Judging Traffic (September 2018):
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IN THIS ISSUE:

  • Cannabis Report
  • Traffic Safety Facts
  • Nystagmus and Traumatic Brain Injury Case
  • Law Review on Autonomous Vehicles
  • Law Review Article Describes Possible Mitigation Measures to the Legalization of Marijuana
  • The Worst Driver’s in the US by State

Editor: Greg Hurley

Cannabis Report

In May, 2018 the European Monitoring Centre for Drugs and Drug Addiction released a report titled Cannabis and Driving: Questions and Answers for Policymaking. This is a very well-done report that considers the consumption of cannabis and effects on driving from an international perspective. The report reviews the current European approaches to managing the problem and considers the implications of legalization. It contains a very detailed bibliography that has resources from around the globe. The report is less than 20 pages and worth reading.

Traffic Safety Facts

The National Highway Traffic Safety Administration released Traffic Safety Facts: Summary of Motor Vehicle Crashes in August 2018. This eight-page document is packed full of important statistical information and trends about the safety of our nation’s roadways. For example, it contains ten key findings, the first three are as follows:

  • In 2016 there were an estimated 7,277,000 police-reported traffic crashes, in which 37,461 people were killed and an estimated 3,144,000 people were injured.
  • An average of 102 people died each day in motor vehicle crashes in 2016, one fatality every 14 minutes.
  • Fatality rates per 100,000 population (11.59) and per 100 million vehicle miles traveled (VMT, 1.18) in 2016 have both increased compared to 2015 (11.06 and 1.15, respectively).

Law Review on Autonomous Vehicles

Melissa L. Griffin of Pepperdine University School of Law published an article titled Steering (or Not) Through the Social and Legal Implications of Autonomous Vehicles in a 2018 edition of the Journal of Business, Entrepreneurship & the Law.   In the article, she describes the controversial aspects of autonomous vehicles.  For example, she notes that there is a view that autonomous vehicles will not be involved in traffic accidents.  However, that simply is an inaccurate assumption.  As presently programmed, autonomous vehicles must obey all traffic laws all of the time.  However, there are situations when a human driver may commit an infraction to avoid a collision when an autonomous vehicle won’t take the same evasive action.  One study found that current autonomous vehicles crash at twice the rate of human controlled vehicles. This should of course change over time as the programming improves.  The article also contains a detailed listing of all of the recent federal and state legislation that is designed to regulate autonomous vehicles. 

Nystagmus and Traumatic Brain Injury Case

The Court of Appeals of the State of Oregon issued an opinion in State v. Brown on September 12, 2018. Mr. Brown was pulled over to investigate driving while intoxicated. The arresting officer asked him about any physical or mental impairments prior to beginning the standardized field sobriety testing process. Mr. Brown indicated that he had a traumatic brain injury. At trial, the arresting officer testified that during the horizontal gaze nystagmus "HGN" test, all six indicators or intoxication were present. The officer further testified that he had completed a 36-hour class on the detection of impaired driving which covered the topic of nystagmus. On cross examination and redirect, he was asked whether a traumatic brain injury could have caused any of the six indicators of impairment he observed while conducting the HGN test. He stated that they could not and the defense objected, arguing that the officer did not have the requisite expertise to make that conclusion. The trial judge overruled the objection and the defendant was ultimately convicted.

The issue on appeal was whether the trial judge erred in concluding that a police officer was qualified to offer expert testimony about the relationship between a traumatic brain injury and nystagmus, and whether said injury could effect the onset of nystagmus during the officers test? The Court of Appeals of the State of Oregon determined that it was reversible error and the case was remanded for retrial. In reaching this conclusion, the appellate court found that the arresting officer neither had practical experience administering the HGN test to people with traumatic brain injuries, nor did his course work fully cover the topic of the impact of a traumatic brain injury on nystagmus. The court seemed to suggest they would have accepted this testimony from a police officer if the officer's background in this topic had been stronger. For example, if he had previously administered the HGN test to people with traumatic brain injuries. This is very interesting because the appellate court is signaling that highly experienced arresting officers may be able to be qualified as “experts” on some topics that traditionally may have required the prosecution to call an outside expert.  

Law Review Article Describes Possible Mitigation Measures to the Legalization of Marijuana

Tyler Haston, a J.D. candidate at Indiana University Robert H. McKinney School of Law, published a law review article titled Marijuana Legalization in Indiana:  Amending the Indiana Code to Protect Motorists and Pedestrians in the most recent edition of his school’s law review.  He makes the assumption that either marijuana use for medical purposes and/or recreational purposes will eventually be legal in the state of Indiana.  He then considers the statutory changes that would be required to keep motorists and pedestrians safe in the state.  In his view, the penalty structure for drug impaired driving would need to be increased to accomplish this public policy objective.  This is a well written article that is worth reading.  The article also has well footnoted factual information. 

The Worst Driver’s in the US by State

Business Insider published an article on August 20, 2018 titled These states have the Worst Drivers in America.  To create the ratings, a group called SmartAsset gathered data on each state based on the number of drivers with insurance, number of DUIs per driver, and the average number of deaths per miles driven.  The results are interesting. 

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