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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 combustion engine ,

and the interstate highway system …

Things change -



Over the Past 50 Years:

    • .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
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)

in a nutshell
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


drivers under 25
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.


teen drivers
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
True or False?
  • Marijuana is the most common illicit drug in DD cases?


sleep aids
“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)

tip of the iceberg
Tip of the Iceberg

Every state reports BAC in fatal crashes

Only 20 states test for and report illicit drugs however

treatment admissions
Treatment Admissions
  • Treatment admissions for prescription drug abuse rose 430% from 1999 – 2009
  • Overall ratio of substance abuse admissions stayed constant for the same period


medical profession
Medical Profession
  • 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

American society’s attitudes about drugs and drug usage patterns have changed over the last 20 years.

      • Patterns are clear
      • Data is incomplete
      • Court’s responses just starting to change
2010 nat l drug control strategy
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
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
behavioral domains relevant to 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 studies
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
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 cont1
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 cont2
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 cont3
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 cont4
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
rx and o t c drugs
Rx and O-T-C Drugs
  • Driving impairment can also be caused by prescription and over-the-counter drugs
true or false1
True or False?
  • A person impaired by Xanax (Alprazolam) will appear similar to one intoxicated by alcohol?


rx studies
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
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)

the great divide
The Great Divide

Per Se States


Non-Per Se States

per se law
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.”
strict liability for drugs
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. 109102, Ill. Supreme Court (4-21-11, Rehearing den.)

per se states
Per se states
  • 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
  • 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
  • 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
  • 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
  • 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
  • The therapeutic and toxic concentration of drugs may overlap and are a function of:
    • How long individual is on drugs
    • Tolerance
    • Metabolic status
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

“ 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
  • 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

Expert witness in drugs such as

  • Advanced Roadside Impaired Driving Enforcement (ARIDE)
  • Drug Recognition Expert (DRE)
right of confrontation
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
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
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.”  
random drug screens
Random Drug Screens

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

case facts
Case Facts

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.

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


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

Defendant was charged with DWI-D and speeding.

DRE testified as an expert on the Drug Recognition Evaluation protocol

defense argued
Defense Argued
  • Testimony fell within Daubert parameters.
court found
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.


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
  • Validated tests for alcohol:
    • Horizontal Gaze Nystagmus
    • Walk and Turn
    • One Leg Stand
  • Valid for drugs?
  • Any drugs or just some?
  • Who says?