluded that the factfinder, the judge in the instant action, must be afforded expert testimony concerning the effects and interactions of prescription medications where such medications are the alleged intoxicants.

Drug Recognition Evaluation and Daubert
Defendant was charged with operating a motor vehicle under the influence of drugs and speeding. Defendant was charged with operating a motor vehicle under the influence of drugs and speeding. The state had called as its lead witness an officer who had had drug observance training and attempted to establish his credentials as an expert on the use of a Drug Recognition Evaluation (DRE) protocol.

Court Found DRE protocol and conclusions could be admitted
DRE could testify to probabilities DRE conclusion could not be admitted as an established FACT. Therefore, the court held that, upon the appropriate foundation being laid, the DRE protocol conducted by the officer, together with his conclusions drawn therefrom, could be admitted into evidence to the extent that the DRE could testify to the probabilities, based upon his or her observations and clinical findings, but could not testify, by way of scientific opinion, that the conclusion was an established fact by any reasonable scientific standard.

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 Commonwealth v. Williamson, 2008 PA Super 276 (Pa. Super. Ct. 2008) Prosecution does not need to prove a quantity of a prescription in the Defendant’s system or show the amount of the controlled substance involved in the prosecution. Rather, the offense only requires proof that the defendant was under the influence to a degree that causes impairment. As such, a report from a urine sample showing the presence of the drug and not “how much” had been ingested is admissible.

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) When the defendant is charged with operating while under the influence of intoxicating liquor, it is immaterial whether the driver is under the influence of intoxicating liquor and other substances. In order to find guilt, the jury need only to find that the liquor contributed to the defendant's impairment

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: witness has training
tested in accordance with training 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 Soma & Quaaludes cause dilation Normal but may be dilated
DEP STIM HALL D/A NARC INHAL CANNABIS HGN PRES NONE VGN PUPIL NORM (1) DILATED NORM CONST (2) (3) LOC 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. ~526 166 + 360 hybrid Drug Tx Courts
Adult Juvenile Family DWI Reentry Tribal Campus District Federal ~526 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 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

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

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

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