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Drugged Driving: The New Threat. American Judges Association New Orleans, LA October 3, 2012. Judge Harvey J. Hoffman ABA/NHTSA Judicial Fellow. Thanks to Judge Peggy Hora. Basic Proposition: As Society changes The Courts change with them.

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Drugged driving the new threat

Drugged Driving:The New Threat

American Judges Association

New Orleans, LA

October 3, 2012

Judge Harvey J. Hoffman

ABA/NHTSA Judicial Fellow



Basic Proposition:

As Society changes

The Courts change with them


In the 1870’s when you were simply trying to ride your horse back to the bunkhouse:

Drunk driving was no big deal


But with the coming of the internal horse back to the bunkhouse:combustion engine ,

and the interstate highway system …

Things change -

Drastically


  • Over the Past 50 Years: horse back to the bunkhouse:

    • .08 BAC limit

    • Datamaster Technology

    • Ignition Interlock

    • Increased Driver’s License Sanctions

    • Mandatory Minimum

    • Transdermal Technology

    • SFST

    • DWI Courts


Over the Past 20 Years America’s Pattern of Drug Use Changed:

  • Changing public attitudes toward medication

  • Prescription medication advertising

  • Physician attitudes

  • Aging Baby Boomers

  • Medical Marijuana

  • On-line pharmacies


Antidepressants abilify cymbalta elavil paxil zoloft
Antidepressants Changed:Abilify, 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)


In a nutshell
In a Nutshell Changed:

  • 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
Drivers under 25 Changed:

  • 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


Teen drivers
Teen drivers Changed:

  • 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
True or False? Changed:

  • Marijuana is the most common illicit drug in DD cases?

True


Sleep aids
“Sleep aids” Changed:

  • 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)


Tip of the iceberg
Tip of the Iceberg Changed:

Every state reports BAC in fatal crashes

Only 20 states test for and report illicit drugs however


Treatment admissions
Treatment Admissions Changed:

  • Treatment admissions for prescription drug abuse rose 430% from 1999 – 2009

  • Overall ratio of substance abuse admissions stayed constant for the same period

    SAMHSA


Medical profession
Medical Profession Changed:

  • Rise of Addictionologists, medical specialty in pain management

  • In 2012 Washington State passed a law that requires doctors to refer patients taking high doses of opioids for evaluation by a pain specialist if their underlying condition does not improve



2010 nat l drug control strategy
2010 Nat’l Drug Control Strategy patterns have changed over the last 20 years.

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
Drug Control Strategy, cont. patterns have changed over the last 20 years.

  • 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


Behavioral domains relevant to driving
Behavioral domains relevant to driving patterns have changed over the last 20 years.

  • Alertness and arousal

  • Attention and processing speed

  • Reaction time and psychomotor functions

  • Sensory-perceptual functions

  • Executive functions

    NHTSA (2009)


How does mj affect driving
How does MJ affect driving? patterns have changed over the last 20 years.


Marijuana studies
Marijuana studies patterns have changed over the last 20 years.

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
Marijuana studies, cont. patterns have changed over the last 20 years.

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 cont1
Marijuana studies, cont. patterns have changed over the last 20 years.

  • 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 cont2
Marijuana studies, cont. patterns have changed over the last 20 years.

  • 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 cont3
Marijuana studies, cont. patterns have changed over the last 20 years.

  • 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 cont4
Marijuana studies, cont. patterns have changed over the last 20 years.

  • 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


What about medical mj
What about “medical” patterns have changed over the last 20 years.MJ?


Rx and o t c drugs
Rx and O-T-C Drugs patterns have changed over the last 20 years.

  • Driving impairment can also be caused by prescription and over-the-counter drugs


Do not operate heavy equipment
“Do Not Operate patterns have changed over the last 20 years.Heavy Equipment”


True or false1
True or False? patterns have changed over the last 20 years.

  • A person impaired by Xanax (Alprazolam) will appear similar to one intoxicated by alcohol?

True


Rx studies
Rx studies patterns have changed over the last 20 years.

  • 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
Rx studies, cont. patterns have changed over the last 20 years.

  • 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)


Okay so we all agree drugged driving is a problem where are we currently
Okay. So we all agree drugged driving is a problem. patterns have changed over the last 20 years.Where are we currently:


The great divide
The Great Divide patterns have changed over the last 20 years.

Per Se States

vs.

Non-Per Se States


Per se law
Per Se Law patterns have changed over the last 20 years.

  • “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.”


Strict liability for drugs
Strict liability for drugs patterns have changed over the last 20 years.

  • Even a trace amount of methamphetamine is enough to convict

  • Strict liability statute

  • Level of impairment need not be proved

    Illinois v. Martin, No. 109102, Ill. Supreme Court (4-21-11, Rehearing den.)


Per se states
Per se states patterns have changed over the last 20 years.

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


Per se laws
Per se laws patterns have changed over the last 20 years.

  • Began with .08 standard for alcohol

  • BUT lack of experiments and evidence on “drugged driving”

  • Per se (zero tolerance) laws are linked to illicit drugs


Jury questions per se states
Jury Questions Per Se States patterns have changed over the last 20 years.

  • Will they require proof of impairment?

    • Poor driving

    • Lack of co-ordination

    • Cognitive Impairment

  • Will the type of drug affect jury attitudes?

    • Marijuana

    • Medical marijuana card

    • Prescription medication if has valid prescription

    • OTC

    • Methamphetamine

    • Heroin - methadone


  • Non per se laws
    Non-per se laws patterns have changed over the last 20 years.

    • Behavior based, i.e., must be “impaired” or “under the influence”

    • Evidence collected by police

    • Biological specimen (blood, breath, urine) or refusal


    There s no 08 for other drugs
    There’s no .08 for other drugs patterns have changed over the last 20 years.

    • 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.


    It s complicated
    It’s complicated patterns have changed over the last 20 years.

    • The therapeutic and toxic concentration of drugs may overlap and are a function of:

      • How long individual is on drugs

      • Tolerance

      • Metabolic status


    What About Medical Marijuana? patterns have changed over the last 20 years.


    Answer driving while impaired by any drug is illegal in all states
    Answer: Driving while impaired by any drug is illegal in all states.

    • However, unlike alcohol, marijuana stays in the blood long after it wears off

    • There is no consensus as to what kind of marijuana in the blood stream causes impairment

    • Two states – 2 nanograms

    • Colorado and Washington considering 5 nanogram


    A bit of honesty
    A Bit of Honesty states.

    “ 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

    White House Drug Czar


    Gold standard
    Gold Standard states.

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


    Prosecutor may need
    Prosecutor may need states.

    Expert witness in drugs such as

    • Advanced Roadside Impaired Driving Enforcement (ARIDE)

    • Drug Recognition Expert (DRE)



    Right of confrontation
    Right of confrontation states.

    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
    Confrontation, cont. states.

    • 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
    Bullcoming states.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.”  


    Random drug screens
    Random Drug Screens states.

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


    Case facts
    Case Facts states.

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


    Case facts cont
    Case Facts, cont. states.

    Defendant then filed motion to terminate pretrial urine drug screenings. Trial court denied motion.


    Finding
    Finding states.

    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)


    Drug recognition evaluation and daubert
    Drug Recognition Evaluation and Daubert states.

    Defendant was charged with DWI-D and speeding.

    DRE testified as an expert on the Drug Recognition Evaluation protocol


    Defense argued
    Defense Argued states.

    • Testimony fell within Daubert parameters.


    Court found
    Court Found states.

    DRE protocol and conclusions could be admitted

    DRE could testify to probabilities

    DRE conclusion could not be admitted as an established scientific FACT.


    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


    Standardized field sobriety tests
    STANDARDIZED FIELD SOBRIETY TESTS required, only proof that the defendant was ‘under the influence’ sufficiently causing impairment.

    • Validated tests for alcohol:

      • Horizontal Gaze Nystagmus

      • Walk and Turn

      • One Leg Stand


    Sfsts
    SFSTs required, only proof that the defendant was ‘under the influence’ sufficiently causing impairment.

    • Valid for drugs?

    • Any drugs or just some?

    • Who says?


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