1.DRUGGED DRIVING Hon. Peggy Fulton Hora Judge of the Superior Court (Ret.) Driving Them to SobrietyNADCP 18th Annual Training ConferenceMay 30, 2012Nashville TN

2. Learning Objectives As a result of this presentation, judges will beable to:1. Articulate the effects drugs have on driving;2. Anticipate problems in jury trials; and,3. Rule on unique legal issues in drugged driving cases 3. In a Nutshell 1:8weekend, nighttimedrivers test positive forillicit drugs 33% of all drivers withknown drug-test resultswho were killed in motorvehicle crashes in 2009tested positive for drugs(illegal substances aswell as over-the counterand prescriptionmedications)NHTSA/FARS 4. Drugged driving on the rise The percentage of mortally wounded drivers who later tested positive for drugs rose 18 percent between 2005 and 2011Stoned driving epidemic puts wrinkle in Marijuana debate, AP (Mar. 18, 2012) 5. Students were aboutto board a bus toDisneyland The driver failed SFTs He had cocaine,thepainkiller Endocet andthe sleeping pillZolpidem in hispossessionDrug charges for bus driver in Disneyland trip, KTVN 2 News, May 31, 2012 6. 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 Almost half (42%) of fatally injured drivers who tested positive for marijuana were under the age of 25.Drugged driving, NIDA Infofacts, (2010)NHTSA 7. What drugs?Most common were marijuana and stimulants (cocaine and amphetamines) were positive for marijuana~ 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) 8. Tip of the icebergEvery state reports BAin fatal crashesOnly 20 states test forand report illicit drugshoweverInvestigation may stopPAS shows .08 or > 9. How drugs affect driving 10. Behavioral domains relevant todriving1. Alertness and arousal2. Attention and processing speed3. Reaction time and psychomotor functions4. Sensory-perceptual functions5. Executive functionsNHTSA (2009) 11. How does MJ affect driving? 12. Marijuana studiesdelta-9-tetrahydrocannabinol (THC ) affects areas of the brain that control the bodys movements, balance, coordination, memory, and judgment, as well as sensations 13. 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 levelsDrugged driving, NIDA Infofacts, (2010) 14. 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 15. Marijuana studies, cont. Research shows that impairment increasessignificantly when marijuana use is combined withalcohol Studies have found that many drivers who testpositive for alcohol also test positive forTHC, making it clear that drinking and druggeddriving are often linked behaviorsDrugged driving, NIDA Infofacts, (2010) 16. 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 culpableDrugged driving, NIDA Infofacts, (2010) 17. Saliva test for recent use National Institute on Drug Abuse (NIDA) reportsthere will soon be a saliva test to detect recentmarijuana use The saliva test currently being developed stillwont detect levels, only whether the person hassmoked recently or not 18. Marijuana studies, cont. Eight of the nine studies found driverswho use marijuana are significantlymore likely than people who dont usemarijuana to be involved in motorvehicle crashes. MJ users more than 2xs more likely tobe involved in a crash Marijuana Use By Drivers Linked With Increased Risk of MotorVehicle Crashes, Join Together, Oct. 7, 2011 19. Latest research Driving under the influence of cannabis almostdoubles the risk of a serious crash Risk is substantially higher if the driver is aged under35 Overview of nine previously-published papers whichlooked at more than 49,000 people These investigations were deemed to be of highquality because the driver had given a blood sampleafter the accident or admitted to smoking cannabisprior to the crashBritish Medical Journal 2/12 20. What about medical MJ? 21. Medical marijuana Denial of equal protection to prosecute marijuana users for DWI since medical marijuana users couldnt be prosecuted under per seLove v. State, 271 Ga. 398, 517 S.E.2d 53 (1999) Not so with cocaine since there is no legal use except topicallyKeenum vs State 248 Ga. 474; 546 SE2d 288 (2001) 22. Discuss: In what way, if any, will medical marijuana laws affect DWI trials Even if medical marijuana is legal in a particular state, what about its prohibition under Federal law How, if in any way, is impairment by medical marijuana different from impairment by alcohol 23. Rx and O-T-C Drugs Driving impairment can also be caused by prescription and over-the-counter drugs 24. True or False? A person impaired by Xanax (Alprazolam) will appear similar to one intoxicated by alcohol?TRUE 25. 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 FoundationMothers New Little Helper, The New York Times (Nov. 6, 2011) 26. 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 oldsPratt, 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) 27. Do Not OperateHeavy Equipment 28. Rx studies Two meta analyses ofbenzodiazepines(Ativan, Xanax, Valium)showed 60-80% increasedcrash risk Increase of 40% for crashresponsibility Benzos with alcohol increaserisk 8xs 29. 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 riskEffects of benzodiazepines, antidepressants and opioids and ondriving: A systemic review and meta analysis of epidemiologicaland experimental evidence, AAA Foundation Report (2010) 30. Drug determines attitudes DISCUSS: Is there a difference between driving impaired by prescribed medication vs. methamphetamine? 31. Per se and non-per se laws 32. 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. 33. 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 34. "Ill be dead and so will lots of other people from old age, before we know the impairmentlevels [for marijuana and other drugs]. Gil KerlikowskeStoned driving epidemic puts wrinkle in Marijuana debate, Associated Press (Mar. 18, 20120 35. Per se laws Began with .08 standard for alcohol BUT lack of experiments and evidence on drugged driving 36. Per Se Law It shall be a misdemeanor for any person to drive with any amount of the drugs listed on Schedule I, II, III as found in Section 12345. 37. Strict liability for drugs Even a trace amount of methamphetamine isenough to convict Strict liability statute Level of impairment need not be provedIllinois v. Martin, No. 109102, Ill. Supreme Court (4-21-11, Rehearing den.) 38. Non-per se laws Behavior based, i.e., must be impairedor under the influence Evidence collected by police Biological specimen(blood, breath, urine) or refusal 39. Prosecutor may needExpert witness in drugs such as: Advanced Roadside Impaired Driving Enforcement (ARIDE) Drug Recognition Expert (DRE) 40. Unique legal issues 41. 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) 42. Initial Stop What are the signs of impairment? Use of Horizontal Gaze Nystagmas (HGN)? Physical evidence, e.g., open container vs. joint in ashtray 43. Law and Motion/Pre-Trial/Voir Dire Suppression issues Motions in Limine Voir dire issues (reluctance with marijuana; prejudice about other illicit drugs?) 44. Admissibility Daubert /Frye scientific validity of test or deviceutilized.(HGN,U/A or other testing device) SFSTs in drug cases 45. Right of confrontationBullcoming v. New Mexico 557 U.S. ___ (2011)(5:4) May not introduce a forensic lab report containinga testimonial certification through the in-courttestimony of another scientist. 46. 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. 47. 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. 48. Jury Attitude Might the drug effect the verdict? Methamphetamine, heroin, marijuana vs. O-T-Cdrugs? The CSI effect. How much science does a jurywant to convict?See: Court Review Vol. 47; No. 1-2 (2011) 49. Whats different? DWI alcohol and DWI drugs Separate tracks in DWI Court? Different conditions of probation? Different treatment tracks? Attitude differences between alcohol, illicit drugs and OTC or prescription medication? 50. $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 whileimpaired? Different strategies apply to each. 51. Resources 52. Drugged, Drunk and Distracted Driving Toolkit For parents and teens www.TheAntiDrug.com