Welcome to Issue #15
Welcome to Directions: The Newsletter of the Judicial Resource Center on Drug-Impaired Driving. Each month we’ll bring the latest case law, judicial resources, articles, and more right to your email inbox. For previous issues or to subscribe, please click here. Additionally, we invite you to check out our Resource Center, a repository of educational materials on drug-impaired driving, hand-selected for the judiciary. If you have materials you want considered for inclusion in either our newsletter or resource center, please contact us at: trafficresources@judges.org
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Drug Impaired Drivers in DWI Courts:
Yea or Nay?
by James Eberspacher, division director
National Center for DWI Courts
A division of the National Association of Drug Court Professionals
Impaired driving is not an alcohol-only issue anymore. National and state data show drug-involved/impaired driving is as prevalent, if not more, than alcohol-impaired driving. Polysubstance use and impaired driving are nearly synonymous, and one of the more common substances found is THC (marijuana). A majority of states have either legalized recreational or medical marijuana. This has led to states and local jurisdictions responding to the issues that legalization, increased use perhaps, present. For jurisdictions that utilize impaired driving treatment courts (i.e., DWI courts), how does this impact their work? This article will examine the issues, real or perceived, that marijuana presents for DWI court practitioners.
One of the common questions DWI court practitioners have is whether to allow drug-impaired DWIs into the program or to refer them to a different model of treatment court (e.g., adult drug treatment court). To fully appreciate the underlying causes of impaired driving, one needs to consider the act of impaired driving itself. First, the individual must be impaired by a substance or substances. Second, the individual must operate a vehicle while impaired by those substances. These are two distinct actions where both must be present to be arrested for impaired driving. Further, these two actions represent a behavior, one that becomes habitual for repeat-impaired drivers. If the individual engaged in this behavior is high-risk and high-need (based on risk/need and clinical assessments), DWI court is the best place for the individual. DWI court practitioners are trained, skilled, and knowledgeable about how to best intervene, treat, and provide structure/accountability for this population. When considering eligibility for this population, they should disregard the substances involved with the behavior because it’s the behavior that needs to be treated and corrected. Mind you, disregarding the substances involved does not imply that treatment isn’t involved, just the opposite. The substance use disorder present is one of the contributing factors for this habitual behavior.
When, if ever, do the drugs involved in the behavior matter to DWI court practitioners? The type of drugs involved in the behavior does matter, just not to the extent as many may think. While it’s important to understand the full picture of the DWI court participant, drug(s) of choice (DOC) should not be the determinant of programming. DOC is informative, in that it provides information to treatment and supervision in the development of treatment and supervision plans. For example, treatment may utilize a specific approach depending on the DOC, while DOC may guide supervision in their approach to drug testing.
Justice system professionals who have worked with impaired drivers for any length of time fully understand and appreciate the antisocial attitudes that impaired drivers often have. Usually associated with alcohol, impaired drivers generally disregard their justice involvement, minimize or excuse their use and behaviors, and separate themselves from “drug users”. Alcohol is a legal drug and its pervasiveness in our society plays a role in those attitudes. For DWI court practitioners, this can be a barrier to treatment progress, compliance with supervision, and messaging from the judge. As marijuana becomes more mainstream, marijuana users appear to be following suit by minimizing the impairing effects of marijuana, especially as it relates to driving. DWI court practitioners should be cognizant that marijuana-using participants may have similar barriers as they’ve experienced with alcohol-impaired drivers when it relates to cognitive distortions.
The issue of medical marijuana is a complex one for DWI court practitioners. For states where medical marijuana can be prescribed, DWI court practitioners must take steps to verify the taking of marijuana is indeed for that purpose. Like any other prescription, DWI court practitioners should verify medications with prescribing doctors as well as ensure participants understand their role in informing medical professionals of their substance use disorder and involvement in treatment court. Just like any other medication, DWI court practitioners must work collaboratively with the prescribers. Medical marijuana should be allowed just as any other medication would be. Blanket prohibitions on medications are out of the scope of practice of the treatment court. That said, jurisdictions receiving federal grant money to support their DWI court need to check with the grant providers to determine if there are federal restrictions in this area.
Let’s be clear, recreational use does not come into play here. The recreational use of marijuana is prohibited for DWI court participants. While that may be obvious to many, it still warrants stating that fact. The goal of DWI courts and its participants is recovery and we must not lose focus of that goal.
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Recent Cases of Note
by Earl G. Penrod, Senior Judge
Indiana Judicial Outreach Liaison
Judge in Residence, National Judicial College
Impairment… But Caused by WHAT?
State v. Love, 188 N.E.3d 622 (Ohio App. 2022)
Defendant’s conviction for operating a vehicle under the influence of alcohol or drugs was reversed due to lack of evidence that defendant was impaired by a ‘drug of abuse’ at the time of the stop. A DRE evaluation was conducted, and the DRE testified that he believed defendant had taken methamphetamine. However, the DRE’s findings were not fully supportive of methamphetamine usage and the State offered no other evidence regarding methamphetamine or any other drug of abuse. The Court of Appeals noted that proof of impairment is not enough as the State must prove the cause of the impairment was a drug of abuse. Specifically, the State’s burden is twofold: whether defendant used a drug of abuse and whether the effects of that drug caused impairment.
Smell of Burnt Cannabis: Probable Cause
People v. Stribling, 2022 IL App (3d) 210098, 2022 Ill. App. LEXIS 406 (September 19, 2022)
The Illinois Court of Appeals (Third District) provides a nice overview and analysis of the changing landscape of cannabis law. In a section entitled “In the Weeds of Cannabis Law” the Court addresses how the changing legal status of cannabis usage and possession has impacted search and seizure laws. In summary, the Court holds that the smell of burnt cannabis, along with defendant advising someone had smoked in the vehicle a long time ago was NOT enough for officer to conclude there was a substantial chance of criminal activity as there were no collaborating factors to establish probable cause to search the vehicle. In that it was legal for the defendant to possess some cannabis and drive after smoking cannabis so long as the concentration in the blood or urine did not exceed the threshold amount, the evidence did not show that the officer had concerns about the defendant’s blood concentration or any impaired driving.
Forced Specimen Collection Following Test Refusal
People v. Raider, 2022 Colo. LEXIS 817, 2022 WL 4127813 (September 12, 2022)
The Colorado Supreme Court addresses the State’s Expressed (Implied) Consent Statute by holding that the prohibition against forced specimen collection from a suspected impaired driver who refuses a test applies only to warrantless searches. In Colorado, if a driver refuses to submit to a test, the officer is not permitted to physically restrain the person to obtain a sample except for 4 specific offenses. The Colorado Supreme Court rejected the defense argument that the Expressed Consent statute prohibition of forced specimen collections applied in all impaired driving cases by finding that the forced specimen collection prohibition has no bearing on searches conducted pursuant to a warrant.
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