Ongoing Issues with THC Testing

CBS News and a variety of other news outlets recently reported findings from an American Auto Association (AAA) safety foundation report that concludes, “There is understandably a strong desire by both lawmakers and the public to create legal limits for marijuana impairment, in the same manner as we do with alcohol,” said Marshall Doney, AAA’s President and CEO. “In the case of marijuana, this approach is flawed and not supported by scientific research. It’s simply not possible today to determine whether a driver is impaired based solely on the amount of the drug in their body.” AAA is urging states to use more comprehensive enforcement measures to improve road safety. Rather than relying on arbitrary legal limits, states should use a two-component system that requires (1) a positive test for recent marijuana use, and most importantly, (2) behavioral and physiological evidence of driver impairment.

Update: Minnesota v. Bernard at SCOTUS

Last month we noted that the U.S. Supreme Court would hear arguments in Minnesota v. Bernard (combined with Birchfield v. North Dakota and Beylund v. Levi) on April 20, 2016. The issue in the case is whether states can make it a crime to refuse chemical tests to detect the presence of alcohol in a person’s blood (often done via implied consent laws). This case stems from the Court’s April 2013 ruling in Missouri v. McNeely, which held that the natural dissipation of alcohol in the bloodstream did not constitute an exigent circumstance which would justify a warrantless blood draw to determine whether a driver was impaired or not. At arguments, the justices pressed lawyers representing the states on why they can't simply require police to get a warrant every time police want a driver to take an alcohol test. Justice Stephen Breyer pointed to statistics showing that it takes an average of only five minutes to get a warrant over the phone in Wyoming and 15 minutes to get one in Montana.  Justice Anthony Kennedy said the states are asking for "an extraordinary exception" by making it a crime for people to assert their constitutional rights. He expressed frustration when McCarthy refused to answer repeated questions about why expedited warrants wouldn't serve the state just as well.

Issue Brief: All Blood is not Created Equal

In this edition of the Issue Brief series (brought to you by the Traffic Resource Center) we look at the differences between what is known as whole blood, sometimes referred to as “legal blood,” and serum/plasma/supernatant, sometimes referred to as "medical blood". While blood samples in DUI cases are generally analyzed as whole blood that is not always the case. Blood alcohol testing that is done in hospitals (usually on blood taken for medical purposes) is often performed on the serum or plasma. It is important to find out whether the whole blood or serum/plasma was tested, because the difference will impact the reported BAC. Read more on the issue here.

Beer and Bikes: A marriage made in court?

In a recent article in the Milwaukee Business Journal looks at issues arising from the city's growing craft beer scene, and the increasing use of bicycles as an alternative form of transport. The author explored the issue, and interviewed police and found that zero OWI citations had been given out to bicyclists in the city. In conclusion, she stated "As I learned from experience, biking while intoxicated is more of a personal safety issue than a public safety issue, and it mostly polices itself. Unlike riding a lawnmower or driving a boat — two other activities that can land you in trouble if you do them while drunk — biking takes more balance than most people can muster after a few beers."

Upcoming Courses at the National Judicial College

The following courses are offered by the NJC 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 Rebecca Bluemer at for more information.

Traffic Issues in the 21st Century. May 16-19. Reno, NV: This course is designed to provide judges with an overview of the impaired driving issue, and will provide insight into several pertinent areas, such as impairment detection methods, the pharmacological effects of drugs and alcohol on the human body, and effective sentencing methods. The arena of traffic-related legal matters is constantly evolving, and as such, it is necessary for traffic adjudicators to stay abreast of the newly emerging issues. Our Traffic Issues in the 21st Century course will delve into the most up-to-date, pertinent traffic topics that are appearing in our courts today. This years’ topics will include: the fundamentals of alcohol and drug testing; understanding addiction issues; marijuana legalization and related traffic issues; the Standardized Field Sobriety Test (SFST) information and demonstration; distracted driving issues; elder driver issues; self-represented litigants; and Commercial Driver’s License issues.

NCSC Traffic Resource Center

TheTraffic Resource Center is a cooperative effort between the Department of Transportation and the National Center for State Courts (NCSC) to establish a resource for judges, court administrators, court clerks, and other court staff on issues related to traffic adjudication. It is an integrated clearinghouse of information as well as a training and technical assistance resource to improve court decision-making and processing of traffic cases involving impaired driving, drugged driving, distracted driving, and commercial driving. The purpose of the Traffic Resource Center website is to provide a useful, ready reference for judges new to the bench or recently assigned to traffic cases, who may need quick access to accurate and timely information until they can receive more formal, structured education.

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