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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

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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

Drugged driving the new threat

Thanks to Judge Peggy Hora

Drugged driving the new threat

Basic Proposition:

As Society changes

The Courts change with them

Drugged driving the new threat

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

Drunk driving was no big deal

Drugged driving the new threat

But with the coming of the internal combustion engine ,

and the interstate highway system

Things change -


Drugged driving the new threat

  • Over the Past 50 Years:

    • .08 BAC limit

    • Datamaster Technology

    • Ignition Interlock

    • Increased Drivers License Sanctions

    • Mandatory Minimum

    • Transdermal Technology

    • SFST

    • DWI Courts

Drugged driving the new threat

Over the Past 20 Years Americas 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

    Mothers 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

Drugged driving the new threat

  • American societys attitudes about drugs and drug usage patterns have changed over the last 20 years.

    • Patterns are clear

    • Data is incomplete

    • Courts responses just starting to change

2010 nat l drug control strategy

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

  • 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)

How does mj affect driving

How does MJ affect driving?

Marijuana studies

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)

Marijuana studies cont

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)

Marijuana studies cont1

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)

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 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

What about medical mj

What about medical MJ?

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

Do not operate heavy equipment

Do Not Operate Heavy Equipment

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)

Okay so we all agree drugged driving is a problem where are we currently

Okay. So we all agree drugged driving is a problem.Where are we currently:

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

    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.

    It s complicated

    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

    Drugged driving the new threat

    What About Medical Marijuana?

    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

    Ill 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)

    Unique legal issues

    Unique legal issues

    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.

    Drugged driving the new threat

    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?

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