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

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Presentation on theme: "DRUGGED DRIVING Hon. Peggy Fulton Hora Judge of the Superior Court (Ret.)"— Presentation transcript:

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

3 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) doesnt fit statute Wisconson v. Torbeck (2012 )Wisc. App. LEXIS 617

4 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

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6 SCOPE OF THE PROBLEM

7 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

8 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

9 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

10 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)

11 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),

12 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)

13 True or False? Marijuana is the most common illicit drug in DD cases. TRUE

14 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

15 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

16 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)

17 Every state reports BAC in fatal crashes Only 20 states test for and report illicit drugs Tip of the Iceberg

18 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

19 2010 Natl 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

20 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

21 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

22 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

23 HOW DRUGS AFFECT DRIVING

24 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)

25 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)

26 How does MJ affect driving?

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28 Marijuana studies delta-9-tetrahydrocannabinol (THC ) affects areas of the brain that control the bodys movements, balance, coordination, memory, and judgment, as well as sensations Drugged driving, NIDA Infofacts, (2010)

29 Marijuana studies, cont. A meta-analysis of approximately 60 experimental studiesincluding laboratory, driving simulator, and on- road experimentsfound that behavioral and cognitive skills related to driving performance were impaired with increasing THC blood levels Drugged driving, NIDA Infofacts, (2010)

30 Marijuana studies, cont. Evidence from both real and simulated driving studies indicates that marijuana can negatively affect a drivers attentiveness, perception of time and speed, and ability to draw on information obtained from past experiences Drugged driving, NIDA Infofacts, (2010)

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32 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)

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34 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)

35 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)

36 Marijuana studies, cont. Eight of the nine studies found drivers who use marijuana are significantly more likely than people who dont 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

37 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

38 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

39 What about medical MJ?

40 Medical Marijuana Sale

41 Spring Compassion Special

42 My 420 Tours

43 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

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45 Aging Boomers

46 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) doesnt fit statute Wisconson v. Torbeck (2012 )Wisc. App. LEXIS 617

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

48 Use of Rx drugs Almost 70 percent of Americans take at least one prescription medication Join Together, June 20, 2013

49 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

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

52 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 Mothers New Little Helper, The New York Times (Nov. 6, 2011)

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54 FDA Warning Jan 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

55 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)

56 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)

57 Do Not Operate Heavy Equipment

58 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

59 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)

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61 Affirmative Defense Arizona vs. Fannin 1 CA-CV (Aug. 2012)

62 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.

63 Drug determines attitudes DISCUSS: Is there a difference between driving impaired by prescribed medication vs. methamphetamine?

64 PER SE AND NON-PER SE LAWS

65 Theres 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.

66 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)

67 Its complicated The therapeutic and toxic concentration of drugs may overlap and are a function of: How long individual is on drugs Tolerance Metabolic status

68 Gold Standard Impairment is best proven by observation of aberrant driving pattern, failed SFSTs, DRE assessment, and toxicological analysis supporting conclusions of impairment.

69 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 wont detect levels, only whether the person has smoked recently or not

70 "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

71 Per se laws Began with.08 standard for alcohol BUT lack of experiments and evidence on drugged driving

72 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

73 Per se states Arizona, Delaware, Georgia, Indiana, Illinois, Iowa, Michigan, Minnesota, Nevada, North Carolina, Ohio, Pennsylvania, Rhode Island, South Dakota, Utah, Virginia, and Wisconsin

74 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.)

75 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

76 Medical marijuana Denial of equal protection to prosecute marijuana users since medical marijuana users couldnt 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)

77 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

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

79 DISCUSS: Should we legislate zero tolerance for all substances including illicit, prescribed and over-the-counter medications that can impair driving?

80 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

81 Discuss: What about medical marijuana? Is that any different from alcohol? What about Federal law?

82 UNIQUE LEGAL ISSUES

83 Whats 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)

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

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

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

87 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.

88 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.

89 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.

90 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)

91 BAIL CONDITIONS

92 Bail Issues in DD Purpose: To assure the court that the defendant will make future court appearances More modernly, primary purpose is public safety

93 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.

94 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

95 Bail conditions, cont. 6. Electronic monitoring 7. Curfew 8. Others?

96 Warrantless Search Is the bail condition of a random, warrantless search of person, personal effects, premises, and vehicle, lawful?

97 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.

98 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.

99 Defense argues Condition was illegal because not authorized by statute, and unconstitutional because it violates 4 th Amendment rights

100 State argues 4 th amendment rights may be voluntarily waived. Mere custody does not amount to coerced consent.

101 Result Is the bail condition of a random, warrantless search of person, premises, and vehicle, lawful? MAYBE

102 May have search clause during bail May consent to search as a condition of bail State v. Ullring 741 A2d 1065 (Maine) (1999)

103 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

104 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

105 Probable Cause Required? Is random drug testing of defendant on bail unconstitutional absent probable cause?

106 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.

107 Case Facts, cont. During a urine test which was positive, police search defendants house, defendant made some incriminating statements and police found a shot gun.

108 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.

109 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.

110 So where are we? No blanket search clause pre- adjudication Make individualized finding to impose Unless in 9 th Cir., need not require probable cause for search while on bail/bond

111 Random Drug Screens Is the bail condition of requiring defendant to participate in random drug screen tests lawful?

112 Case Facts Defendant pled not guilty to charge of possession of marijuana. Bail condition required she submit to random drug screens

113 Case Facts, cont. Defendant then filed motion to terminate pretrial urine drug screenings. Trial court denied motion.

114 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)

115 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.

116 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?

117 Case Facts Defendant charged with 5 th degree possessions of a controlled substance. 1 st appearance bail $5,000 cash, or $50,000 bond or no cash bail with testing conditions

118 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.

119 Appellate Court stated The district courts statements on the record indicate the only purpose for setting monetary bail as it did was to encourage Defendant to submit to drug testing.

120 Held: District court not authorized by statute to encourage defendant to accept testing condition in order to get bail.

121 EVIDENTIARY ISSUES

122 Drug Recognition Evaluation and Daubert Defendant was charged with DWI-D and speeding. DRE testified as an expert on the Drug Recognition Evaluation protocol

123 Defense Argued Testimony fell within Daubert parameters.

124 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.

125 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, )

126 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.

127 ADMISSIBILITY OF EXPERT & NON-EXPERT TESTIMONY

128 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

129 General Rule on Admissibility of Opinion – FRE 702 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

130 General Rule on Admissibility of Opinion – FRE 702 Expert Opinion, cont. Witness qualified as an expert by Knowledge, Skill Experience Training, or Education

131 General Rule on Admissibility of Opinion – FRE 702 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

132 General Rule on Admissibility of Opinion – FRE 704 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.

133 Considerations Very wide discretion Making sure jury has all relevant evidence Exercise your good judgment! Thats why youve got the job

134 QUESTION: Is opinion about being high on drugs the same as being drunk? Does drug intoxication require expert opinion? Why or why not?

135 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)

136 Drug Recognition Evaluation and Daubert Defendant was charged with operating a motor vehicle under the influence of drugs and speeding.

137 Court Found DRE protocol and conclusions could be admitted DRE could testify to probabilities DRE conclusion could not be admitted as an established FACT.

138 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

139 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)

140 FIELD SOBRIETY TESTS (FST)

141 STANDARDIZED FIELD SOBRIETY TESTS Validated tests for alcohol: Horizontal Gaze Nystagmus Walk and Turn One Leg Stand

142 NON-VALIDATED FIELD SOBRIETY TEST Romberg (modified position of attention) Finger to Nose Finger Count Alphabet Lack of Convergence Vertical Gaze Nystagmus (VGN)

143 SFSTs Valid for drugs? Any drugs or just some? Who says?

144 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?

145 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)

146 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

147 To admit HGN Proper foundation: i. witness has training ii. tested in accordance with training iii. specific test administered in accordance with training

148 HGN, cont. Cannot use to relate to BAC or level of impairment May be used for officers 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)

149 DEPSTIMHALLD/ANARCINHALCANN ABIS HGNPRESNONE PRESNONEPRESNONE VGNPRESNONE PRESNONEPRESNONE PUPILNORM (1) DILATED NORM CONST NORM (2) DILATED (3) LOCPRESNONE PRESNONEPRES 1. Soma & Quaaludes cause dilation 2. Normal but may be dilated 3. May be normal with low THC levels MATRIX CHART

150 Question: May a DRE testify as to the absence of HGN to indicate the type of drug that was allegedly impairing the driver?

151 SENTENCING ISSUES PROMISING PRACTICES

152 ~2,500 Drug Tx Courts in U.S. Drug Tx Courts AdultJuvenileFamilyDWIReentryTribalCampus Federal District ~ hybrid

153 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

154 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

155 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

156 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

157 How do DWI Courts work? DWI Courts operate in a post- conviction model using intensive supervision and treatment to change the person's behavior.

158 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 offenders behavior

159 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

160 DWI Court Target Population Convicted DWI-multiple offenders May include 1 st time offenders with high BACs (.15 or >) Alcohol and/or Drug Use Identified

161 Reduced recidivism DWI re-arrest rates Guerin & Pitts, 2002

162 Staggered Sentencing Similar to a DWI Court without the formal structure Judge keeps case on her docket Sentence imposed then parts are suspended

163 $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.

164 Resource

165 Drugged, Drunk and Distracted Driving Toolkit For parents and teens

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