DRUGGED DRIVING

Hon. Peggy Fulton HoraJudge of the Superior Court (Ret.)

MADCP ConferenceMarch 12, 2014

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

On the rise

•The percentage of mortally wounded drivers who later tested positive for drugs rose 18 percent between 2005 and 2011

“Stoned driving epidemic puts wrinkle in Marijuana debate,” AP (Mar. 18, 2012)

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),

More Teens Driving After Using Marijuana

• 12% of seniors said they drove after using marijuana in 2011, compared with 10% in 2008.

• 28 % of high school seniors said they had ridden in a car in the previous two weeks with a driver who had used drugs or alcohol, or said they had driven after using drugs or alcohol themselves

Monitoring the Future 2013

True or False?

• Marijuana is the most common illicit drug in DWID 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

What Drugs?

What drugs?

Most common were marijuana and stimulants (cocaine and amphetamines)¼ were positive for marijuana~¼ stimulantsMay 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)

• 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

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

Tip of the Iceberg

HOW DRUGS AFFECT DRIVING

Behavioral domains relevant to driving

1.Alertness and arousal2.Attention and processing speed3.Reaction time and psychomotor

functions4.Sensory-perceptual functions5.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)

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

“Drugged driving,” NIDA Infofacts, (2010)

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)

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)

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

Marijuana studies, cont.

• driving after smoking marijuana might almost double the risk of being in a serious or fatal crash.

“Stoned driving epidemic puts wrinkle in Marijuana debate,” AP (Mar. 18, 2012)

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?

Along the road from Konato Hilo, Hawai’i

“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)

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

Seattle the day after marijuana was legalized in WA

Aging Boomers

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)

Arizona vs. Fannin 1 CA-CV 11-0615 (Aug. 2012)

• Affirmative defense• “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.

DISCUSSION QUESTION

• A Sobriety Court participant tests positive for a drug while driving.

• Is there a difference between driving impaired by MISUSED prescribed medication vs. methamphetamine? Alcohol vs. “medical” marijuana

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

DISCUSS:

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

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?)

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.”  

Williams v. Illinois (June 18, 2012)

• Swab from rape kit sent to out-of-state lab for DNA profile

• Expert testified lab was accredited, samples sent to lab and samples returned

• Witness testified DNA result matched Defendant’s blood

• Witness did not testify as to results of outside lab, lab’s handling of sample, or lab’s results accuracy

Illinois Supreme Court

Prosecution may introduce testimonial statements in the forensic reports through expert witnesses because statements introduced to show the basis for an expert opinion are not introduced for the truth of the matter asserted

U.S. Supreme Court

Held: 4-1-4“…no meaningful distinction between disclosing an out-of-court statement so that a factfinder may evaluate the expert’s opinion and disclosing that statement for its truth.”

Plurality opinion (Alito, Roberts, Kennedy, Breyer)

• DNA profile was not testimonial • Emphasized that the report did not

accuse a targeted individual of a crime and that the report appeared reliable

• Thomas concurring: Forensic report NOT testimonial

• Report was not sufficiently “formal” or “solemn” to rank as “testimonial”

Dissent (Kagan, Scalia, Ginsberg, Sotomayor)

• “Been there/done that”• Reliability of lab report could only be determined by confronting those who prepared it (outside lab)

• “The Confrontation Clause, Confused”NYTimes editorial

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)

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

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.

STANDARD FIELD SOBRIETY TESTS (SFSTS)

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?

Admissibility• Daubert /Frye scientific validity of test or device

utilized.(HGN,U/A or other testing device)

• SFSTs in drug cases1) Australian study: SFSTs may be “moderately

accurate for marijuana” 2)“Mildly sensitive” to impairment from cannabis

1) Papafotiou, et al., “An evaluation of the sensitivity of the Standardised Field Sobriety Tests (SFSTs) to detect impairment due to marijuana intoxication,” Psychopharmacology (2005) 180: 107–114

2) Bosker , et al., “A placebo-controlled study to assess Standardized Field Sobriety Tests performance during alcohol and cannabis intoxication in heavy cannabis users and accuracy of point of collection testing devices for detecting THC in oral fluid,” Psychopharmacology (2012) 223:439–446

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 trainingiii.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

CANNAB

IS

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. (1) Soma & Quaaludes cause dilation2. (2) Normal but may be dilated3. (3) May be normal with low THC levels

MATRIX CHART

Question:

• May a Drug Recognition Evaluator (DRE) testify as to the absence of HGN to indicate the type of drug that was allegedly impairing the driver?

NEW TECHNOLOGY

Including roadside tests, lasers, drug breath tests, transdermal transmission of drugs, electronic sensors, saliva tests

Roadside testing

• Oral swabs are being tested for roadside use in the U.S.

• Already in use in Victoria, Australia and other locations

• Acts as screening test with follow-up lab testing

• Less sensitive and specific

Roadside Tests

• 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

Emerging Science & Technology

91

Laser Technology to Detect Drugs

Within the next two years, a powerful and invisible new technology will be deployed by the U.S. government that can instantly scan and identify every molecule on your body or person: the cocaine residue on your dollar bills, prescription drugs in your purse, marijuana in your pocket

92

Laser Technology to Detect Drugs

• The scanner is called the Picosecond Programmable Laser. The device works by blasting its target with lasers which vibrate molecules that are then read by the machine that determine what substances a person has been exposed to.

• It's not limited to marijuana, this device can detect and catalog your use of any recreational drugs, including cocaine, heroin, ecstasy, etc.

93

PBT to Detect Drugs

In a recent study, published in the latest issue of The Journal of Analytical Toxicology, scientists at Karolinska

Institutet, Stockholm, Sweden, there is a report on a unique method for collecting controlled substances from

exhaled breath.

94

Swedish researchers have found that the commercially available breathing test device can be used to detect

12 controlled substances, including marijuana, cocaine, heroin and methamphetamine

Fingerprint Device

The technology, developed by University of East Anglia (UEA) spin-out company Intelligent Fingerprinting, uses a substance that reacts with molecules excreted in the sweat that makes up fingerprints to confirm the presence of a drug.

95

The existing technology can detect cannabis, cocaine, heroin and heroin substitute methadone, but it is believed that it could be expanded for use with other types of drugs monitored by the police, including ecstasy and amphetamines

http://www.theengineer.co.uk/fingerprint-device-could-detect-illegal-drug-use/1004899.article#ixzz2UoUVTkIg

Electronic Sensor

• Philips will introduce a handheld electronic device that uses magnetic nanoparticles to screen for five major recreational drugs traces--cocaine, heroin, cannabis, and methamphetamine. Philips set to introduce its drug tester in Europe

• The device is intended for roadside use by law enforcement agencies and includes a disposable plastic cartridge and a handheld analyzer. The cartridge has two components: a sample collector for gathering saliva and a measurement chamber containing magnetic nanoparticles.

University of Utah has even built a prototype in which a sample-laden stick is swiped across a GMR sensor, like a credit-card through a reader http://www.technologyreview.com/news/414602/device-offers-a-roadside-dope-test/page/2?page=1%2C1&mittr_page=1&nopaging=1#ixzz2UtjXtntt From MIT Technology Review

96

Drugalysers

• Current detection techniques screen for several different drugs - commonly drugs of abuse such as cannabis, cocaine, amphetamines and opiates - using immunoassays.

• Antibodies that latch on to specific chemical structures are used to test for different drugs. Practically, this means applying saliva to a cellulose strip for each drug and waiting for lines to appear on the strips to indicate the results. 97

Drugalysers

• In Australia, immunoassay-based tests are

already used by police officers to detect drugs in saliva.

• These presumptive tests are backed up by laboratory tests, using fluids from the same sample or a second sample to confirm the result. 

• There a study currently being conducted in the Miami-Dade County, FL area on this type of technology.

98

SENTENCING ISSUES ANDPROMISING PRACTICES

~2,800 Drug Tx Courts in U.S.

Drug TxCourts

Adult Juvenile Family DWI Reentry Tribal CampusFederalDistrict

~600Limited and

hybrid

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

MI Sobriety Court Process Evaluation

• DWI

• ALL

• 15.2%

24.2%

• 4.3% 7.7%

• .07%

• 13.6%

Fuller, Carey and Kissick, 2007

Re-arrest rates 19x’s greater for offenders sentenced traditionally

Georgia Re-Arrest Rates

• 26%

9%

•4 year, 3 site study•Prevented 47-112 repeat arrests

•Offenders 65% less likely to reoffend

Fell, et al., “An Evaluation of the Three Georgia DUI Courts,” NHTSA (March 2011)

$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.

National Judicial CollegeNJC

• Drugged Driving Essentials Update Webcast

• Thursday, February 20, 2014• 10:00 a.m. PT | 11:00 a.m. MT |

12:00 p.m. CT | 1:00 p.m. ET• Faculty: Hon. Peggy Hora, California

• 2 ½ day course May 14-16, 2014 Reno NV

• Free for traffic judges

•The 1½ Day "Operational Tune-up“ •Existing DWI Courts •Latest science and best practices related to the DWI/Drug Court field.•Applications are open at www.ndcd.org

Resource

Resource

• “Drugged, Drunk and Distracted Driving Toolkit”

• For parents and teens

• www.TheAntiDrug.com

Drug Toxicology for Prosecutors: Targeting Hardcore Impaired Drivershttp://www.ndaa.org/pdf/drug_toxicology_for_prosecutors_04.pdf

Questions/Comments