IN THIS ISSUE

April, 2013

  • Designer Drugs and the Law

  • State of Idaho v. Geirrod Detloph Stark

  • Commercial Vehicles & Courts Webcast Series presents: "Compliance: A Best Practice State"

  • What’s Happening in the States

  • DRE Required to Observe Defendant in KY

  • Pierce County (WA) District Court Now Offers Self-scheduling for Infraction Hearings

Editor: Greg Hurley

Designer Drugs and the Law
Timothy P. Stackhouse published an article titled, Regulators in Wackyland: Capturing the Last of the Designer Drugs.  The article was published in the Arizona Law Review, Vol. 54, 1105 in 2012 but only recently became available as open source content online.  This article surveys the types of designer drugs that have recently appeared on the market and the various strategies that federal and state governments have taken in response.  The author notes:

"Efforts to control synthetic cannabinoids and cathinone derivatives have failed. The traditional approach of individually listing drugs as they become a problem is too slow, and there are too many new compounds to replace them as soon as they are banned. Analog acts, which require an easily exploited intent requirement to be valid, suffer from vagueness and overbreadth."

This article is worth reading because it identifies the statutory solutions that various states have enacted to combat the problem, and explains the weak points of each statutory system.  The author does provide a series of recommendations in his conclusion to statutorily identify synthetic substance in a way that is constitutional yet broad enough to block efforts by illicit chemists to circumvent the law.

Commercial Vehicles & Courts Webcast Series presents: "Compliance: A Best Practice State"
The National Center for State Courts is pleased to announce the fourth in a series of six webcasts addressing critical commercial driving issues facing state courts.

Join the Commercial Driving Resource Center for the fourth webcast in the monthly series entitled, "Compliance: A Best Practice State" to be broadcast on April 18 at 2:00 p.m. EST.  The webcast is free but participants need to register which can be done thru the link above.

This webcast series is funded by a grant from the Federal Motor Carrier Safety Administration (FMCSA), a division of the Department of Transportation.

State of Idaho v. Geirrod Detloph Stark
The Court of Appeals of the State of Idaho issued an opinion in State of Idaho v. Geirrod Detloph Stark on April 4, 2013.  Mr. Stark was convicted of “driving under the influence of a drug or intoxicating substance" by a magistrate court and the conviction was affirmed by a district court in its appellate capacity.  A police officer witnessed Mr. Stark make an illegal right hand turn and drive illegally down a one way street.  The arresting officer testified,

“Stark appeared to have difficulty keeping his eyes open and remaining awake, and that Stark’s head drooped and bobbed as if he lacked control of his neck muscles. Stark performed poorly on both the walk and turn and the one-legged stand test.  During the walk and turn test, he was unable to keep his balance as the officer provided instructions, he started the test too early, he stepped off the line, he raised his arms to keep his balance, he forgot to count out loud, he took the wrong number of steps, and he stopped the test too early. During the one-legged stand test, he was unable to keep his balance as the officer provided instructions, he swayed, he put his foot down during the test, and he hopped.”

A second officer who was trained as a “drug recognition expert” attempted to interview Mr. Stark, however he was non-compliant.  Mr. Stark did agree to provide a blood sample.  Subsequent toxicology found the presence of Carboxy-THC in the sample. 

The appeals court reversed the conviction.  In applying a two prong test, they agreed that there was ample evidence that Mr. Stark was impaired.  However, they opined that the state failed to prove that the impairment was caused by alcohol or drugs.  They further stated that the state must also present evidence, besides the impairment itself, to prove that the impairment was caused by alcohol, drugs, or intoxicating substances.  They noted that the presence of Carboxy-THC, which is a metabolite of the active ingredient of marijuana, THC, only proves that the defendant used marijuana at some point in the past.  It did not prove that the impairment as observed at the time of the arrest was caused by marijuana.  Last the appeals court suggested that the state could have used expert testimony at trial to further support its case.  The court said, “While it may be possible, through the use of expert testimony, to demonstrate that a person is under the influence of an unknown drug or intoxicating substance that does not appear on a toxicology report, the State did not present such testimony in this case.”

What’s Happening in the States 

Alabama
For those of us who must be sitting down (in a chair) with reading glasses to text, this story will surprise and amaze.  This talented young man claims he has been able to “double text” by driving with his knees while holding a cell phone in each hand since he was only 15 years old. Unfortunately this time, he was pulled over while “knee driving” through a tunnel and state troopers found $5,000 in cash, 100s of prescription drug pills, and a three year old in the backseat.

Arizona
A Phoenix attorney is appealing his clients DUI conviction on the theory that the interpretation of the statue leads to an “absurd result.” Arizona is one of eighteen states that have approved the use of medical marijuana. Michael Alarid argues that the presence of the metabolite Carboxy-THC which can remain in the blood for up to one month after use but does not cause impairment should not be sufficient evidence for a DUI conviction. He claims that based on the interpretation of the statute "It's possible in Arizona to be convicted of DUI when, in fact, a blood test proves a person is not impaired."

Montana
Mineral County DUI/Drug court is suspending operations once the current three participants graduate since 90% of DUIs in the county are out-of-state. The grant funds that have not been used will be returned to the funders and if the need arises the court will be restarted. 

Virginia
A published opinion from the Virginia Court of Appeals Montano v. Commonwealth was issued March 26, 2013 and involves the following three issues on a felony murder conviction.  1) Can malice be imputed to the drunk driving? (yes based on prior case law voluntarily driving with a BAC of .20%, twenty beer cans in the vehicle, and one partially full can with condensation  qualify) 2) Was the killing part of the felony drunk driving occurrence? and 3)Was the death caused in the furtherance of the felony? (yes to both of these as they were part of the same transaction and close enough in time, place and “causal connection.” ) Mr. Montano’s conviction for felony homicide based on the felony driving while intoxicated offense was affirmed.

Washington
Because Okanogan County has one of the highest rates in the state for DUI related fatalities, officials are planning to open a DUI court in October.  Staff received training from the National Center for DWI Courts paid for by a grant from the Washington Traffic and Safety Commission.

DRE Required to Observe Defendant in KY
The Kentucky Court of Appeals issued an opinion in Commonwealth v. Steven Burton on March 15, 2013.  Mr. Burton was convicted of “second degree manslaughter” and two other offenses related to a motor vehicle crash.  The state provided evidence of the presence of cocaine and marijuana in the defendant’s urine, and testimony from a drug recognition expert, “DRE.”  Following the first trial, the Kentucky Supreme Court reversed the conviction based on reversible error with the use of testimony regarding urine screen.  Additionally, the court concluded that it was reversible error to allow DRE testimony when it was not based on personal observations of the defendant.

For the retrial, the state intended to use testimony of a toxicologist and another DRE.  The trial court excluded the testimony of the toxicologist without the benefit of a Daubert hearing.   The trial court reasoned that the expert “could not establish when Burton had ingested the illegal substances or whether he was impaired at the time of the accident.”  Additionally, the trial court refused to hear the proffered testimony of the DRE.  The state indicated that they wanted to present DRE testimony to prove the factors that DRE’s used to make their conclusions, rather than making specific conclusions regarding Mr. Burton. 

The intermediate appeals court affirmed the exclusion of the toxicologist and DRE.  The Court said:

The drug recognition examination is, by its nature, observation intensive, and the reliability of the results of such an exam is intimately tied to the observer’s training. Thus, Trooper Nall’s testimony, which would merely provide drug recognition factors to the jurors, would have been confusing and would have allowed jurors to speculate on its application to the facts or data. This they cannot do. Thus, we believe that the trial court’s ruling excluding Trooper Nall’s (DRE) testimony was within the court’s discretion. Lastly, we likewise agree with the trial court that such testimony would not be wholly outside the common knowledge of the jury.

Pierce County (WA) District Court Now Offers Self-scheduling for Infraction Hearings
On March 28, 2013, Pierce County (WA) District Court administrator Chuck Ramey issued a press release describing a new online system that allows people to schedule infraction hearings themselves.  The system was developed by the court with support from Pierce County’s Information Technology Department.  Besides the convenience for the public, the online system also is expected to reduce the substantial traffic at the court's public counter, over the phone and through the mail. In 2012, there were 58,000 infraction citations filed in District Court. Of those, 16,000 resulted in in-court hearings and 6,000 in hearings by mail.  “Pierce County District Court is very pleased to offer this new way of doing business that makes it easier to access the court’s services. This will benefit everyone involved - the public, the county and the court,” said Presiding Judge Maggie Ross.


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