DOES ADDICTION IMPAIR ONE’S ABILITYTO DRIVE?By Alyssa Staudinger,1 Tiffany Watson,2 and M. Kimberly Brown3

eports of drug-impaired driving are on the rise, especiallyas the opioid crisis continues to permeate communitiesacross the United States and as more states move tolegalize marijuana use. Like alcohol, drug-impaireddriving can have dangerous consequences. A 2009 study

by the National Highway Traffic Safety Administration (NHTSA)found that for drivers with known test results, “18 percent ofdrivers killed in a crash tested positive for at least one drug.”4 By2016, over 43 percent of fatally-injured drivers with known drugtest results were drug-positive and over 50 percent were positivefor two or more drugs.5 As these statistics indicate, the prevalenceand potential dangerousness of mixing drugs and driving is clear.

National Traffic Law Center

Between the LinesJuly 2018 / Volume 26, Issue 3

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R

U P C O M I N G N DA A T R A I N I N G S

n 2018 Summer Summit Identifying, Investigating and Prosecuting Human and Labor Trafficking July 15–17, 2018, Spokane, WA

n NDAA-APLAN Regional Opioid Training July 23, 2018, Arlington, VA

n Prosecuting Sexual Assault and Related Violent Crimes August 13–17, 2018, Bellevue/East Seattle, WA

n Office Administration September 10-14, 2018, Phoenix, Arizona

n NDAA-APLAN Regional Opioid Training September 17, 2018, Salem, MA

I N S I D E T H I S I S S U E

n Recognizing the Life Saving Power of the DRE /page 4n Fostering CDL Partnerships on the “Road to Zero” /page 7n Trial Tips and Techniques: Introducing Evidence / page 9n TSRP Training Dates / page 14n TSRP News / page 15

S TA F FExecutive DirectorNelson O. Bunn, Jr.

Chief Operating OfficerChristine Mica

THE NATIONAL TRAFFIC LAW CENTER

Program DirectorTom Kimball: tkimball@ndaajustice.org

Senior AttorneysM. Kimberly Brown: mkbrown@ndaajustice.orgRomana Lavalas: rlavalas@ndaajustice.orgPete Grady:pgrady@ndaajustice.org

Staff AttorneysTiffany Watson: twatson@ndaajustice.orgJeanine Howard: jhoward@ndaajustice.org

Project CoordinatorMetria Hernandez

The National Traffic Law Center is adivision of the National DistrictAttorneys Association. This documentwas prepared under CooperativeAgreement Number DTNH22-13-H-00434from the U. S. Department ofTransportation National Highway TrafficSafety Administration. Points of view oropinions in this document are those ofthe authors and do not necessarily represent the officialpositions or policies of the Department of Transportation orthe National District Attorneys Association.

These numbers also underscore the reason whyevery state makes it a crime to drive while underthe influence of a drug. However, should thecriminal justice system go further to protect thepublic by criminalizing drug addiction? Does thenon-impaired but drug-addicted driver pose asimilar danger to that of the driver under theinfluence of drugs? Does drug addiction impairone’s ability to drive? Many medical professionals and abusecounselors view drug addiction and mental healthdisorders similarly. The National Institute of DrugAbuse states, “[a]ddiction changes the brain infundamental ways, disturbing a person’s normalhierarchy of needs and desires and substitutingnew priorities connected with procuring andusing the drug. The resulting compulsivebehaviors that weaken the ability to controlimpulses, despite the negative consequences, aresimilar to hallmarks of other mental illnesses.”6

The tendency to view drug-addiction as adisorder is relatively new. Historically, those with an addiction to drugswere generally viewed as a menace to society. In1937, Commissioner Henry Anslinger, the firstcommissioner of the Federal Bureau of Narcotics(FBN), testifying before Congress stated, “themajor criminal in the United States is the drugaddict; that of all the offenses committed againstthe laws of this country, the narcotic addict is themost frequent offender.”7 Criminalizing the drugaddict and drug-involved behavior increased in1971 when President Richard Nixon declared a“War on Drugs.”8 Subsequently, the Reagan erasaw the passage of The Anti-Drug Abuse Act of1986, which strengthened prosecution andpenalties for the drug user.9

The end of the twentieth century saw a shift inthe paradigm toward a more treatment-centeredfocus to drug addiction. For example, in 2011, theObama Administration announced The National

Prevention Strategy, which focused on greateraccess to treatment services for more Americans.10

A more treatment-centered focus is, no doubt,necessary, and policy in support of this focus istantamount to the fight against drug-addiction.But should, and more importantly, can, thecriminal justice system do more? The State ofCalifornia says “yes.” California’s Driving Under the Influencestatute makes it “. . .unlawful for a person who isaddicted to the use of any drug to drive avehicle.”11 To establish that a driver was addictedwhile driving, a prosecutor must prove: (1) thedefendant drove a motor vehicle; and (2) whenhe/she drove, the defendant was addicted to adrug.12 The term “addicted” is not defined in thestatute itself, but the California criminal juryinstructions provide guidance by defining“addiction” in the following way:

A person is addicted to a drug if he or she:1. Has become physically dependent onthe drug, suffering withdrawalsymptoms if he or she is deprived of it;

2. Has developed a tolerance to the drug'seffects and therefore requires larger andmore potent doses; and

3. Has become emotionally dependent onthe drug, experiencing a compulsiveneed to continue its use.

The prosecution has the burden to prove adefendant meets all three criteria of “addiction” attrial. “The focus of [the statute] is to prohibit theindividual who presents a potential danger on thehighway from driving a motor vehicle . . . .”14

Under California law, a person is addicted whenhe “has reached the point that his body reactsphysically to the termination of drugadministration.”15 Courts have described addictionas “more a process than an event.”16 In fact, the

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“emotional dependence and tolerance” elementshave been found to be “descriptions of stages inthe process which ultimately results inaddiction.”17 A person addicted to drugsexperiences physical symptoms when goingthrough withdrawal of the drug, ranging fromyawning and sweating to “…vomiting, diarrheaand fever….”18 These types of symptoms mayimpact a person’s ability to safely operate a vehicleand, thus, renders one a danger to others.California courts have analogized this to theepileptic driver and endorsed the law as “clearlywithin the legitimate confines of the state’s policepower.”19 If a prosecutor can prove a defendantwas suffering from withdrawal sickness whiledriving, it “is the unmistakable signal that the useris addicted.”20

Interestingly, California courts distinguishaddicts from habitual users. One court opined thatestablishing “habitual use” is not enough to provethat a defendant is guilty of violating Californialaw.21 Though proving that the defendant wasaddicted at the time of driving is imperative, it isnot an easy feat. As every prosecutor knows, successfulprosecution greatly depends on the strength of theevidence. In cases of driving while drug-addicted,a law enforcement officer must obtain actualevidence of addiction. Often, this means an officermust garner statements from the defendant.However, this can sometimes be difficult,considering a case cannot survive a probable causeanalysis based on the defendant’s statementsalone.22 Thus, the observations of the officer,including observations of track marks, pick sores,inability to draw blood, sunken cheeks, and poordental hygiene, are extremely important.Consequently, prosecutions of this offense inCalifornia remain relatively rare, due to thedifficulty of proving the “addiction” element ofthis offense, as well as the specific investigativequestions that must be asked by law enforcement.

As an aside, while the legal use of a drug is not adefense to this crime, it is a defense if a defendantis participating in an approved treatmentprogram.23 This defense is, ostensibly, California’sattempt to push drug-addicted defendants intotreatment. There is little doubt that drug-impaired driverspose a significant danger to the public. Non-impaired but drug-addicted drivers may pose asimilar risk. California serves as an example of acreative manner to deal with at least onedangerous aspect that drugs present to society.

1 Alyssa Staudinger is a California Traffic Safety Resource Prosecutor andan Assistant District Attorney at the Orange County District Attor-ney’s Office in Santa Ana, California.

2 Tiffany Watson is a Staff Attorney at the National Traffic Law Center, aprogram of the National District Attorneys Association, in Arlington,Virginia.

3 M. Kimberly Brown is a Senior Attorney at the National Traffic LawCenter, a program of the National District Attorneys Association, inArlington, Virginia.

4 NIDA. “Drugged Driving.” National Institute on Drug Abuse, 3 Jun.2016, https://www.drugabuse.gov/publications/drugfacts/drugged-driving. Accessed 25 Jun. 2018, citing Drug Involvement of Fatally In-jured Drivers. Washington, DC: National Highway Traffic SafetyAdministration; 2010.

5 Governors Highway Safety Association and Responsibility.org, “Drug-Im-paired Driving, Marijuana and Opioids Raise Critical Issues forStates,” May 2018.

6 NIDA. “Comorbidity: Addiction and Other Mental Disorders.” NationalInstitute on Drug Abuse, 1 Mar. 2011,https://www.drugabuse.gov/publications/drugfacts/comorbidity-ad-diction-other-mental-disorders. Accessed 25 Jun. 2018.

7 Drug Enforcement in the United States: History, Policy, and Trends, LisaN. Sacco, Analyst in Illicit Drugs and Crime Policy, October 2, 2014https://fas.org/sgp/crs/misc/R43749.pdf (internal citation: See state-ments by H. J. Anslinger, Commissioner of Narcotics, Bureau of Nar-cotics, Department of the Treasury and Dr. James C. Munch, beforethe U.S. Congress, House Committee on Ways and Means, Taxation ofMarihuana, 75th Cong., 1st sess., April 27-30, May 4, 1937, HRG-1837-WAM-0002.)

8 Richard Nixon, Special Message to the Congress on Drug Abuse Preven-tion and Control, June 17, 1971.

9 “State of Addiction Policy: The Criminalization of Addiction,” SanaAhmed, https://www.sovhealth.com/editorials/state-of-addiction-policy/state-addiction-policy-criminalization-addiction/.

10 “State of Addiction Policy: The Criminalization of Addiction,” SanaAhmed, https://www.sovhealth.com/editorials/state-of-addiction-policy/state-addiction-policy-criminalization-addiction/.

11 See California Vehicle Code § 23152(c).12 California Vehicle Code § 23152(c); see also California Criminal Jury In-

structions (CalCrim) 2112.13 CalCrim 2112; see also People v. O’Neil, (1965) 62 Cal.2d 748.14 O’Neil, 62 Cal.2d at 752-53. The O’Neil case dealt with an earlier ver-

sion of the driving while addicted statute, California Vehicle Code §23105.

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15 CalCrim 2112; See also California Vehicle Code § 23152(c).16 People v. Duncan, (1967) 255 Cal.App.2d 75, 78 (internal citations and

quotation marks omitted).17 Duncan, 255 Cal.App.2d at 78; see also CalCrim 2112.18 O’Neil, 62 Cal.2d at 753.19 O’Neil, 62 Cal.2d at 753-54.20 Duncan, 255 Cal.App.2d at 78.21 O’Neil, 62 Cal.2d at 754. West Virginia, on the other hand, makes it a

crime for “. . .a habitual user of narcotics or amphetamine or any de-

rivative thereof[]” to drive a vehicle. SeeWest Virginia Code § 17C-5-2.

22 See CalCrim 359 (“[A] defendant may not be convicted of any crimebased on his/her out-of-court statements alone. [The jury] may relyon the defendant’s out-of-court statements to convict him/her only if[they] first conclude that other evidence shows that the charged crimewas committed.”)

23 See CalCrim 2112; if there is evidence a defendant is participating in anapproved treatment program, the court has a sua sponte duty to in-

struct on the defense.

hen a Drug Recognition Expert(DRE) goes through his or hergrueling training regimen, he or sheis taught how to recognize whethera person is under the influence of

one or more categories of drugs. Once theInternational Association of Chiefs of Police(IACP) has certified him or her, he or she puts hisor her knowledge to use to determine whetherdrivers are impaired by drugs. As part of this training, a DRE is also taught torecognize whether a medical issue that mimicsimpairment affects the individual he or she isexamining. The value of determining that someoneis not impaired by drugs, but suffering from amedical condition, sometimes puts a DRE in asituation where the individual examined couldsuffer great harm or die but for the intervention ofthe DRE. In June, at the National Traffic Law Center’sCommercial Driver License course in Los Angeles,one such story was shared. Anthony Marks servedas a DRE with the Los Angeles Police Departmentas an auxiliary officer; his full-time job was inpharmaceutical sales. With his pharmaceutical salesjob, he traveled to many physicians’ offices. Soon,doctors and nurses learned of his drug recognitionexpertise. On a visit to a medical office in

Panorama City, a doctor approached him and askedhim for help. Concerned parents brought their 16-year-old son to the doctor believing their son wasusing drugs. They noticed several changes in hisbehavior, and they had been to the emergencyroom once already. The doctor and his assistantperformed several tests and took blood samples, butnone of the tests indicated drug use. The doctorasked Anthony to perform his 12-step DRE exam.At the end of the evaluation, Anthony told thedoctor and the parents the child was not on drugs.

WRECOGNIZING THE LIFE SAVING POWER OF THE DRUG RECOGNITION EXPERTBy Tom Kimball, Director, National Traffic Law Center

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Based upon Anthony’s assessment, the doctordirected the parents to take the child to theemergency room for a scan of his brain. The next time Anthony visited the doctor’soffice, he learned the rest of the story. The CTscan of the brain indicated the child was sufferingfrom a brain bleed. The 16-year-old was a soccerplayer and hit his head while playing. If the childarrived at the hospital 20 minutes later, he wouldhave died. Several medical doctors missed thediagnosis, but the DRE was able to rule out drugsas the cause of the suspected impairment and,instead, deemed it a medical problem. AnthonyMarks cannot tell the story without the hair onhis arms reacting. This is not the only time a DRE evaluation hasled to life-saving medical action on the part of theDRE officer. Here are four more incidents thatoccurred in 2016:

Florida A DRE from the Indian River Shores PublicSafety Department was called by a local policedepartment to conduct a DRE evaluation on asubject who exhibited a horrific driving pattern,was obviously impaired, but did not have an odorof alcohol on his breath. The DRE began hisevaluation and, during the process, saw signs of amedical problem. The DRE learned the subjectwas struck in the face with a board approximatelytwo weeks prior and was treated in a trauma unitfor a brain bleed. The subject told the DRE thathe was cleared by doctors to return to a normallifestyle. The DRE saw clinical signs and pupilirregularities that led him to determine the subjectwas still suffering from a medical condition andsummoned assistance of medical staff for thesubject. Because the DRE followed the properprotocol, his actions allowed a medically-impairedsubject to get the proper and necessary medicalattention and thwarted a needless criminalprosecution.

Michigan A DRE was dispatched to a vehicle in a ditch.Upon his arrival, the driver was acting normal, buthis speech slurred at times. The driver deniedtaking drugs or using alcohol. The DRE notedduring the HGN test that the driver’s pupils wereslightly unequal and could not track equally. Afterfurther evaluation, the DRE suspected a medicalsituation and convinced the driver to accept anambulance transport to the hospital. It wasdetermined that the driver had suffered a mini-seizure at the scene and later, upon arrival at thehospital, suffered a more serious full seizure. Thedoctor credited the DRE with possibly saving thedriver’s life by recognizing medical signs andsymptoms at the scene.

Wisconsin A DRE with the Brown County Sheriff ’sOffice responded to a local hospital to conduct adrug influence evaluation on a subject arrested forimpaired driving following a crash. It wasdetermined that the suspect ingested marijuanaprior to the crash. During the evaluation, theDRE detected that the suspect’s demeanor andbehavior noticeably changed along with someindicators inconsistent with drug impairment.The DRE stopped the evaluation and summonedthe attention of medical staff. It was later learnedthat the suspect suffered a seizure. The DRE’sability to recognize the onset of a seizure andsummon medical staff to assist with thispotentially life-threatening condition exemplifiedthe importance of having a DRE involved in asuspected drug impaired driving case.

Wyoming A Wyoming Highway Patrol DRE wasdispatched to the Interstate 25 Port of Entry for apossible impaired truck driver. The port employeesstated the driver would not answer any questionsand that his speech was slurred. They also stated he

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nearly hit several vehicles as he pulled into the Portand that he staggered around outside his truck. TheDRE spoke with the driver, who appeared pale anddisoriented. The driver's speech was slurred but hispupils seemed normal. The DRE could not smellalcohol on his breath and noticed his skin was coldand clammy. The DRE checked his pulse, whichwas at 40 beats per minute. The driver was able toanswer questions but seemed to have troublespeaking. Although the driver stated he did notneed one, the DRE called for an ambulance.Within minutes of the ambulance request, thedriver's speech became progressively worse and

eventually got to the point the DRE could notunderstand him. The DRE then noticed the rightside of the driver's face appeared to droop slightlyand requested the ambulance to expedite. Once theambulance arrived on scene, the driver was taken tothe local Regional Medical Center. Life Flight latertook the driver to Denver because he suffered amassive stroke. It is clear the DRE's interventionsaved the man's life.

Expert Karl Citek, MS, OD, PhD, FAAO, was notsurprised by any of these events. When asked aboutwhy DRE’s can discern medical conditions fromimpairment, he indicated: “Most medical conditions that can causeimpairment can readily be distinguished from theeffects of alcohol and/or drug intoxication. Themost common conditions that could affect a personwhile driving, and that an officer would expect toencounter, include heart attack, hypoglycemia(a.k.a. insulin shock) in persons with diabetes,cerebral vascular accident (a.k.a. stroke), andtrauma, either from a motor vehicle crash or otherinjury. None of these nor most other medicalconditions will cause the same types of clues as —

or clues that appear identical to — those caused byintoxication. Intoxication is expected to cause specific andknown changes in physical and physiologicalresponses that are roughly symmetric for the rightand left parts of the body. For example, if aparticular intoxicant is known to cause pupildilation or difficulty on the One-Leg Stand Test,then both pupils will be dilated or test clues willappear when performed on either leg, respectively.In contrast, for example, stroke or trauma canpotentially cause a problem on only one side. If an officer observes an abnormal response

during an evaluation, he/she determines if it isconsistent with intoxication. For example, ifnystagmus is present, does it occur with the headupright or tilted? Does it occur only when lookingto the side rather than straight ahead? And are theeye movements horizontal rather than vertical orrotatory? In each instance, the former condition ismost consistent with intoxication; the latter, whilebeing abnormal and possibly indicative ofimpairment, would not be consistent withintoxication.” The lifesaving skills of DREs have an additionalimpact. No officer ever wants to be the one toarrest an innocent person. No officer wants to bethe one to later learn the person he arrested died ina jail cell because of a medical problem. An officerwho observes behavior inconsistent withintoxication should take advantage of thespecialized training and experience of a DREofficer. There is no greater work on this earth thanto save the life of another. Congratulations to theofficers involved in these five cases. If you know ofsimilar situations, please send them to us forinclusion in future editions of Between the Lines.

No officer ever wants to be the one to arrest an innocent person.

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Foster ing CDL Partnerships on the “Road to Zero”

n May, the American Association of MotorVehicle Administrators (AAMVA), inconjunction with the Federal Motor CarrierSafety Administration (FMCSA), held itsCommercial Driver’s License (CDL)Coordinators/Information Technology (IT)

Meeting in Columbus, Ohio. AAMVA is theorganization that represents the interests of eachstate’s driver’s licensing authority (SDLA), theagency that administers and promulgates motorvehicle regulations. In other words, AAMVA is theagency that represents your departments of motorvehicle, public safety and/or transportation, the

employees of which maintain driver’s licenserecords and administer driver’s license testing. Jeanine Howard, the National Traffic LawCenter’s (NTLC) FMCSA Staff Attorney, and Iattended this three-day meeting of motor vehicleadministrators, motor vehicle IT professionals, andfederal regulators (FMCSA) to discuss howcontinued partnerships among these entities canlead to a decrease in commercial motor vehicle(CMV) fatalities. This meeting focused on AAMVA’s CDLCoordinators and IT Managers. CDLCoordinators are the people in each state’s SDLA

IBy Romana Lavalas, Senior Attorney, National Traffic Law Center

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who are responsible for overseeing theadministration of their state’s CDL licensingprogram. The IT Managers are the peopleresponsible for assuring that the technologyplatforms used to transmit licensing and convictioninformation is up to date. This meeting was anopportunity for state and federal partners to discussthe administration of the FMCSA’s CDL mandatesand to share challenges and achievements in theadministration of their CDL programs. The NTLC was invited to participate in asession entitled, “Partnerships in Assuring CourtCompliance.” This session was designed to highlightthe efforts of the NTLC and other partners’ effortsto combat the practice known as Masking (see 49CFR 384.266), or essentially any effort thatprevents traffic convictions from reaching a CDLholder’s driving record. During this session, I askedthe SDLAs to do four things that are particularlyrelevant to those of you tasked with theenforcement of CDL and CMV-related regulations. First, I suggested that SDLAs should becomeacquainted with their Traffic Safety ResourceProsecutor (TSRP) and/or become moreacquainted with the prosecutors in their states whoroutinely subpoena SDLA employees for traffictrials. These existing relationships serve as a resourcefor the SDLAs to educate traffic-handlingprosecutors about the special rules applicable toCDL holders. It is likely that each SDLA iscontacted by at least one prosecutor in every officeto subpoena SDLA employees to testify in DUI andgeneral traffic cases. These prosecutors are in thebest position to be educated by SDLA personnelabout the consequences of traffic convictions on aCDL holder’s driving record. Second, I encouraged SDLAs to reach out to theNTLC to identify the point during theadjudication process the SDLAs are seeing evidence

of Masking convictions, whether it’s roadside or inthe courtroom with prosecutors and judges. TheNTLC has direct access to the network of TrafficSafety Resource Prosecutors (TSRPs) nationwidewho regularly communicate with state prosecutorsand judges about traffic-safety matters. The NTLCmay be able to assist the SDLA with educatingothers about Masking by reaching out to anindividual state’s TSRP. Third, I reminded the SDLAs that CDL holdersconvicted of felonies using motor vehicles aresubject to disqualification. I asked for their supportto keep these CDL holders off the roads byensuring that these felony convictions, oncetransmitted to the SDLA by the courts orprosecutors themselves, are properly recorded onthe CDL holder’s driving record resulting in thedisqualification of a CDL. Finally, I encouraged SDLAs to invite theNTLC to join them at their states’ Highway Safety,Judicial, Prosecutor and/or Law Enforcementmeetings. The FMCSA attorneys at the NTLC areavailable to speak to these groups about FMCSAregulations. Further, because the NTLC is grant-funded, the NTLC can use grant funding to speakto these groups at no cost to the group making therequest. Ultimately, this session served to emphasize thevital role that prosecutors and judges play in thecomplete and accurate recording of convictions onthe driving records of CDL holders. This includesprosecutors and judges being aware of the federalprohibition on the practices of deferral anddiversion of CDL-related offenses, as well askeeping CDL holders accountable to the highstandards that their skills and training demand. It isonly through cooperation that we will drive downdeaths caused by CMVs on the “Road to Zero.”

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ccasionally, Between the Lines will includea guest author to provide readers withtrial tips and techniques. For this edition,Jim Camp is the featured author. Mr.Camp was a civil trial lawyer inWisconsin from 1982 until he was

elected District Attorney for Green Lake County,Wisconsin, in 1991. He served as the District

Attorney until 2007. In 2007, Mr. Camp moved toTennessee and served as an Assistant DistrictAttorney General and as a Traffic Safety ResourceProsecutor until 2016. In 2016, he becamePresident of Dynamic Messages, LLC, and speaksand trains nationally serving law enforcement andprosecutors. He may be contacted atjim@dynamicmessages.net.

TRIAL TIPS AND TECHNIQUES

OIntroducing ExhibitsBy Jim Camp

Over the years, I have had many opportunitiesto observe young prosecutors in trial advocacyworkshops as well as in actual trial practice. Itis always a delightful and encouragingexperience. From a critical instructor’s point ofview, we are always on the lookout forbehaviors and habits that can be improved.One of the trial techniques most often lacking isthe ability to properly introduce exhibits. Exhibits are obviously important. Theyconstitute tangible proof. Something the jurycan see or hear or touch. Exhibits canconstitute Real Evidence (physical items whichmake up the foundation or physical substanceof a crime), Demonstrative Evidence (used toexplain or illustrate facts to be presented) andDocumentary Evidence (writings or records). The introduction of exhibits seems like one ofthe most basic of all trial practice elements. It isfor this very reason that lawyers tend to takethe procedure for granted. Because we tend totake it for granted, it is beneficial to review thebasics. First, we must determine if the evidence isrelevant pursuant to Federal Rules of Evidence(FRE) 401. Does it tend to make the existence ofany fact that is of consequence to the

determination of the action more probable orless probable than it would be without theevidence? Next, if the exhibit is relevant evidence, is itsprobative value substantially outweighed by thedanger of unfair prejudice, confusion of theissues, or misleading the jury or byconsiderations of undue delay, waste of time, orneedless presentation of cumulative evidence?If it passes muster under FRE 403 and it ishelpful to our case, we must prepare for theintroduction of the exhibit. All potential exhibits should be assembledand organized prior to trial. Preparing a list ofexhibits helps achieve this goal since itindicates which witness will be used tointroduce each exhibit. Exhibits should be pre-marked for identification, preferably in theorder in which they are intended to beintroduced, and copies should be made for thecourt and defense counsel. This exerciseforces a prosecutor to pre-plan the introductionof the evidence. During trial, it also allows thelitigator to keep track of which exhibits havebeen introduced, received, and denied. Exhibits can only be introduced after a set ofprocedural steps is taken. Failure to followthese steps may give the impression theprosecutor lacks ability and experience. Doingit the right way every time creates an

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impression of skill and professionalism. The following example relates to theintroduction of a document prepared by a lawenforcement witness. Remember that differenttypes of exhibits will require different types offoundational questions under the Rules ofEvidence, but the procedural framework isbasically the same:

1. Have the exhibit marked if you have not hadit marked prior to the start of the trial. Takethe exhibit to the clerk and ask to have itmarked for identification.

2. After it is marked and returned to you, showthe exhibit to defense counsel. (A copy of theexhibit should have been provided to himpreviously. If not, one should be handed tohim at this time.) State for the record:

“Your Honor, may the record reflect I amshowing defense counsel what has beenmarked State’s Exhibit # ___ foridentification. May the record also reflecta copy of that exhibit has been provided tothe defense.”

3. After defense counsel has reviewed andreturned the exhibit, ask the Court if you mayapproach the witness. In many courtroomsfailure to ask permission may lead to anembarrassing admonition.

4.When the Judge grants permission toapproach, show the witness the exhibit andstate:

“Trooper McConnell, I’m handing you adocument marked States Exhibit #__ foridentification.”

5. After the witness has had time to review theexhibit, ask questions laying a foundation:

“Can you identify this document?”

“Please tell the jury what it is.”

“Have you seen this document before?”

“When was the first time you saw it?”

“Where were you at that time?”

“Do you know who prepared thisdocument?”

6.Move for admission of the exhibit intoevidence by stating:

“Your Honor, I move that State’s Exhibit#__ for identification be admitted inevidence as State’s Exhibit #___.”

7.When the time is right, ask permission topublish the exhibit to the jury:

“Your Honor, may I show State’s Exhibit#__ to the Jury?”

8.When the time is right, ask to publish theexhibit:

“Your Honor, may we show State’sExhibit#__ to the Jury?”

This procedure should be followed everytime you intend to introduce an exhibit. While itmay seem cumbersome, it is the correct andprofessional procedure for the task, avoidsconfusion on the record, and protects therecord on appeal. It also creates a bit ofsuspense for the jury, which heightens theimpact of the exhibit. Do it right the first time and every time. Asthey say, the devil is in the detail.

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STATE SUPREME COURT DECISIONS

Reading Between the Lines

n the field of traffic safety, the same issues tendto arise in trials across the country. Issuesdetermined in two states, whether they areadjacent or distant, are sometimes resolved inthe same way, opposite ways, and oftensomewhere in between. To keep prosecutors,law enforcement officers, judges, and other

traffic safety partners informed, here are a fewnotable decisions of various State SupremeCourts.

DISTRICT OF COLUMBIADickerson v. District of Columbia, 2018 D.C. App.LEXIS 135 (2018).

Facts & Procedural Posture: While on patrol, an officer observed theDefendant’s vehicle “cross over and straddle thedividing white lane hash marks, make an abruptstop at a red light inside the crosswalk, travelslowly through a yellow light, and cross over thesolid yellow line into oncoming traffic.” Id. at. 2.After the officer “activated his emergency lights,[the Defendant] traveled for another half block,scraping his passenger side tires against the curb ashe pulled over.” Id. Upon approaching theDefendant’s driver side door, the officer saw thatthe Defendant’s “eyes were bloodshot and watery.”Id. The Defendant admitted to drinking, and theofficer testified, “he could smell a strong odor ofalcohol coming from [the Defendant’s] breath andperson.” Id. Following some investigativequestioning, the officer tried to have theDefendant complete field sobriety tests. Id. at 3.Prior to conducting the tests, the Defendant toldthe officer “he had a pinched nerve in his backand that he was taking Xanax, Gabapentin, andAmbien.” Id. While administering the horizontal

gaze nystagmus (“HGN”), the officer identifiedsix clues. Id. at 2. The Defendant failed tocomplete the one-leg stand test and the walk-and-turn test as required. Id. at 3. The officersubsequently arrested the Defendant, believing hewas under the influence of alcohol. Id. at 4. At trialthe Defendant attempted to qualify a toxicologistin the areas of toxicology, pharmacology, and fieldsobriety tests. Id. The trial court declined to acceptthe toxicologist as an expert in the administrationand interpretation of field sobriety tests anddeclined to allow the toxicologist to opine thatthe Defendant’s pinched nerve influenced his fieldsobriety test performance. Id. at 5. The Defendantwas found guilty and appealed. Id.

Issue #1: Did the trial court erroneously find the defense expertnot qualified to testify in the area of field sobriety tests? Analysis: The Court found no abuse of discretion inexcluding the defense expert’s testimony on theadministration and interpretation of the HGNtest. Id. at 12. The Court relied on recordtestimony from the expert that, “he studied theNHTSA manual and decided how to perform[the HGN tests] and how to interpret them basedon [the manual].” Id. at 9. The Court reasoned,“[w]hile ‘the relevant knowledge for eligibility totestify as an expert may be based on experience,’we agree that that experience must be based onmore than one’s own interpretation of thestandard NHTSA manual used in administeringHGN tests.” Id. Further, the Court reasoned that the defensefailed to establish a reliable basis for the expert’stheory regarding the effects of the Defendant’s

I

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STATE SUPREME COURT DECISIONS

prescription medications on his field sobriety testperformance. Id. at 10. Moreover, the Court stated,“[the Defendant] did not proffer any blood tests,medical records, or testimony from which hisexpert could have shown a reliable basis forbelieving that [the Defendant’s] prescriptionmedications, rather than his being under theinfluence of alcohol or drugs, caused thenystagmus.” Id. at. 11.

Issue #2: Did the trial court erroneously limit the defenseexpert’s testimony regarding the effect of the Defendant’slower back pinched nerve on his ability to perform twobalance field sobriety tests? Analysis: The Court found that the trial court did noterr in limiting the expert’s testimony. Id. at 14. TheCourt reasoned, the trial court properly qualifiedthe defense expert in the areas of toxicology andpharmacology, based on his education, trainingand experience. Id. at 12. However, “[a]lthough[he] completed anatomy, physiology, andpathology courses in the 1960s…, those coursesalone do not qualify him as someone whopossesses the skills, training, and experiencenecessary to diagnose a lower back pinched nerveand opine as to its effect on one’s ability toperform balance field sobriety tests.” Id.

GEORGIAWalsh v. State, 2018 Ga. LEXIS 138 (2018).

Facts & Procedural Posture: A law enforcement officer responded to thereport of a person sleeping in a vehicle while in atraffic lane. Id. at 1. The officer observed theDefendant in the driver’s seat with his head down,his foot on the brake pedal, his hand on thegearshift and the car in drive and running. Id. at 1.The officer smelled an odor of alcohol. Id. TheDefendant awoke after multiple attempts to wake

him. Id. The officer observed the Defendant’s eyesto be bloodshot, glassy, and extremely watery. Id. at2. The Defendant performed field sobriety tests,including the horizontal gaze nystagmus(“HGN”) test. Id. The officer conducted theHGN test while the Defendant was wearingeyeglasses. Id. However, the officer testified thatthe proper administration of the HGN test is tohave the individual remove his/her eyeglasses. Id.“The officer further testified that the manner inwhich this test was conducted was a ‘substantialdeviation’ from his training regarding properHGN procedures; he also testified that thisdeviation from the correct protocol wasnonetheless ‘substantial compliance with theguidelines [that could] still yield informativeresults,’ did not cause a difference in the testresults, and that he was still able to make a fairobservation of the six validated clues of the HGNtest.” Id. The Defendant filed a motion to suppress theresults of the HGN test. Id. at 3. The trial courtgranted the motion to suppress. Id.The Court ofAppeals reversed the trial court’s decision. Id.

Issue: Whether the Court of Appeals erred in reversing thetrial court’s grant of the Defendant’s motion to suppressthe results of the HGN?

Analysis: The Court found that the Court of Appealserred in reversing the trial court’s decision. Id. at14. The Court reasoned, “it is plain that the trialcourt found a conflict in the officer’s testimonythat, allowing a subject to wear glasses is a‘substantial deviation’ from the proper proceduresfor conducting the test, and that doing so wasnonetheless ‘substantial compliance’ with theguidelines such that the test was conducted in anacceptable manner.” Id. at 13. Moreover, the Courtstated, “[t]he proper administration of [theDefendant’s] HGN test was part of the State’s

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foundational burden, and under the evidencepresented during the hearing on the motion tosuppress, the trial court did not clearly err ingranting the motion.” Id. at 14.

NEVADAState v. Sample, 414 P.3d 814, 2018 Nev. LEXIS 24,134 Nev. Adv. Rep. 23 (2018).

Facts & Procedural Posture: While on night patrol duty, an officer observeda vehicle “cross over fog lines and double lines,accelerate rapidly, cross into a southbound turnlane, and veer back into the northbound travellane.” Id. at 815. The officer subsequently activatedhis overhead lights and siren. Id. However, thevehicle did not stop; the driver continued to driveand pulled into the driveway of a home, whichwas later determined to be the Defendant’sresidence. Id. The officer followed the vehicle intothe driveway and approached the driver side door.Id. Upon approaching the driver’s side of thevehicle, the officer saw that the Defendant had“red, watery eyes and the smell of alcohol comingfrom inside the vehicle.” Id. The officer thenobserved the Defendant drink from a plastic bottlewith clear liquid inside, despite the officer’sdemands to stop. Id. The Defendant admitted todrinking alcohol, his “speech was slow andslurred,” and he was “unsteady on his feet.” Id. at816. The Defendant was handcuffed and placed inthe back of the patrol car after not complyingwith demands to remain at the front of theofficer’s vehicle. Id. While handcuffed in the backof the patrol vehicle, the officer administered aPBT on the Defendant. Id. The officer placed theDefendant under arrest and obtained a telephonicsearch warrant because the Defendant refused toconsent to blood testing. Id. The officer told thejudge that the Defendant consented to the PBTand results of the PBT were included in theaffidavit of probable cause to obtain thetelephonic search warrant. Id. The officer obtained

the warrant and blood samples were taken fromthe Defendant. Id. The Defendant filed a motion to suppress thePBT results, as well as the blood test results as“fruit of the poisonous tree.” Id. The district courtgranted the Defendant’s motion to suppress. Id. Issue #1: Did the district court err in finding that the PBTresults were obtained in violation of the Defendant’sFourth Amendment rights? Analysis: The Court concluded “the district courtproperly suppressed the PBT evidence as anunconstitutional search.” Id. at 817. The Courtreasoned, “the PBT was not administered pursuantto a warrant or an exception to the warrantrequirement.” Id. On appeal, the State argued thatthe PBT was not a violation of the FourthAmendment because it was a search incident toarrest. Id. However, the Court rejected thisargument because it was made for the first timeon appeal. Id.

Issue #2: Did the district court erroneously invalidate thetelephonic search warrant used to obtain the evidentiaryblood draw? Analysis: The Court found the suppression of the bloodtest results to be an error. Id. The Court reasoned,“…even though the telephonic search warrantcontained a false statement by [the officer]regarding the improperly obtained PBT, it was,nevertheless, supported by other facts showingprobable cause.” Id. Moreover, “withoutconsidering the PBT, the search warrant was stillsupported by probable cause.” Id. at 818.

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FLORIDA—Vin Petty

TSRP Basic DUI Trial Advocacy Week July 16-20, 2018LEO Basic DUI Trial Preparation August 8, 2018LEO Basic DUI Trial Preparation September 19, 2018LEO Basic DUI Trial Preparation October 3, 2018

ILLINOIS—Jennifer Cifaldi

Ignition Interlock August 23, 2018Impaired Driving Conference October 15-16, 2018

KENTUCKY—Tom Lockridge

Kentucky Prosecutors Conference, Traffic Safety Track August 29-31, 2018 MICHIGAN—Kinga Canike and Ken Stecker

Cops in Court July 19, 2018Nuts and Bolts August 8, 2018Cops in Court September 13, 2018 MINNESOTA—Bill Lemons

DUI and Traffic Safety Webinar August 2018 (Date TBD)

NEBRASKA—Ed Vierk, WYOMING—Ashley Schluck, andCOLORADO—Jennifer R. KnudsenTri-State Training on Emerging Issues in DUI-D July 17, 2018

NORTH CAROLINA—Sarah GarnerSummer Meeting July 17-18, 2018

TENNESSEE—Terry Wood and Linda Walls

Prosecuting the Drugged Driver August 8-9, 2018

WASHINGTON—Moses Garcia, Courtney Popp, Miriam Norman,and Katie McNulty

Regional Law Enforcement and Prosecutor Impaired Driving August 3, 2018Regional Law Enforcement and Prosecutor Impaired Driving September 1, 2018

WEST VIRGINIA— Nicole Cofer-Fleming

Prosecuting the Drugged Driver September 2018 (Date TBD)

Mark Your

for these Training Dates

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Traf f ic Safety Resource Prosecutor NEWS

n Idaho in May, Jared Olson facilitated a "Prosecuting the Alcohol Impaired

Driver" course training 40 prosecutors and 4 police officers. The outstanding

faculty included Chris Daniels, Jen Knudsen, and Miriam Norman (the TSRPs

from Indiana, Colorado, and Washington, respectively) as well as local law

enforcement instructors.

The WashingtonTSRPs (Moses Garcia, Courtney Popp, Miriam Norman, and Katie

McNulty) recently concluded the state’s three-day Traffic Safety Conference in

Richland, WA. The conference included five different tracks, with attendance by over

600. Additionally, Moses Garcia presented a “Litigation Issues in Draeger case” session

at the annual Washington District & Municipal Judges Conference at Lake Chelan. He

also taught at the Training Institute for the Alcohol Ignition Interlock Program

Administrators (AIIPA) in St. Louis, MO.

In early June, Vin Petty held the Annual 2-day “Advanced DUI Seminar” in Lake

Mary, Florida. In attendance were 53 prosecutors. This seminar covered numerousadvanced topics, including: a case law update, Daubert Issues, HGN & DRE Issues as

taught by a DRE Instructor, Implied Consent Issues, and tactics for the Cross

Examination of Expert Witnesses. Additionally, later in June, he held a 1-day “Basic

DUI Trial Preparation” Course for Law Enforcement in Atlantic Beach, Florida. In

attendance were 18 law enforcement officers. This seminar covered numerous topics

from all aspects of a DUI Investigations, including DUI Case Law/Charging, Traffic

Stop Issues, Implied Consent Issues, Miranda & DUI Stop Issues, and Report Writing

techniques.

I