Colorado Court Rules Marijuana Detection By Canine Unit Insufficient Cause for Search

The Colorado Court of Appeals has ruled that the deployment of a drug-sniffing dog is now a "search" under Colorado state law which requires reasonable suspicion of criminal activity for citizens over the age of twenty-one, and also that a dog's signal, when the dog is trained to detect marijuana in addition to other drugs, is not sufficient cause by itself to conduct an additional search. Colorado voted to legalize recreational marijuana via a ballot initiative constitutional amendment on November 6, 2012. As a result, it is legal for citizens over the age of 21 to possess up to one ounce of marijuana. In the present case, the canine unit that searched the defendant's truck was unable to signal whether it smelled marijuana, which is legal, or another substance which is illegal. Though the Colorado Supreme Court has ruled that a marijuana smell may "contribute" to a probable cause determination, the Court of Appeals ruled that the defendant's presence outside a house in which illegal drugs had been found and the presence of someone known to have used methamphetamine in the past was not enough, in conjunction with the canine unit's signal, to give officers the reasonable suspicion they needed to conduct the search of the defendant's truck that they conducted. As a result, the court found that the defendant's motion to suppress the evidence found in that search should have been granted, and his conviction was subsequently overturned. You can read the Colorado Court of Appeal's decision in the case here. For more coverage, you can read an Associated Press article in US News & World Report here.

Oregon Court Rules on Admissibility of DRE Testimony

The Court of Appeals of Oregon handed down a ruling in July regarding the admissibility of drug recognition expert (DRE) testimony in a traffic case. In its ruling in State v. Beltran-Chavez, the court thoroughly analyzed the nature of DRE testimony, its scientific validity, and its admissibility under different rules of evidence. The main issue on appeal was whether the state had needed to lay a foundation for its evidence against the defendant during trial. The court held that the general expert testimony of the officer regarding his observations was not scientific and did not require a foundation to be laid, but the officer’s determination as to whether the defendant had passed or failed field sobriety tests *was* scientific and required a foundation. As such, the court overturned the defendant’s conviction for impaired driving, as the state did not lay a proper foundation for that testimony. You can read the court's decision here.

Ohio Supreme Court Strikes Down Statute Prohibiting Local Governments From Using Traffic Cameras

In a 5-2 decision handed down on July 26, 2017, the Ohio Supreme Court struck down a statute that made it prohibitively burdensome for local governments in Ohio to use traffic cameras. The City of Dayton challenged the 2015 statute, which said that cities had to: 1) post a full-time police officer at each operating camera, 2) conduct a three-year traffic study before deploying a camera, and 3) refrain from giving tickets to those driving less than 6 mph over the limit in a school zone and 10 mph over the limit elsewhere. The majority opinion for the court stated that the law "infringe[d] on the municipality’s legislative authority without serving an overriding state interest and is therefore unconstitutional." State legislators are now attempting to devise other ways to prohibit the use of speed cameras in Ohio. You can read the opinion here, and for more coverage about the decision and reactions thereto, you can read a Hamilton Journal-News article here.

NPR Explores the Difficulties of Measuring Driving Impairment from Marijuana

NPR's All Things Considered recently ran an excellent in-depth story on how Colorado and other state police are being trained to detect marijuana impairment in drivers. The story details the difficulties that states are facing in determining impairment in drivers as drugged driving becomes an increasingly more common occurrence, particularly as states like Colorado move to legalize the drug. The piece combines interviews with scientists who are working to develop a reliable roadside test (similar to a Breathalyzer), toxicologists who are studying levels of impairment and THC retained in the body, and law enforcement officers who are being trained on the signs of impairment in people who smoke. Particularly of note is the wide variance in officers' assessments of impairment in people who had been smoking marijuana for a training program, detailed near the end of the piece. To read or listen to the entire piece, click here.

Montana Judge Denies Constitutional Challenge to THC DUI Law

Yellowstone County District Judge Gregory Todd denied the recent constitutional challenge to Montana's THC DUI per se law, as discussed in last month's newsletter. The judge concluded that the issue in the case was marijuana consumption, which was not a fundamental right meriting constitutional protection. Despite potential uncertainty regarding the reliability of testing for impairment by marijuana/THC, Judge Todd stated that the law did still fit within the legislature's "responsibility to pass laws that provide for the general welfare." The trial of Kent Roderick Jensen, whose public defender brought the constitutional argument in an attempt to get his client released from jail, will take place at the end of this month. For more information on the case, you can read a report from the Billings Gazette here.

Alabama Governor Strengthens Funding for Traffic Safety Resources

Alabama Governor Kay Ivey recently granted close to $2 million in funding for different traffic safety resources across the state. The governor granted $800,000 to support high-visibility enforcement and checkpoint campaigns such as "Click It Or Ticket" and "Drive Sober or Get Pulled Over," $400,000 to police impaired driving "hot spots," and $367,000 to fund the state's Drug Recognition Expert program, among other equipment purchases and support funding. The governor also recently announced an additional $171,000 in funding for a statewide traffic safety prosecutor, funding which came from a NHTSA grant. For more information on the announcements, see this WKRG article and this release from the Office of the Governor.

NCSC Traffic Resources

If you have not seen the redesign of the Traffic Resource Center for Judges yet, we invite you to take a few minutes to browse the website here, including our newly updated module on the admissibility of Drug Recognition Expert testimony, found on this page. We also still have physical copies of our recently released issue brief compendium, which may be acquired by emailing Greg Hurley at ghurley@ncsc.org.

Upcoming Courses at the National Judicial College

The following courses are offered by the National Judicial College in Reno, Nevada, in the coming months. A limited number of scholarships are available through generous funding from the National Highway Traffic Safety Administration. Please contact Katheryn Yetter at yetter@judges.org or (775) 327-8269 for more information.

Behind the Wheel: Today’s Traffic Offender (October 23-26; Reno, NV) The arena of traffic-related offenses is constantly evolving. Statistically, driving while under the influence of drugs as well as alcohol will be an issue that will appear with more frequency in traffic courts around the country. This course will delve into several issues that judges who hear traffic cases will experience this year, as well as offer insight into case issues and strategies from the prospective of the prosecutor, the defense attorney, the law enforcement officer, and the treatment provider. The course will also offer in- depth insight on how roadside drug detection is done as well as how the 12-step DRE protocol is conducted. Additionally, the course will offer a demonstration on the various types of drug and alcohol detection equipment that is available and the reliability of the instruments.

Properly and Effectively Adjudicating Drugged Drivers (October 30 - December 8; online; free) Unlike alcohol-impaired driving, drugged driving has fewer tools in the field to detect impairment and concentration levels in the body. Drugged driving cases require a judge to utilize a variety of judicial tools to effectively adjudicate these cases. In addition to the ability to determine which kinds of drugs an individual may be using, it is important to know how these drugs affect the individual and their ability to operate a vehicle. It is also imperative that a judge knows how to effectively craft sentences, which include treatment options, in order to provide a participant with the most beneficial mode of recovery.

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