DRUGGED DRIVING
Hon. Peggy Fulton Hora
Judge of the Superior Court (Ret.)
MADCP Conference
March 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
What Drugs?
•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?
Most common were marijuana and
stimulants (cocaine and amphetamines)
¼ were positive for marijuana
~¼ stimulants
May 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
Tip of the Iceberg
•Every state
reports BAC in
fatal crashes
•Only 20 states
test for and
report illicit
drugs
HOW DRUGS AFFECT DRIVING
Behavioral domains relevant to driving
1. Alertness and arousal
2. Attention and processing speed
3. Reaction time and psychomotor functions
4. Sensory-perceptual functions
5. 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 Kona
to 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
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 Alcoho
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 extendedrelease 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
Antidepressants
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, 20052008,” 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” 281381(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 cases
1) 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 training
iii.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)
MATRIX CHART
DEP
STIM
HALL
D/A
NARC
INHAL
CANNA
BIS
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.
2.
3.
(1) Soma & Quaaludes cause dilation
(2) Normal but may be dilated
(3) May be normal with low THC levels
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?
Including roadside tests, lasers, drug breath tests, transdermal
transmission of drugs, electronic sensors, saliva tests
NEW TECHNOLOGY
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.
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
94
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.
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
95
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-dopetest/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
98
SENTENCING ISSUES AND
PROMISING PRACTICES
~2,800 Drug Tx Courts in U.S.
Drug Tx
Courts
Adult
Juvenile
Family
DWI
Reentry
Tribal
Campus
Federal
District
~600
Limited 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
Re-arrest rates 19x’s
greater for offenders
sentenced traditionally
• A
L
L
• D
W
I
•
•
Fuller, Carey and Kissick, 2007
13.6%
15.2%
24.2%
Georgia Re-Arrest Rates
• 26%
9%
•4 year, 3 site
study
•Prevented 47112
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 College
NJC
•
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
Drivers
http://www.ndaa.org/pdf/drug_toxicology_for_prosecutors_04.p
df
Questions/Comments