Drugged Driving: The New Threat

1. Drugged Driving:The New Threat American Judges Association New Orleans, LA October 3, 2012 Judge Harvey J. Hoffman ABA/NHTSA Judicial Fellow

2. Thanks to Judge Peggy Hora

3. Basic Proposition: As Society changes The Courts change with them

4. In the 1870’s when you were simply trying to ride your horse back to the bunkhouse: Drunk driving was no big deal

5. But with the coming of the internal combustion engine , and the interstate highway system … Things change - Drastically

6. Over the Past 50 Years: • .08 BAC limit • Datamaster Technology • Ignition Interlock • Increased Driver’s License Sanctions • Mandatory Minimum • Transdermal Technology • SFST • DWI Courts

7. 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

8. 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)

9. 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

10. 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

11. 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)

12. True or False? • Marijuana is the most common illicit drug in DD cases? True

13. “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)

14. Tip of the Iceberg Every state reports BAC in fatal crashes Only 20 states test for and report illicit drugs however

15. 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 SAMHSA

16. 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

17. 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

18. 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

19. 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

20. Behavioral domains relevant to driving • Alertness and arousal • Attention and processing speed • Reaction time and psychomotor functions • Sensory-perceptual functions • Executive functions NHTSA (2009)

21. How does MJ affect driving?

22. 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)

23. 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)

24. 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)

25. 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)

26. 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)

27. 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

28. What about “medical” MJ?

29. Rx and O-T-C Drugs • Driving impairment can also be caused by prescription and over-the-counter drugs

30. “Do Not Operate Heavy Equipment”

31. True or False? • A person impaired by Xanax (Alprazolam) will appear similar to one intoxicated by alcohol? True

32. 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

33. 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)

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

35. The Great Divide Per Se States vs. Non-Per Se States

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 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.)

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

39. 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

40. 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

41. 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

42. 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.

43. 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

44. What About Medical Marijuana?

45. 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

46. 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

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

48. Prosecutor may need Expert witness in drugs such as • Advanced Roadside Impaired Driving Enforcement (ARIDE) • Drug Recognition Expert (DRE)

50. Unique legal issues