9th Annual Lone Star DWI Seminar

T e x a s C r i m i n a l D e f e n s e L a w y e r ’s A s s o c i a t i o n

9TH ANNUAL

COURSE DIRECTORS: Deandra Grant • Amber Vazquez

JANUARY 21, 2022 austin, Texas

9TH ANNUAL LONE STAR DWI BACK IN THE FIGHT SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

January 21, 2022 Austin, TX | Hilton Austin Airport Hotel, 9515 Hotel Drive, Austin, TX 78719 Deandra Grant and Amber Vazquez 6.5 Ethics: 0.0

Friday, January 21, 2022 Time

CLE

Daily CLE Hours: 6.5 Topic

Speaker

8:00 am

Registration and Continental Breakfast

8:30 am

Opening Remarks

Deandra Grant

8:45 am

.75

Suppression in DWI Cases

Amber Vazquez

9:30 am

.75

Case Law Update & Use of Priors

Mark Lassiter

10:15 am

Break

10:30 am

.75

Blood Evidence Challenges

Nnamdi Ekeh

11:15 am

1.00

SFST’s: Latest Updates & Studies

Dr. Lance Platt

12:15 pm

Lunch Provided

1:30 pm

1.00

Marijuana & Driving

Dr. Rachna Patel

2:30 pm

.75

Drugged Driving: Current Research

Deandra Grant

3:15 pm

Break

3:30 pm

.75

Gas Chromatography Primer

Josh Lee

4:15 pm

.75

Intox 9000: Trial Strategies

Mark Thiessen

5:00 pm

Ethics: 0

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

9TH Annual Lone Star DWI Back in the Fight Table of Contents

Speaker

Topic January 21, 2022

Mark Lassiter Dr. Lance Platt Dr. Rachna Patel Deandra Grant Josh Lee Mark Thiessen

Case Law Update & Use of Priors SFST’s: Latest Updates & Studies Marijuana & Driving Drugged Driving: Current Research Gas Chromatography Primer Intox 9000: Trial Strategies

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

9th Annual Lone Star DWI Back in the Fight January 21, 2022

Topic: Case Law Update & Use of Priors Speaker:

Mark Lassiter 3300 Oak Lawn Ave, Ste 700 Dallas, TX 75219-3933 (214) 845-7007 Phone (214) 845-7006 Fax mark@lomtl.com email www.lomtl.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

XXIII. Priors/Enhancements A. PROVING DEFENDANT IS PERSON NAMED IN JUDGMENT 1. I.D. MUST BE BASED ON MORE THAN “SAME NAME” o Strehl v. State, 486 S.W. 3d 110, (Tex.App.-Texarkana 2016)  This was a felony DWI trial where the State’s only evidence tying the Defendant on trial to one of the two jurisdictional priors was the fact that the name of the Defendant was the same name that was on the prior The State argued that Defendant’s name was unique (Joseph Leo Strejil III). The Court of Appeals sad that same name is not enough and modified the conviction to reflect a misdemeanor conviction of DWI-Rep. o White v. State, 634 S.W.2d 81 (Tex.App.-Austin 1982, no pet.).

2. BOOK-IN CARD MUST BE TIED TO JUDGMENT AND SENTENCE o Zimmer v. State, 989 S.W.2d 48 (Tex.App.-San Antonio 1998, pet. ref’d).  Where State proved identity of defendant by using book-in card which it offered in conjunction with a Judgment and Sentence and the judge admitted the Judgment and Sentence but not the card, and there was no evidence tying the card to the Judgment and Sentence, the proof was insufficient as to that prior. (It appears there may not have been a sufficient predicate laid for admission of the slip, i.e. business record, and implies no tie between the slip and the Judgment and Sentence [i.e. cause number on slip tied to J & S] because there was no mention of same in the opinion.)

3. PROOF OF ID POSSIBLE WITHOUT PRINTS OR PHOTOS o Billington v. State, No. 08-12-00144-CR, 2014 WL 669555 (Tex.App.-EI Paso 2014, no pet.).  In this case the fingerprints on the J & S were in such poor quality they could not be used so Defendant was tied to two pen packets with other evidence including a third useable pen packet. The details from the pen packets that connected him included same DPS number, name and date of birth and tattoos. A certified DL record had the same offense and conviction dates. Under totality of circumstances, there was found to be sufficient evidence to tie Defendant to Pen Packet and prove his priors. o Richardson v. State, No. 05-03-01104-CR, 2004 WL 292662 (Tex.App.-Dallas 2004, no pet.) (not designated for publication).

There were no prints on the certified trial docket sheets, charging instruments, or the judgment and probation order, nor were there any photographs used to prove the defendant was the same person named in the two priors. The defendant’s address, gender, race, date of birth, and drivers’ license number were on those documents; and they matched the information gained from defendant at the time of the arrest. This was found to be sufficient proof that the defendant was the same person named in the prior.

4. COMPUTER PRINTOUT AS PROOF OF PRIOR CONVICTION o Ex Parte Warren, 353 S.W.3d 490 (Tex.Crim.App. 2011).Flowers v. State, 220 S.W.3d 919 (Tex.Crim.App.2007).  Held that a computer printout offered to prove prior conviction contained sufficient information and indicia of reliability to constitute the functional equivalent of a judgment and sentence tied to this particular defendant. In this case, the printout states the defendant’s name, the offense charged, and date of commission; that he was found guilty of and sentenced for the offense; and gives the specifics of the sentence and the amount of time served. Further, the printout is properly authenticated by the Dallas County Clerk in accordance with evidentiary rule 902(4). The other document offered was a certified copy of defendant’s DL record.

5. CERTIFIED DOCUMENTS OFFERED TO PROVE PRIORS NEED NOT BE ORIGINALS o Haas v. State, No. 14-15-00445-CR, 2016 WL 1165797 (Tex.App.-Houston (14th Dist.) 2016)  In this case, the State offered copies of certified documents to prove up a prior DWI conviction. The Defendant objected that copies are not sufficient and the documents need to be originals. He also objected that documentation offered was insufficient to tie him to the prior in the absence of fingerprints. The Court held that a certified document number of each page of the document along with a seal on the last page is all that is needed to authenticate the document. As to the other documents, the Judgment of prior conviction had the name and cause number, an order removing the interlock device which had Defendant’s name, birth date, and drivers license number, and a bail bond in that same cause number listed the Defendant’s name, birth date, and drivers license number were sufficient to prove prior for enhancement purposes.

6. PEN PACK SUFFICIENT EVEN WHEN NON-CORRESPONDING INFORMATION INCLUDED 

o

Alberty v. State, 528 S.W.3d 702 (Tex.App. – Texarkana 2017).  In this case, the State offered a pen pack that included a fingerprint card, certified copies of judgments of conviction, and a mug shot.

The dates shown on the fingerprint cards, as well as the statutes of offenses written on the fingerprint cards, were not associated with the judgments of convictions contained in the pen pack. The Defendant objected to the fingerprint cards and the fingerprint comparison evidence. In addition to the pen packs, the trial court heard evidence from several witnesses that connected the Defendant to the prior convictions. The court overruled the Defendant’s objection stating that it went to “weight not admissibility.” The Court of Appeals upheld the conviction and stated that the State must prove two elements beyond a reasonable doubt to establish that a defendant has been convicted of a prior offense: 1. a prior conviction exits, and 2. the defendant is linked to that conviction.  No specific document or mode of proof is required to prove these two elements. The totality of the circumstances determines whether the State met its burden of proof. The Texas Court of Criminal Appeals has recognized “evidence of a certified copy of a final judgment and sentence may be a preferred and convenient means” to prove a prior conviction.

B. PRIORS FOR WHICH DEFERRED ADJUDICATION GIVEN Brown v. State, 716 S.W.2d 939 (Tex.Crim.App. 1986). [reversed on other grounds].

Order of DFAJ is admissible in punishment phase of trial regardless of whether probation has been completed. (Applies in general, not specific to DWI prosecution).

C. USE OF DPS RECORDS TO PROVE PRIORS 1. FOR PURPOSE OF TYING DEFENDANT TO J & S o Wilmer v. State, 463 S.W.3d 194 (Tex.App.-Amarillo 2015, no pet) o Clement v. State, 461 S.W.3d 274 (Tex.App.-Eastland 2015, aff’d otter grounds), 2016 WL 4938246 (Tex.Crim.App 2016) o Jordan v. State, No. 02-12-00301-CR, 2014 WL 2922316 (Tex.App.-Fort Worth 2014, no pet). o Gibson v. State, 952 S.W.2d 569 (Tex.App.-Fort Worth 1997, no pet.). o Williams v. State, 946 S.W.2d 886 (Tex.App.-Waco 1997, no pet.).

Spaulding v. State, 896 S.W.2d 587 (Tex.App.-Houston [1st Dist.] 1995, no pet.). o Abbring v. State, 882 S.W.2d 914 (Tex.App.-Fort Worth 1994, no pet.). o Lopez v. State, 805 S.W.2d 882 (Tex.App.-Corpus Christi 1991, no pet.).  Use of DPS records to tie defendant to priors is proper.

2. DPS RECORDS ALONE WITHOUT J & S – NOT ENOUGH o Gentile v. State, 848 S.W.2d 359 (Tex.App.-Austin 1993, no pet.).  Use of DPS records alone without judgment and sentence is not sufficient to prove enhanced priors.

3. DPS RECORDS NOT EXCLUDABLE UNDER COLE o Tanner v. State, 875 S.W.2d 8 (Tex.App.-Houston [1st Dist.] 1994, pet. ref’d).  Driving records prepared by DPS do not fall under the exclusion of 803(8) (b) described in Cole v. State. o

D. FAXED COPY OF JUDGMENT & SENTENCE ADMISSIBLE Englund v. State, 907 S.W.2d 937 (Tex.App.-Houston [1st Dist.] 1995) affirmed 946 S.W.2d 64 (Tex.Crim.App. 1997).

Court held that requirements of Rules 1001 (3), 1001 (4), and 901 (a) & (b) (7) of the Texas Rules of Criminal Evidence were met when faxed judgment and sentence were offered in lieu of originals.

E. ENHANCEMENT OF FELONY DWI WITH NON‐DWI PRIORS Jones v. State, 796 S.W.2d 183 (Tex.Crim.App. 1990).

Phifer v. State, 787 S.W.2d 395 (Tex.Crim.App. 1990).

Seaton v. State, 718 S.W.2d 870 (Tex.App.-Austin 1986, no pet.).

Rawlings v. State, 602 S.W.2d 268 (Tex.Crim.App. 1980).

Felony DWI can be enhanced with non-DWI prior convictions. (Point being that if felony convictions other than those of felony DWI are used, a person convicted of felony DWI can be a “habitual” criminal.)

F. ERROR IN ENHANCEMENT PARAGRAPH NOT FATAL 1. WRONG DATE ALLEGED

Valenti v. State, 49 S.W.3d 594 (Tex.App.-Fort Worth 2001, no pet.). o Zimmerlee v. State, 777 S.W.2d 791 (Tex.App.-Beaumont 1989, no pet.).  Variance between dates in DWI enhancements as alleged and as proved not fatal absent showing that defendant was surprised, mislead, or prejudiced.

2. WRONG CASE NUMBER ALLEGED o Human v. State, 749 S.W.2d 832 (Tex.Crim.App. 1988).  In the absence of a showing that the defendant was surprised or prejudiced by discrepancy, the fact that cause number in DWI conviction alleged in felony indictment differed from that proven at trial was not fatal. In this case, it was alleged that prior had cause #F80-1197-MN when proof showed it was cause #F80-11997N. o Cole v. State, 611 S.W.2d 79 (Tex.Crim.App. 1981).  No fatal variance in enhancement paragraph that alleged prior was in cause #87954 when it was later proven that it was in fact under cause #87594.

3. WRONG STATE ALLEGED o Plessinger v. State, 536 S.W.2d 380 (Tex.Crim.App. 1976).  Where the enhancement alleged the prior was out of Texas when it was really out of Arizona, proof is sufficient in absence of a showing that the defendant was misled, prejudiced, or surprised.

4. WRONG CHARGING INSTRUMENT ALLEGED o Hall v. State, 619 S.W.2d 156 (Tex.Crim.App. 1980).  Where enhancement alleged that prior arose out of “indictment” when it in fact arose out of an “information” was held not to be a fatal variance. o

G. APPEAL OF REVOKED DWI DOESN’T BAR ITS USE FOR ENHANCEMENT State v. Camacho, 827 S.W.2d 443 (Tex.App.-San Antonio 1992, no pet.).

DWI revocation being appealed doesn’t bar its use to enhance DWI to felony.

H. FELONY DWI 1. ORDER OF ENHANCEMENTS o Streff v. State, 890 S.W.2d 815 (Tex.App.-Eastland 1994, pet. ref’d). o Peck v. State, 753 S.W.2d 811 (Tex.App.-Austin 1988, pet. ref’d).

Prior DWI’s convictions used to enhance case to felony need not be sequential.

UNDERLYING DWI PRIORS ARE ADMISSIBLE IN GUILTY/INNOCENCE STAGE o Barfield v. State, 63 S.W.3d 446 (Tex.Crim.App. 2001). o Maibauer v. State, 968 S.W.2d 502 (Tex.App.-Waco 1998, pet. ref’d). o Will v. State, 794 S.W.2d 948 (Tex.App.-Houston [1st Dist.] 1990, pet. ref’d). o Addington v. State, 730 S.W.2d 788, 789-90 (Tex.App.-Texarkana, pet. ref’d). o Freeman v. State, 733 S.W.2d 662, 663-64 (Tex.App.-Dallas 1987, pet. ref’d). o State v. Wheeler, 790 S.W.2d 415 (Tex.App.-Amarillo 1990, no pet.).  Defendant’s prior DWI convictions were jurisdictional elements of the offense of felony DWI. Thus, those convictions were properly part of state’s proof at guilt stage of trial.

DEFENDANT’S AGREEMENT TO STIPULATE TO PRIORS DOES PRECLUDE THEIR BEING ADMITTED o Hernandez v. State, 109 S.W.3d 491 (Tex.Crim.App. 2003). o Smith v. State, 12 S.W.3d 149 (Tex.App.-EI Paso 2000, pet. ref’d). o Tamez v. State, 11 S.W.3d 198 (Tex.Crim.App.2000).  If a defendant stipulates to two prior convictions, the State may read the indictment at the beginning of the trial mentioning the two prior convictions but may not give any evidence of them during trial. Also, if stipulated that there are two prior DWIs, evidence of more than two DWIs may not be mentioned during trial. o Robles v. State, 85 S.W.3d 211 (Tex.Crim.App. 2002).  Where the defendant agrees to stipulate to priors, the State can’t offer those priors into evidence. The Court points out that details contained in the priors can be prejudicial to the defendant.

STIPULATION SHOULD BE ADMITTED INTO EVIDENCE o Hollen v. State, 117 S.W.3d 798 (Tex.Crim.App. 2003). o Hernandez v. State, 109 S.W.3d 491 (Tex.Crim.App. 2003). o State v. McGuffey, 69 S.W.3d 654 (Tex.App.-Tyler 2002, no pet.). o Orona v. State, 52 S.W.3d 242 (Tex.App.-EI Paso 2001, no pet.).  The proper procedure, under Tamez, is for the stipulation to be offered into evidence and published to the jury.

TWO PRIORS THAT ARISE OUT OF A SINGLE CRIMINAL ACT MAY BE USED TO ENHANCE TO A FELONY o Gibson v. State, 995 S.W.2d 693 (Tex.Crim.App. 1999).  Two previous convictions for manslaughter that were based on two deaths arising out of a single act of driving while intoxicated could be used to enhance a new charge of driving while intoxicated up to a felony charge of driving while intoxicated. 

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6. JUDGE HAS NO AUTHORITY TO FIND PRIOR CONVICTION TRUE WHEN ISSUE NOT SUBMITTED TO JURY o Martin v. State, 84 S.W.3d 267 (Tex.App.-Beaumont 2002, pet ref’d).  In this case the defendant was tried for Intoxication Manslaughter, and the jury was given a lesser included instruction for DWI. The jury found the defendant guilty of the lesser charge, and the trial court found the defendant had two prior DWIs and found him guilty of Felony DWI. The Court reversed the conviction, holding that there is no support for the argument that the trial court was permitted to assume the role of fact-finder on the issue of the two prior convictions. The Court held that the prior convictions are elements and must be included in the jury charge and found to be true before a jury may find a defendant guilty of the offense of Felony DWI. 7. STIPULATING TO PRIORS WAIVES 10 YEAR OBJECTION o Gordon v. State, 161 S.W.3d 188 (Tex.App.-Texarkana 2005, no pet.). o Smith v. State, 158 S.W.3d 463 (Tex.Crim.App.2005).  This was a case where the defendant agreed to stipulate to two prior convictions in a felony DWI trial. He later challenged the conviction on appeal on the basis that one of the priors was too remote under the current rule for calculating such priors as has been articulated in the Getts case. The Court of Criminal Appeals upheld the conviction and the use of the remote prior stating that the defendant waived appellate challenge to remoteness of the “prior conviction used as predicate conviction for felony sentencing by confessing such prior conviction by stipulation.”

8. JURY INSTRUCTION MUST ADDRESS THE STIPULATION o Martin v. State, 200 S.W.3d 635, (Tex.Crim. App. 2006).  This is a felony DWI case that focused on alleged error in the jury instructions regarding failure to address the defendant’s stipulation to his priors. This is a great opinion for those who have any doubts about the rules regarding the acceptance of such stipulations and how the priors may be addressed during the trial. In part, the Court reaffirmed that: “when a defendant offers to stipulate to jurisdictional priors in a felony DWI case, the State may (but is not required) to read the entire indictment, including the two jurisdictional allegations (but only those two) in arraigning the defendant in the presence of the jury”; “both the State and the defense may voir dire the jury concerning the range of punishment for both a felony and misdemeanor DWI”; “the jury need not be informed of the particulars of the prior convictions in reading the indictment, voir dire, opening

or closing arguments or in the jury charge itself, a defendant’s stipulation to the two prior DWIs, being in the nature of a judicial admission, has the legal effect of removing the jurisdictional element from contention”; “a defendant may not offer evidence or argument in opposition to his stipulation”; “during the trial, the jury may be informed of the stipulation and any written stipulation may be offered into evidence before the jury, but the evidence is sufficient to support a defendant’s conviction even if the stipulation is not given or read to the jury”; “in a bench trial, the guilt and punishment stages are not bifurcated, so the State is not required to offer the stipulation during the initial portion of the hearing, even if the proceeding is improperly bifurcated”.  The new requirements addressed by the Court are that: 1. The jury charge must include some reference to the jurisdictional element of two prior DWI convictions in a felony DWI trial; 2. The jury charge must include some reference to the defendant’s stipulation and its legal effect of establishing the jurisdictional element; 3. Any error in failing to include in the jury charge some reference to the jurisdictional element and the stipulation is analyzed under Almanza.  In this case, the charge failed to do 1 through 3, but Court found error to be harmless.

9. DEFENDANT WHO STIPULATES TO PRIORS ON CONDITION THEY NOT BE MENTIONED WAIVES ABILITY TO COMPLAIN THEY WERE NOT PROVED o Bryant v. State, 187 S.W.3d 397 (Tex.Crim.App.2005).  In this case, the defendant stipulated on the condition that the State not mention or offer evidence of the priors. He then complained on appeal that the priors, elements in the case, were not proven. The Court held that by stipulating to two prior convictions for DWI, the defendant waived any right to contest the absence of proof on stipulated element in prosecution for felony DWI; he could not argue that the State failed to prove its case on an element to which he had stipulated.

10. PROPER TO USE FEDERAL DWI CONVICTIONS FOR ENHANCEMENT o Bell v. State, 201 S.W.3d 708 (Tex.Crim.App. 2006).  Defendant’s two prior convictions in federal court, under federal Assimilative Crimes Act (ACA), for driving while intoxicated (DWI) were properly used to enhance defendant’s state conviction of DWI

to third degree felony; federal convictions under ACA were convictions for offenses under Texas law.

11. DATES OF PRIOR DWl’S ARE NOT ELEMENTSOF FELONY DWI o Tietz v. State, 256 S.W.3d 377 (Tex.App.-San Antonio 2008, pet. ref’d).  The defendant tried to attack the use of the underlying DWI’s for enhancement by arguing that the enhancement law that was in effect at the time the priors were committed (ten year rule), as opposed to the enhancement law in effect at the time of the primary offense (no ten year rule), should be applied. This argument was rejected and the court reiterates that the exact dates of prior convictions used for enhancement are not elements of the primary DWI offense.  See also:  Vanderhorst v. State, 52 S.W.3d 237 (Tex.App.-Eastland 2001, no pet.).  In re State ex rel. Hilbig, 985 S.W.2d 189 (Tex.App.-San Antonio 1998, no pet.).

12. JURY INSTRUCTION NEED NOT REFER TO PARTICULARS OF THOSE PRIORS o Freeman v. State, 413 S.W.3d 198 (Tex.App.-Houston [14th Dist] 2013). Habeas corpus granted by Ex Parte Freeman, No. WR-76787-02, 2014 WL 1871649 (Tex.Crim.App. 2014)  The jury charge in this case correctly stated the law applicable to the case by requiring the jury to find beyond a reasonable doubt that appellant “was twice convicted of an offense related to the operating of a motor vehicle while intoxicated”. The charge stated that the phrase “offenses relating to operating a motor vehicle while intoxicated” included DWI offenses. No greater specificity is required as nothing in the law requires that the jury be informed of the particulars of the prior convictions in the jury charge itself.

13. UNDERLYING DWl’S NEED NOT OCCUR BEFORE REP AND HABITUAL COUNTS o Medrano v. State, No. 02-12-00450-CR, 2013 WL 6198841 (Tex.App.-Fort Worth 2013, pdr ref’d).  The convictions alleged and relied upon to raise a DWI to a felony offense need not have occurred before the offenses or convictions used to enhance Defendant’s sentence in rep and habitual counts.

14. IF UNDERLYING PRIOR FOUND INVALID ON APPEAL, REMEDY IS TO MODIFY JUDGMENT TO REFLECT MISDEMEANOR CONVICTION o Gaddy v. State, 433 S.W.3d 128 (Tex.App.-Fort Worth 2014, pdr ref’d).  At the Court of Appeals level after finding one of the necessary underlying DWI priors was invalid, the Court of Appeals rendered a judgment of acquittal. This was appealed and reversed by the Court

of Criminal Appeals which held that they should reconsider in light of its holding in Bowen v. State which stated that a proper remedy other than acquittal would be to remand case to Trial Court for modification. On remand the Court of Appeals found that in convicting the Defendant of Felony DWI, the jury must have also found sufficient evidence to convict of misdemeanor DWI and therefore remanded the case back to Trial Court for punishment hearing on the misdemeanor DWI charge.

I. LIMITS ON USE OF DWI PRIORS FOR ENHANCEMENT 1. PRIOR FELONY DWI MAY BE USED TO ENHANCE FELONY UNDER PENAL CODE SECTION 12.42 o Maibauer v. State, 968 S.W.2d 502 (Tex.App.-Waco 1998, pet. ref’d).  The State can use a prior felony DWI conviction under Penal Code Section 12.42 for enhancement purposes, provided that the prior conviction is not also used to elevate the alleged offense to a felony.

2. SAME PRIOR CANNOT BE USED TWICE o Ex parte Clay, No. WR-WR-87,763-01 o Rodriguez v. State, 31 S.W.3d 359 (Tex.App.-San Antonio 2000, pet. ref’d). o Phillips v. State, 964 S.W.2d 735 (Tex.App.-Waco 1998, pet. granted in part) 992 S.W.2d 491 (Tex.Crim.App. 1999) 4 S.W.3d 122 (Tex.App.-Waco 1999). o Rivera v. State, 957 S.W.2d 636 (Tex.App.-Corpus Christi 1997, pet. ref’d).  The same prior DWI convictions may not be used both to enhance the underlying DWI charge and to prove habitual felony offender status.

3. WHAT IS NOT “USING A PRIOR TWICE” o Perez v. State, 124 S.W.3d 214 (Tex.App.-Fort Worth 2002, no pet.) o Orona v. State, 52 S.W.3d 242 (Tex.App.-EI Paso 2001, no pet.) o Carroll v. State, 51 S.W.3d 797 (Tex.App.-Houston [1st Dist.] 2001, pet. ref’d).  A misdemeanor DWI conviction was used to elevate the DWI jurisdictionally to a Felony and the Felony DWI was enhanced with other Felony DWIs to make the defendant a habitual offender. One of the Felony DWIs relied upon the same misdemeanor conviction described above. Defendant argued that constituted using the same prior twice. This argument was rejected by the Court which held that the State did not use the misdemeanor offense twice because it did not use it for punishment enhancement purposes but rather only jurisdictional purposes. It based this holding on the fact that no

independent proof of the misdemeanor’s existence is required under 12.42(d) of the Texas Penal Code.

4. PROBATED DWI CONVICTIONS UNDER 6701L MAY BE USED TO ENHANCE WITH DWI OFFENSES o Ex Parte Serrato, 3 S.W.3d 41 (Tex.Crim.App. 1999).  The Court points out that the relevant penalty enhancement provision [49.09(b)] provides: when it is shown on the trial of an offense under Section 49.04 that the person has previously been convicted two times of an offense relating to the “operating of a motor vehicle while intoxicated,” the offense is a felony of the third degree. 49.09(c) specifically defines the term “offense relating to the operating of a motor vehicle” to include an offense under Article 6701/ -1 Revised Statutes, as that law existed before September 1, 1994. 67011 stated: “For purposes of this article, a conviction for an offense that occurs on or after January 1, 1984, is a final conviction, whether or not the sentence for the conviction is probated.” So, by incorporating the prior DWI statute, as that law existed before enactment of the new statute, the Legislature declared its intent to continue the status quo, which included permitting probated DWI convictions for enhancement if the offense occurred after January 1, 1984.

5. USE OF OUT OF STATE PRIORS WITH DIFFERENT DEFINITIONS OF INTOXICATION/IMPAIRMENT o State v. Christenson, No. 05-10-00940-CR, 2011 WL 2176656 (Tex.App.Dallas 2011, pet. ref’d).  The State used a Colorado prior to enhance the Defendant’s DWI charge. The Colorado charge was called DWAI (driving while ability impaired). Defendant argued this was improper because the DWAI did not require “intoxication” but rather a lesser degree of “impairment”. The DWAI statute said impairment occurs when the consumption of alcohol “affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically […] to exercise clear judgment, sufficient control, or due care in the safe operation of a vehicle.” The Defendant pointed out that Colorado had a separate statute prohibiting DUI (driving under the influence) which further required the person’s impairment render the person “substantially incapable” of safe operation of a vehicle. In rejecting this argument, the Court held that Colorado DWAI met the requirement of Texas Penal Code Section 49.09(b) (2) and observed that the fact that Colorado

recognizes different degrees of impairment through its DUI and DWAI laws does not mean a person “impaired” for the purposes of the DWAI statute is not “intoxicated” for the purpose of the Texas Penal Code. The Court found the definition of impairment under the DWAI statute to be almost identical to the definition of “Intoxication” under Texas law. o Johnson v. State, No. 04-13-00509-CR, 2014 WL 3747256 (Tex.App.-San Antonio 2014, no pet).  New York prior was used to enhance Defendant to felony DWI. The Defendant’s motion to quash the indictment for use of the New York prior was denied and he appealed. The Defendant argued that the New York statute under which the State was trying to enhance his charge was not a law that prohibits their operation of a motor vehicle while intoxicated. The New York law was called DWAI (driving while ability impaired) which is committed when a person’s ability to operate a motor vehicle is impaired by consumption of alcohol. There was a separate statute which said DWI is committed if a person operates a motor vehicle in an intoxicated condition. Under the DWAI statute, a person is “impaired” if the consumption of alcohol has actually impaired, to any extent, the physical and mental abilities which one is expected to possess in order to operate a motor vehicle as a reasonable and prudent driver. The issue before the Court was therefore whether the definition of “impairment” under the New York law meets the definition of “intoxication” under Texas law. The Court of Appeals found that it did.

6. AN OUT-OF-STATE CONVICTION MUST BE A FINAL CONVICTION UNDER TEXAS LAW o Ex parte Pue, No. WR-85, 447-01 (Tex.Crim.App. 2018)  The trial court used a prior conviction from California to enhance the Defendant’s sentence under CCP 12.42. However, the Court of Criminal Appeals said this was error because the Defendant was on probation for the California offense and it was not a final conviction under Texas Law. Texas law requires that a defendant be “finally convicted” of the alleged prior offense before punishment can be enhanced. It is well established that a conviction (in Texas) is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted. Furthermore, a successfully served probation is not available for enhancement purposes.

However, a probated sentence can turn into a final conviction if probation is revoked.

7. PUNISHMENT — STACKING SENTENCES o Mireles v. State, 444 S.W.3d 679 (Tex.App.-Houston [14th Dist.] 2014, pet ref’d).  A Defendant pled guilty to a jury on two cases charging him with Intoxication Manslaughter and Intoxication Assault and the jury assessed his punishment as four years in prison on the first charge and seven years probation on the second charge. The Judge stacked the sentences so that his probated sentence would not begin until he had served his prison sentence. The Defense challenged the Judge’s stacking decision. The opinion discusses a potential conflict between the application of 42.04 CCP and 3.03 of the Texas Penal Code but ultimately finds the Judge had the authority to order the stacked sentences.

J. OPEN CONTAINER 1. SUFFICIENT PROOF OF o Walters v. State, 757 S.W.2d 41 (Tex.App.-Houston [14th Dist.] 1988, no pet.).  Half full can of beer found lodged between windshield and dash immediately in front of steering wheel, defendant alone in car, no evidence that can smelled or tasted of alcohol = sufficient. o Troff v. State, 882 S.W.2d 905 (Tex.App.-Houston [1st Dist.] 1994, pet. ref’d).  Not required to prove defendant held beer while driving.

2. EFFECT OF IMPROPER READING OF OPEN CONTAINER ENHANCEMENT IN GUILT/lNNOCENCE PHASE o

Doneburg v. State, 44 S.W.3d 651 (Tex.App.-Fort Worth 2001, pet. ref’d.).  The State erroneously read the open container enhancement to the jury when it arraigned the defendant at the beginning of trial. That this was a mistake is conceded by all. The Defense requested that the “open container” paragraph be included as an element that the State had to prove in the guilt innocence jury instructions. This request was denied by the trial court and the Court affirmed the conviction explaining that when the State alleges evidentiary matters that are not necessary to be proved under Article 21.03 of the CCP, the allegations are considered surplusage.

K. PROPER TO ALLEGE DATE PROBATION GRANTED AS OPPOSED TO DATE PROBATION REVOKED

Ogaz v. State, No. 2-03-419-CR, 2005 WL 2898139 (Tex.App.-Fort Worth 2005, no pet.) (not designated for publication).

Defendant argued that the indictments should have alleged the date on which his probation in the prior cases was revoked and should have relied on those judgments revoking probation, not the older judgments of conviction. Even though his probation was revoked, the underlying convictions were final for enhancement purposes, so the indictment referred to the proper dates and judgments.

L. DEFECT IN WORDING OF JUDGMENT/PROBATION ORDER = BAD PRIOR 1. YES o

Mosqueda v. State, 936 S.W.2d 714 (Tex.App.-Fort Worth 1996, no pet.).  This was a felony DWI case where there was a defect in the paperwork supporting one of the underlying misdemeanor DWI convictions. The order of probation contained the language “it is therefore considered, ordered, and adjudged, that the verdict and finding of guilty herein shall not be final. that no judgment be rendered thereon, and that the defendant be, and is hereby placed on probation”. If you see the underlined wording on the probation order of your DWI prior, it violates 42.01 of the Texas Code of Criminal Procedure in that it does not show that the defendant was “adjudged to be guilty” as is required. The result in this case was that the defendant was ordered acquitted.  NOTE: IF YOU SPOT THIS PROBLEM EARLY YOU CAN PROBABLY SAVE THE PRIOR BY SEEKING A NUNC PRO TUNG ORDER FROM THE JUDGE OF THE COURT OUT OF WHICH THE PRIOR WAS ISSUED.

2. NO Gonzales v. State, 309 S.W.3d 48 (Tex.Crim.App. 2010). o Williamson v. State, 46 S.W.3d 463 (Tex.App.-Dallas 2001, no pet.). o Rizo v. State, 963 S.W.2d 137 (Tex.App.-Eastland 1998, no pet.)

3. NOT A PROBLEM FOR UNDERLYING PRIORS o State v. Vasguez, 140 S.W.3d 758 (Tex.App.-Houston [14th Dist.] 2004, no pet.). o State v. Duke, 59 S.W.3d 789 (Tex.App.-Fort Worth 2001, pet. ref’d).  This was a State’s appeal of an order setting aside an indictment for Felony DWI. The State relied upon two Felony DWI priors to raise the new charge to a felony. The defense attacked the felony o

enhancement pointing out that priors that had been relied upon to raise those cases to a felony were faulty. The specific problem with the underlying priors, both out of Dallas, was that the judgments contained language stating the priors “shall not be final.” So in a “domino” theory, the defendant argues that if the underlying priors were infirm, then the resulting felony convictions used in the actual enhancement are infirm as well. The Court of Appeals, even granting that the underlying priors were not final, distinguishes this case from Mosqueda by holding that even if the underlying Dallas priors are void, there is no reason to say that the felony DWI’s could not be reformed to reflect misdemeanor convictions for DWI and the status of the underlying priors being misdemeanors or felonies is immaterial. The trial Court’s order setting aside the indictment was reversed.

4. UNSIGNED JUDGMENT CAN BE USED TO PROVE ENHANCEMENT o Gallardo v. State, No. 07-09-0064-CR, 2010 WL 99011 (Tex.App.-Amarillo 2010, no pet.) (not designated for publication).  The validity of a judgment of conviction and the ability to use it to enhance a DWI to a felony is not affected by the failure of the trial judge to sign the judgment. Court cited, Mulder v. State, 707 S.W.2d 908 (Tex.Crim.App. 1986).

M. ERRONEOUS DISMISSAL OF PROBATION BY THE COURT WON’T AFFECTFINALITY OF THE CONVICTION Chughtai v. State, No. 05-15-01275-CR, 2016 WL 4010833 (Tex. App. – Dallas 2016) Anderson v. State, 110 S.W.3d 98 (Tex.App.-Dallas 2003, reh. overruled).

Jordy v. State, 969 S.W.2d 528 (Tex.App.-Fort Worth 1998, no pet.).

Mahaffey v. State, 937 S.W.2d 51 (Tex.App.-Houston [1st Dist], 1996, no pet.).

The problem here was not with the face of the judgment but rather with a subsequent order by the sentencing court which issued an order that discharged the defendant from probation, set aside the verdict, dismissed the complaint, and released him from all penalties and disabilities resulting from commission of the offense. The defense argued such an order should prevent the State from offering said prior into evidence as a final conviction. The Court of Appeals rejects that argument pointing out that said order was purportedly made under a section of the code that was at the time of the order

repealed. (The section referred to is now Article 42. 12 Section 20 of the CCP which then, as now, does not apply to DWI cases.) Since the order was issued without authority to do so, its order is void and has no effect on the finality of the defendant’s conviction.

N. MANDATORY JAIL TIME AS CONDITION OF PROBATION‐REPEATOFFENDERS State v. Lucero, 979 S.W.2d 400 (Tex.App.-Amarillo 1998, no pet.).

Trial court erred when it probated defendant convicted of DWI who was proven to be a repeat offender [49.09(a)] by not ordering a minimum of three days in jail as a condition of probation.

O. IF YOU ALLEGE MORE PRIOR DWl’S THAN YOU NEED, MUST YOU PROVE THEM ALL? 1. YES o

Jimenez v. State, 981 S.W.2d 393 (Tex.App.-San Antonio 1998, pet.. ref’d).  In this felony DWI case, the State alleged three prior DWI’s in the charging instrument and then the court charged the jury that if it found any two of three to have been proved, it was sufficient. Court held that it was error in that the state. by alleging three priors had increased its burden of proof and thus had to prove all three priors. Error was found to be harmless in this case.  NOTE: ANOTHER CONTROVERSIAL OPINION THAT SEEMS TO DEFY LOGIC AND PRECEDENT.

2. NO Biederman v. State, 724 S.W.2d 436 (Tex.App.-Eastland 1987, pet. ref’d). o Read v. State, 955 S.W.2d 435 (Tex.App.-Fort Worth 1997, pet. ref’d). o Wesley v. State, 997 S.W.2d 874 (Tex.App.-Waco 1999, no pet.). o Washington v. State, 350 S.W.2d 924 (Tex.Crim.App. 1961).  State may allege as many prior DWI’s as it wants and still need not prove any more than two of them. o

P. PROOF THAT PRIOR DWI IS WITHIN 10 YEARS OF OFFENSE DATE 1. ONLY ONE OF THE TWO PRIORS MUST BE WITHIN 10 YEARS (FOR DWI OFFENSES PRIOR TO 9-1-01)

Smith v. State, 1 S.W.3d 261 (Tex.App.-Texarkana 1999, pet ref’d).  Held that State need only prove that one of the defendant’s two prior DWI convictions was for an offense committed within 10 years of new offense date. The Court further admits it made a mistake in the dicta of its opinion in Renshaw v. State, 981 S.W.2d 464 (Tex.App. – Texarkana 1998). “The State correctly points out that dicta in the Renshaw case is in error in stating that the State would have to prove two prior DWI convictions within the same 10 year period.”

2. PROOF OF 10 YEARS NOT NECESSARY o Summers v. State, 172 S.W.3d 102 (Tex.App.-Texarkana 2005, no pet.) o St. Clair v. State, 101 S.W.3d 737 (Tex.App.-Houston [1st Dist.] 2003, pet. ref’d). o Weaver v. State, 87 S.W.3d 557 (Tex.Crim.App. 2002).  Priors listed in enhancement paragraphs were too remote (no intervening conviction to bring it under 10 year rule was alleged).

Issue raised is whether the State must present evidence of intervening conviction to the jury? Is 49.09 (e) an element of the offense of Felony DWI? Court of Appeals said it is. Court of Criminal Appeals in this opinion says it is not an element and the State does not need to offer evidence of that conviction to the jury, but rather just needs to submit the proof to the trial court which it did in this case. o Bower v. State, 77 S.W.3d 514 (Tex.App.-Houston [1st Dist.] 2002, pet ref’d).  This was a felony DWI trial where the Defendant stipulated to his prior DWI’s and pied true to the enhancements. The enhancements did not contain the offense dates of the priors and no evidence of the offense dates was presented by the State during the guilt/innocence phase of the trial. The defendant argued this was a failure of proof and cited Renshaw and Smith. This Court finds that the reasoning of those two opinions is wrong in that the accusation of two priors is all that is needed to give the Court jurisdiction. It distinguishes 12.42(d) from 49.09(b). It also points out that if the State’s priors were stale, the proper remedy would have been to move to quash the indictment, object to the admission of the priors, or ask for a lesser charge of misdemeanor DWI. While we wait for the Court of Criminal Appeals to address this issue, it would seem prudent to go ahead and mention at least one of the offense dates in the body of our stipulations in felony DWI cases.

3. THE 10 YEAR RULE FOR OFFENSES FROM 9-01-01 TO 8-31-05 o Getts v. State, 155 S.W.3d 153 (Tex.Crim.App.2005). o

This case tells us how to apply the 2001 amendment to the DWI statute to the question of how to calculate in prior DWI convictions to bump the charge up to a felony under 49.09 of the Texas Penal Code. The Court holds that prior DWI convictions are available for enhancement so long as they are within ten years of each other, calculating that time period by using the closest possible dates, whether that be the offense date, date of sentencing, or date of release from sentence, including probation or parole. For example, if a defendant has a 2005 DWI arrest and his record includes two priors from 1987 and 1993, this case should be filed as a felony DWI because the two prior DWI offenses are within ten years of each other-even though more than ten years’ time has lapsed since the priors and the current offense.

4. THE 10 YEAR RULE’S DEMISE DOES NOT VIOLATE EX POST FACTO LAW o Effective September 1, 2005, the legislature repealed subsections (d) and (e) of Section 49.09 of the Texas Penal Code. This means that there are no age limitations on the use of DWI priors to enhance to Class A or Felony DWIs. o Crocker v. State, 260 S.W.3d 589 (Tex.App.-Tyler 2008, no pet.).  This appeal was based on the argument that the statute that did away with the ten year rule was a violation of the ex post facto law. In rejecting that argument that court held that the previous version of the law that restricted the use of priors was “not an explicit guarantee that those convictions could not be used in the future, but only a restriction on what prior convictions could be used to enhance an offense at that time”. As a result, changing the statute did not increase defendant’s punishment for his prior conviction and did not violate his right of protection against ex post facto laws. 

Q. JUDGE MAY NOT TERMINATE OR SET ASIDE DWI PROBATION EARLY In re State ex rel. Hilbig, 985 S.W.2d 189 (Tex.App.-San Antonio, 1998, no pet.).

Judge had no authority to terminate and set aside felony DWI probations early—writ of prohibition granted by the Court of Appeals.

R. INTRODUCED JUDGMENT AND SENTENCE PRESUMED PROPER

1. NO WAIVER OF RIGHT TO JURY TRIAL o Battle v. State, 989 S.W.2d 840 (Tex.App.-Texarkana 1999, no pet.).  Where State introduced copies of judgments which were silent as to waiver of a jury trial, the Court held that the priors were properly admitted as the “regularity of the conviction was presumed unless […] [the defendant] affirmatively showed that he did not waive his right to a jury trial”.

2. IN THE ABSENCE OF JUVENILE TRANSFER ORDER o Johnson v. State, 725 S.W.2d 245 (Tex.Crim.App. 1987).  State offered a proper judgment and sentence and defendant challenged the lack of documentation of a proper transfer from juvenile giving district court jurisdiction. The defendant fails to offer any evidence that there was no transfer. The Court spells out the rule as regards priors as follows: “Once the State properly introduced a judgment and sentence and identifies appellant with them, we must presume regularity in the judgments. The burden then shifts to the defendant, who must make an affirmative showing of any defect in the judgment, whether that be to show no waiver of indictment or no transfer order.”

S. MISDEMEANOR PRIORS ARE VALID WHEN DEFENDANT WAIVES JURYWITHOUT AN ATTORNEY Redfearn v. State, 26 S.W.3d 729 (Tex.App.-Fort Worth 2000, no pet.).

Defendant tried to quash enhancement paragraphs because he had not been appointed an attorney prior to waiving the right to a jury. Court points out that under 1.13(c) of Texas Code of Criminal Procedure that right applies only to felony pleas.

See also: Moore v. State, 916 S.W. 2d 696 (Tex.App.-Beaumont 1996, no pet.).

T. DWI SENTENCE MUST INCLUDE JAIL TIME State v. Cooley, 401 S.W.3d 748 (Tex.App.-Houston [14th Dist.] 2013, no pet.).

This case involves a Defendant who pied open to the Court on a DWI second (Class A) where the Judge assessed punishment at $2,000 fine with no jail time. The State objected to this illegal sentence. The Court holds that a conviction for a second DWI must be assessed a minimum of 30 days confinement in accordance with 49.09(a) of the Texas Penal Code and vacates the sentence and remands the case for re-sentencing.

State v. Magee, 29 S.W.3d 639 (Tex.App.-Houston [1st Dist.] 2000, pet ref’d).

Judgment reversed where judge sentenced Defendant charged with first offense DWI to pay a $250 fine with no confinement in jail. Statute clearly requires a minimum 72 hours confinement in jail.

U. ILLEGAL SENTENCE ENFORCEABLE IF DEFENDANT ASKED FOR IT ORAGREED TO IT Mapes v. State, 187 S.W.3d 655 (Tex.App.-Houston [14th Dist.] 2006, pet. ref’d).

Since defendant had enjoyed the benefit of a lesser sentence under his prior conviction pursuant to plea agreement, he was estopped from asserting on appeal that because one of his prior driving while intoxicated (DWI) convictions was void for imposition of a sentence that was less than the minimum sentence required under the statutory range, the Trial Court was precluded from finding defendant guilty of current felony DWI charges.

Ex Parte Shoe, 137 S.W.3d 100 (Tex.App.-Fort Worth 2004), petition for discretionary review granted (Nov 10, 2004), petition for discretionary review dismissed (Oct 10, 2007).

Though the defendant’s plea bargain which sentenced him to jail but did not assess any fine was illegal, he could not later complain about a sentence that he requested, accepted the benefit from when he entered in the plea agreement.

V. EXPUNCTION WILL NOT ALWAYS RENDER UNDERLYING FACTS OF CASEINADMISSIBLE IN PUNISHMENT PHASE Doty v. State, No. 03-03-00668-CR, 2005 WL 1240697 (Tex.App.-Austin May 26, 2005) (mem.op., Not designated for publication), pet. dism’d, improvidently granted, No. PD1159-05, 2007 WL 841112 (Tex.Crim.App.2007) (not designated for publication).

In the punishment phase of an Intoxication Manslaughter case, the evidence of Defendant’s bad driving, appearance, admission of drinking, and result of FSTs was held to be admissible with the fact that the Defendant was arrested was held to be inadmissible. This was the case even though the DWI case in question resulted in an acquittal and the case was expunged. The officer said his testimony was based on his memory and not on the records.

W. FELONY DWI CAN BE THE UNDERLYING FELONY IN A “FELONY MURDER” CHARGE Alami v. State, 333 S.W.3d 881 (Tex.App.-Fort Worth 2011, reh. overruled).

Felony DWI can serve as the underlying felony in a felony-murder prosecution.

Jones v. State, No. 14-06-00879-CR, 2008 WL 2579897 (Tex.App.-Houston [14 Dist.] 2008, pet. filed) (not designated for publication).

In upholding this felony murder conviction, the court rejected all of the defendant’s points. The Court found that the underlying DWI was properly considered as a felony, that there was no need to allege a culpable mental state, and that felony murder and intoxication manslaughter were not in pari materia.

Mendoza v. State, No. 08-04-00369-CR, 2006 WL 2328508 (Tex.App.-EI Paso, 2006, pet. ref’d) (not designated for publication).

In affirming this felony murder conviction, the Court held that since felony DWI is not a lesser included offense of manslaughter, felony DWI may be the underlying felony for the offense of felony murder. It further held that when felony DWI is the underlying felony, the State is not required to prove a culpable mental state as felony DWI requires no such proof.

Strickland v. State, 193 S.W.3d 662 (Tex.App.-Fort Worth 2006, pet. ref’d).

This case involved an offender who in the course of committing a felony DWI drove the wrong way down a highway and crashed into an oncoming vehicle, killing the front seat passenger. The defense argued that the proper charge was “intoxication manslaughter” and that the State was barred from proceeding by the doctrine of “pari materia.” In rejecting that argument, the Court of Appeals found that the felony murder statute and intoxication manslaughter required different elements of proof Penalties for felony murder and intoxication manslaughter were different; although both statutes served general purpose of imposing criminal responsibility for death and preventing homicide, their objectives were not so closely related as to justify interpreting statutes together, and statutes were not enacted with common purpose.

Lomax v. State, 233 S.W.3d 302 (Tex.Crim.App.2007), habeas relief denied, 2008 WL 5085653 (Tex.App.-Houston [14th Dist.] 2008, pet. ref’d).

This case involved an offender who in the course of committing felony DWI was speeding, weaving in and out of traffic, tail-gating and engaging in aggressive driving which resulted in a crash and a death. The defense raised a number of arguments against the state’s decision to charge the defendant with felony murder. The issues raised were: the indictment failed to allege a mental state, that felony driving while intoxicated merges with felony murder, insufficient evidence he committed an “act clearly dangerous to human life,”—all of which were rejected by the Court of Criminal Appeals.

Hollin v. State, 227 S.W.3d 117 (Tex.App.-Houston [1st Dist.] 2006, pet. ref’d).

This case involved a charge of felony murder where the underlying felony was a felony DWI. The felony murder and intoxication manslaughter statutes were not in pari materia, and accordingly, defendant’s conduct, namely killing someone with his vehicle while he was driving under the influence, was not exclusively governed by the offense of intoxication manslaughter, and therefore it was within State’s discretion to charge defendant with felony murder, penalties for felony murder and intoxication manslaughter were different, the two statutes were not contained in the same legislative acts, intoxication manslaughter and felony murder did not require same elements of proof, and the statutes were not intended to achieve same purpose.

X. DWI W/CHILD CAN BE THE UNDERLYING FELONY IN A FELONY MURDER CHARGE Bigon v. State, 252 S.W.3d 360 (Tex.Crim.App.2008).

The defendant was convicted of felony murder, intoxication manslaughter and manslaughter. The Court dismissed the intoxication manslaughter and manslaughter as it found they were the same as the felony murder for double jeopardy purposes. The Court rejects the argument that the charge could not stand because the State failed to allege or prove a mental state. It further rejected the argument that the act clearly dangerous was not done in furtherance of the underlying felony of DWI with Child. Court of Criminal Appeals affirmed.

Y. INVOLUNTARY MANSLAUGHTER PRIOR MAY NOT BE USED TO ENHANCE A DWI TO A FELONY Ex Parte Roemer, 215 S.W.3d 887 (Tex.Crim.App. 2007).

Defendant’s prior conviction for involuntary manslaughter which was an “offense relating to the operating of a motor vehicle while intoxicated,” could be used to enhance his offense of driving while intoxicated (DWI) from a Class B misdemeanor to a Class A misdemeanor, but could not, by itself, be used to enhance his DWI offense to a felony; to raise DWI to a felony. The statute required either a prior conviction for intoxication manslaughter, not involuntary manslaughter as was used in this case. Louviere v. State, abrogated by this opinion.

Z. IN DWI SECOND TRIAL PRIOR NOT ADMISSIBLE IN GUILT INNOCENCE PHASE OF CASE Oliva v, State, No. PD-0398-17, 2018 Tex. Crim. App. LEXIS 139 The Court of Criminal Appeals reversed the decision in Oliva (see below). The existence of a prior conviction in a DWI second case is a punishment issue. This opinion ends the split of authority as to when the jury hears about the prior offense.

Oliva v. State, 525 S.W.3d 286 (Tex. App. – Houston [14th District, 2017] This case involved a DWI charged as a second offense, class A misdemeanor. The Court reversed and remanded the conviction to the trial court to reform the sentence to reflect a class B misdemeanor DWI offense because the State failed to present proof that the defendant had been previously convicted of a DWI during the guilt-innocent phase. In this case, the State presented evidence of the prior DWI during the punishment phase.

That was not sufficient. The prior offense is an element of the class A offense.

Wood v. State, 260 S.W.3d 146 (Tex.App.-Houston (1st Dist) 2008) This case involved an allegation of ineffective assistance of counsel in a DWI Misdemeanor-Rep case because he failed to object to introduction of evidence about the alleged prior. The Court of Appeals reversed the case and in doing so confirmed that the prior in a DWI Misdemeanor-Rep case is not admissible until the punishment phase of the case.

Texas Criminal Defense Lawyers Association

9TH Annual Lone Star DWI Back in the Fight January 21, 2022

Topic: SFST’s: Latest Updates & Studies Speaker:

Dr. Lance Platt 4343 Carter Creek Pkwy Ste 120 Bryan, TX 77802-4455 (979) 846-3950 Phone (979) 846-3974 Fax lance@impaireddrivingexpert.com email www.impaireddrivingexpert.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

1/3/2022

SFSTs Latest Updates and Studies Lance A. Platt, Ph.D.

NHTSA Standardized Field Sobriety Tests • There are three SFSTs, namely Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand.

Based on a series of controlled laboratory studies, scientifically validated clues of alcohol impairment have been identified for each of these three tests. They are the only Standardized Field Sobriety Tests for which validated clues have been identified.

• DWI Detection and Standardized Field Sobriety Testing student manual Revised 02/2018

Porath-Waller • 2014. An examination of the validity of the Standardized Field Sobriety Test in detecting drug impairment using data from the drug evaluation and classification program • Traffic Injury Prevention

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Porath-Waller • Subject’s performance on these tests has been validated to discriminate among subjects with BAC levels at .08 percent or higher • The ability of the SFSTs to determine impairment induced by drugs other than alcohol is unknown • Several “studies” have been evaluated as to whether SFST performance can discriminate between those who are under the influence of cannabis and those who are not

National Academy of Sciences • Alcohol tends to possess an affinity for opioid receptors located in the brain stem while cannabis binds to cannabinoid receptors which are located in the basal ganglia, cerebral cortex and cerebellum • National Academy of Sciences, Institute of Medicine, 1999 Marijuana and medicine: Assessing the Science Base

National Academy of Sciences • These studies have failed to validate subject’s performance on SFSTs as predictors of cannabis induced impairment • Cannabinoids and alcohol are different • Alcohol is a CNS Depressant and cannabinoids are not • They possess different receptor systems found in separate regions of the brain and body

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National Academy of Sciences • The two substances also tend to result in noticeably different manifestations or behavior both physically and mentally

Shinar and Schectman • 2005. Drug identification performance on the basis of observable signs and symptoms. Double Blind • Accident Analysis and Prevention

Shinar and Schectman • Evaluated the ability of trained police officers to detect drug impairment and to identify the type of drug based on observed symptoms and psychophysical measurement of performance • Based on the subject’s observable performance on the HGN, W&T and OLS tests, officers falsely identified 57 % of the time, subjects to be under the influence of drugs • The officers correctly identified cannabis impairment in 31% of the cannabis impaired subjects

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Papafotiu • 2005. An evaluation of the sensitivity of the Standardized field sobriety Tests to detect impairment due to marijuana intoxication.

• Psychopharmacology

Papafotiou • OLS, W&T and HGN tests are “moderately” correlated with cannabis inhalation • Other studies have not replicated these findings • Researchers scored “other” signs such as head jerk movements • High amount of false positives leading to the conclusion that it is possible that a number of people may perform poorly on SFSTs despite not having consumed drugs

Downey • 2012. Detecting impairment associated with cannabis with and without alcohol on the Standardized Field Sobriety Tests. Double Blind study • Psychopharmacology

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Downey • Subjects overall SFST performance was far more likely to influenced by alcohol consumption than by cannabis inhalation • When THC was consumed with alcohol, the percentage of individuals classified as impaired more than doubled compared with when THC was consumed alone • The current results highlight the limited ability of the SFSTs to identify drug consumption

Bosker • 2012. A placebo controlled study to assess Standardized Field Sobriety Tests performance during alcohol and cannabis intoxication in heavy users. Double Blind • Psychopharmacology

Bosker • Assessed the effects of smoking cannabis on SFST performance • Investigators efforts to validate SFST for subjects under the influence of cannabis was largely unsuccessful • Researchers reported that cannabis ingestion was associated with an increase in the percentage of subjects displaying impairment on the OLS compared to the baseline

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Bosker • Subjects identifiable impairment on the HGN test following cannabis use did not reach statistical significance • Subject’s performance on the W&T did not discriminate between control and experimental conditions • Authors concluded that the overall score on SFST did not discriminate between THC and baseline

Bosker • 2012. Medicinal THC (dronabinol oral THC) impairs on the road driving performance of occasional and heavy cannabis users but is not detected in Standardized Field Sobriety Tests • Addiction

Bosker • Field Sobriety Tests were not sufficiently sensitive to accurately identify subjects following their ingestion of doses of oral synthetic THC • Post dosing performance was assessed on the HGN, W&T and OLS • The analysis of SFST did not reveal any significant effects of dronabinol or cannabis use history • Absence of any observable impairment in SFST appears to indicate that these tests are not sensitive to the impairing effects of THC

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Bosker • The present results demonstrate that currents SFSTs is insufficiently sensitive to detect THC induced driving impairment following oral administration of dronabinol (oral THC)

Commonwealth of Massachusetts v.

Gerhardt (2017) • When asked to decide on the validity of the field sobriety test evaluations for the purpose of identifying subjects who may be under the influence of marijuana, justices for the Massachusetts Supreme Court in 2017 ruled

Commonwealth of Massachusetts v.

Gerhardt (2017) • The tests are not reliable for this purpose • There is a lack of scientific evidence and consensus as to the validity of the field sobriety evaluations for determining whether a subject is under the influence of cannabis • There is going to be disagreement among scientists, however, as to whether the FSTs are indicative of marijuana impairment • In recent years, studies have produced mixed results

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Commonwealth of Massachusetts v.

Gerhardt (2017) • We are not persuaded that the FSTs can be treated as scientific tests establishing impairment as a result of marijuana consumption • As a result, the court ruled that a police officer may not suggest on direct examination that an individuals performance on an FST established that the individual was under the influence of marijuana • Likewise an officer may not testify that a defendant passed or failed any FST, as this language improperly implied that the FST is a definitive test of marijuana use or impairment

NHTSA

• 2017. Marijuana Impaired Driving A Report To Congress • NHTSA DOT HS 182 440

NHTSA • The report describes the absorption, distribution and elimination of Delta 9 THC in the body • It contrasts this process with absorption, distribution and elimination of alcohol in the body, as they are a very different process • The poor correlation of THC concentrations in the blood with impairment is discussed along with the implication that setting a per se level is not meaningful

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NHTSA • Recommendations • Effective and efficient methods for training law enforcement personnel, including drug recognition experts, to detect or measure the level of impairment of a motor vehicle operator who is under the influence of marijuana by the use of technology or otherwise • If feasible, an impairment standard for driving under the influence of marijuana • Methodologies for increased data collection regarding the prevalence and effects of marijuana impaired driving

NHTSA • The pharmacokinetics (absorption, distribution and elimination) and pharmacodynamics (how a drug effects the physiological process and behaviors) for alcohol and marijuana differ • ETOH is a relatively simple drug whose behavioral and cognitive effects are well documented • Marijuana is very different • Few studies have examined the relationship between THC blood levels and degrees of impairment

NHTSA • In contrast with alcohol, someone can show little or no impairment at a THC level at which someone else may show a greater degree of impairment • Current knowledge about the effects of marijuana on driving is insufficient to allow specification of a simple measure of driving impairment outside of controlled conditions • There are currently no evidence based methods to detect marijuana impaired driving

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NHTSA • Currently, there is no impairment standard for drivers under the influence of marijuana • Delta 9 THC does not correlate well with impairment • By an hour after smoking peak THC levels have declined 80-90% • Available research does not support the development of such a psychomotor, behavioral or cognitive test that would be practical and feasible for law enforcement use at this time

NHTSA • It is not possible to predict whether there might be a unique combination of cues that could be used by law enforcement to detect marijuana impaired driving with a high degree of accuracy • Such a method would need to have an extremely low false positive rate to be useable by law enforcement

MJ Per Se • A number of states have set a THC limit in their laws indicating that a suspect’s THC concentration is above that level (typically 5 ng/ml of blood), then the suspect is to be considered impaired • This per se level appears to have been based on something other than scientific evidence • Some recent studies demonstrate that such per se limits are not evidence based

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Field Sobriety Tests and THC Levels Unreliable Indicators of Marijuana Intoxication • National Institute of Justice • April 5, 2021 • Six dosing sessions with edibles (0, 10 and 25mg) • SFSTs were used to detect impairment due to THC • Researchers concluded that, for their dosing study, THC levels in bio-fluid were not reliable indicators of marijuana intoxication

The Usefulness of SFST’s in Detecting Drugs Other Than Alcohol • Dary Fiorentino, Ph.D. • Samuel Evans Grand Blanc Township Police Department • Thomas E. Page LA PD retired

The Usefulness of SFST’s in Detecting Drugs Other Than Alcohol • The objective of the study was to determine whether the three standardized field sobriety tests (SFSTs) alone or in combination can detect impairment caused by drugs other than alcohol

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The Usefulness of SFST’s in Detecting Drugs Other Than Alcohol • Data was collected from arrestees selected at random while they awaited processing at the jail • Officers administered SFSTs (HGN, W&T and OLS) • A PBT was used to measure alcohol • A one step multi drug urine test was used to detect drugs other than alcohol • A saliva test was administered and later determined to not be accurate

The Usefulness of SFST’s in Detecting Drugs Other Than Alcohol • HGN alone had an overall accuracy above chance for all drugs except marijuana • WAT alone had an overall accuracy above chance for marijuana, CNS stimulants and any one or more drugs • OLS alone had an overall accuracy above chance for cocaine, marijuana, CNS depressants, CNS stimulants and any one or more drugs

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Texas Criminal Defense Lawyers Association

9th Annual Lone Star DWI Back in the Fight January 21, 2022

Topic: Marijuana & Driving Speaker:

Dr. Rachna Patel 539 West Commerce Street #6624 Dallas, Tx 75208 (973) 978-9247 Phone drrachnapatel@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Driving under the Influence of Marijuana: The Medical Evidence Dr. Rachna Patel Cannabis Medicine Expert

What are legal limits for marijuana?

SOURCE: https://www.ncsl.org/research/transportation/drugged-driving-overview.aspx

The Long & Short of It Does Marijuana actually impair ability to drive?

TDLR: While several studies have shown increased risk of impairment associated with cannabis use by drivers, other studies have not found increased risk of impairment.

Is testing for THC (the main psychoactive chemical in cannabis) a reliable means to measure impairment?

TDLR: Even though it is possible that cannabis impairs driving ability to some extent, there are currently no reliable means to test or measure whether a driver was actually impaired.

How does Marijuana affect psychomotor performance?

THC in the amount of 5–15 mg can cause significant impairment of performance in complex or demanding tasks, such as those involving fine hand–eye coordination, complex tracking, divided attention tasks, visual information processing, digit code tests, alternate addition–subtraction tasks and many others. Performance in all of these tasks deteriorates as the dose increases and can last for 2 h or more after single doses. These results have implications for performance in a variety of real-life situations and across a range of occupations.

SOURCE: https://pubmed.ncbi.nlm.nih.gov/10673884/

How does Marijuana affect driving performance?

TDLR: Smoking marijuana has been shown to affect a number of driving-related skills. Laboratory, simulated and instrumented vehicle studies have shown that marijuana can impair critical abilities necessary for safe driving, such as: ● ● ● ● ● ● ● ●

slow reaction time, for example, responding to unexpected events with emergency braking cause problems with road tracking lane position variability decrease divided attention target recognition impair cognitive performance attention maintenance impair executive functions - route planning, decision making, and risk taking

A note on how the research is conducted It should be noted that this type of research typically does not involve measurement of blood THC levels; rather, subjects’ performance between non-dosed trials (placebo condition) and dosed trials (when administered marijuana) are compared. As a result of differences in how subjects conduct the smoking regime (inhalation rate, depth of inhalation, and time between inhalation and exhalation), fairly wide differences in blood THC levels are likely between subjects.

How does Marijuana affect driving performance?

A study published in 2010 compared the effects of three doses of cannabis on young, novice drivers and more experienced drivers.

And the results of the simulated study showed that Cannabis in general was associated with increases in speed and lateral position variability. More specifically, results indicated that high dose cannabis was associated with decreased mean speed, increased mean and variability in headways, and longer reaction time.

SOURCE: https://pubmed.ncbi.nlm.nih.gov/20380913/

How does Marijuana affect driving performance?

A study published in 2015 looked at how blood Δ(9)-tetrahydrocannabinol (THC) concentrations relate to driving impairment.

Results of the simulated study showed that cannabis increased standard deviations of lateral position. In other words, lane weave. Blood THC concentrations of 8.2 and 13.1μg/L during driving increased SDLP similar to 0.05 and 0.08g/210L breath alcohol concentrations, the most common legal alcohol limits.

Cannabis-alcohol SDLP effects were additive rather than synergistic, with 5μg/L THC+0.05g/210L alcohol showing similar SDLP to 0.08g/210L alcohol alone.

SOURCE: https://pubmed.ncbi.nlm.nih.gov/26144593/

How does Marijuana affect driving performance?

A study published in 2013 reviewed and evaluated the current literature on cannabis' effects on driving.

The experimental data showed that drivers attempt to compensate by driving more slowly after smoking cannabis, but control deteriorates with increasing task complexity. Cannabis smoking increases lane weaving and impaired cognitive function. Critical-tracking tests, reaction times, divided-attention tasks, and lane-position variability all show cannabis-induced impairment.

Despite purported tolerance in frequent smokers, complex tasks still show impairment.

Combining cannabis with alcohol enhances impairment, especially lane weaving.

SOURCE: https://pubmed.ncbi.nlm.nih.gov/23220273/

Does the dose of Marijuana consumed matter?

According to several sources and studies, driving performance decrements are generally dose-related and typically persist for 2 – 4 hours.

SOURCE: https://pubmed.ncbi.nlm.nih.gov/15370012/

Is there a correlation between THC blood levels and degree of impairment?

While fewer studies have examined the relationship between THC blood levels and degree of impairment, in those studies that have been conducted the consistent finding is that the level of THC in the blood and the degree of impairment do not appear to be closely related. Peak impairment does not occur when THC concentration in the blood is at or near peak levels. Peak THC level can occur when low impairment is measured, and high impairment can be measured when THC level is low. Thus, in contrast to the situation with alcohol, someone can show little or no impairment at a THC level at which someone else may show a greater degree of impairment.

Do Standard Field Sobriety Tests measure Impairment?

A study published in 2005 conducted in Australia assessed whether SFSTs provide a sensitive measure of impairment following the consumption of THC. 40 participants consumed cigarettes that contained either 0% THC (placebo), 1.74% THC (low dose) or 2.93% THC (high dose). For each condition, after smoking a cigarette, participants performed the SFSTs on three occasions: 5 min, 55 min and 105 min after the smoking procedure had been completed.

Do Standard Field Sobriety Tests measure Impairment?

The results revealed that there was a positive relationship between the dose of THC administered and the number of participants classified as impaired based on the SFSTs. ● ● ●

The results revealed that the higher the content of THC consumed, the greater the number of participants that were classified as impaired to a degree equivalent to a BAC of above 0.10% The level of THC in the blood related to the consumption of either 1.74% or 2.93% THC ranged between approximately 2 ng/mL to 70 ng/mL The results also revealed that the percentage of participants classified as impaired decreased from 5 min to 105 min after smoking

These findings suggest that impaired performance on the SFSTs is related to the dose of THC administered.

Overall, the findings indicate that the SFSTs provide sensitive measures of impairment even when a relatively low dose of THC has been consumed.

SOURCE: https://pubmed.ncbi.nlm.nih.gov/15619106/

Do Standard Field Sobriety Tests measure Impairment?

A similar study published in 2005 conducted in Australia also assessed whether performance on SFSTs provides a sensitive measure of impaired driving behaviour following the consumption of THC. In a repeated measures design, 40 participants consumed cigarettes that contained either 0% THC (placebo), 1.74% THC (low dose) or 2.93% THC (high dose). For each condition, after smoking a cigarette, participants performed the SFSTs on three occasions (5, 55 and 105 min after the smoking procedure had been completed) as well as a simulated driving test on two occasions (30 and 80 min after the smoking procedure had been completed).

Do Standard Field Sobriety Tests measure Impairment? ●

●

The results revealed that driving performance was not significantly impaired 30 min after the consumption of THC but was significantly impaired 80 min after the consumption of THC in both the low and high dose conditions. When driving performance was impaired, a greater number of SFST signs were observed than when driving performance was not impaired.

The percentage of participants whose driving performance was correctly classified as either impaired or not impaired based on the SFSTs ranged between 65.8 and 76.3%, across the two THC conditions.

The results suggest that performance on the SFSTs provides a moderate predictor of driving impairment following the consumption of THC and as such, the SFSTs may provide an appropriate screening tool for authorities that wish to assess the driving capabilities of individuals suspected of being under the influence of a drug other than alcohol.

SOURCE: https://pubmed.ncbi.nlm.nih.gov/1622615

Do Standard Field Sobriety Tests measure Impairment?

National Institute of Justice-supported researchers from RTI International studied how specific cannabis doses and administration methods (eaten or vaped) affect THC levels in the body and how that correlates with performance on impairment tests.

RTI concluded that THC levels in biofluid were not reliable indicators of marijuana intoxication. Many of their study participants had significantly decreased cognitive and psychomotor functioning even when their blood, urine, and oral fluid contained low levels of THC. The researchers also observed that standardized field sobriety tests commonly used to detect driving under the influence of drugs or alcohol were not effective in detecting marijuana intoxication.

SOURCE: https://nij.ojp.gov/topics/articles/field-sobriety-tests-and-thc-levels-unreliable-indicators-m arijuana-intoxication

How well do DRE examinations predict marijuana impairment?

A study published in 2016 sought to determine the most reliable Drug Evaluation and Classification Program metrics for identifying cannabis-driving impairment.

Based on 302 full DRE evaluations from cannabis-only cases, the results showed ● ● ● ● ●

no significant differences between cases with blood THC <5μg/L versus ≥5μg/L Finger to Nose best predicted cannabis impairment utilizing ≥3 misses as the deciding criterion other strong indicators included One Leg Stand sway, ≥2 Walk and Turn clues, and pupil rebound dilation requiring ≥2/4 of: ≥3 FTN misses, MRB eyelid tremors, ≥2 OLS clues, and/or ≥2 WAT clues produced the best results OVERALL, the most reliable impairment indicators included elevated pulse, dilated pupils, lack of convergence, rebound dilation, and documented impairment in 2 of 4 psychophysical tasks

SOURCE: https://pubmed.ncbi.nlm.nih.gov/27107471/

How predictive are Horizontal & Vertical Gaze Nystagmus of marijuana impairment?

“HGN in DRE evaluations indicates impairment associated with select categories of drugs, e.g. alcohol, CNS depressants, dissociative anesthetics, inhalants, and/or medical conditions affecting driving ability, but is not typically associated with cannabis in these protocols (Couper and Logan, 2014; Kosnoski et al., 1998; McLane and Carroll, 1986; Richman and Jakobowski, 1994). Thus, the lack of significant HGN differences in our study was expected.”

“VGN is associated with the same drugs that produce HGN [at higher doses] (Couper and Logan, 2014), but not cannabis.”

SOURCE: https://pubmed.ncbi.nlm.nih.gov/27107471/

How to test for marijuana? ●

Existing roadside drug tests cannot identify recent marijuana use

●

There is no chemical test for marijuana impairment, like a BAC or BrAC test for alcohol that quantifies the amount of alcohol in their body

●

●

Toxicological tests confirm presence of THC but they do not indicate driver impairment or necessarily indicate recent marijuana use (when the THC levels are low) The presence of THC in a driver (blood, oral fluid, etc.) does not establish impairment, it also does not distinguish been active use of marijuana and environmental exposure or contamination. Some studies have shown that people exposed to second-hand marijuana smoke can test positive for THC

SCREENING TEST FOR MARIJUANA Common to use an immunoassay test designed to detect cannabinoids.

However, a positive screening test cannot be taken as evidence that the drug is present in the specimen, as these tests lack high specificity, are subject to cross-reactivity, and may on occasion produce a false positive result. Many of the THC immunoassay screening tests can give a positive response to the presence of THC metabolites, even though THC is not present in the sample.

SPECIMEN TESTING FOR MARIJUANA BLOOD ● ●

THC level in blood (or oral fluid) does not appear to be an accurate and reliable predictor of impairment from THC. Low THC levels of a few nanograms per milliliter (ng/ml) in blood can result from relatively recent use (e.g., smoking within 1 – 3 hours), or it can result from chronic use where no recent ingestion has occurred and no impairment is present.

ORAL ●

Some companies market self- contained test kits that can be used by law enforcement; however, these point-of-arrest screening devices have not been shown to be completely accurate and reliable. Marijuana (THC) is readily detected in oral fluid, however, there are issues associated with distinguishing use versus environmental exposure, that have not been fully addressed.

HAIR ●

While THC can be detected in hair it can result from environmental exposure (e.g., from marijuana smoke) that can produce a positive hair test result.

SPECIMEN TESTING FOR MARIJUANA URINE ● ● ●

Urine is the most widely tested 11-nor-9-Carboxy-THC is the target analyte for urine drug testing 11-nor-9-Carboxy-THC may persist for weeks or even months in chronic users after last use

SOURCES: ● https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5330962/ ● https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5330962/

What’s the detection window for THC & it’s metabolites?

SOURCE: https://www.ndci.org/wp-content/uploads/THC_Detection_Window_0.pdf

What’s the Huestis Model?

A mathematical model to predict time of marijuana use based on the analysis of a plasma sample for cannabinoids.

What are the limitations of the Huestis Model? ● ●

●

Conditions that contribute to interindividual variation in plasma concentrations of THC and its metabolites were carefully controlled When applying the models to whole blood concentrations, it is important to remember that blood THC and THCCOOH concentrations are lower than in plasma because of restricted distribution of these analytes into erythrocytes. The blood-to-plasma ratio is estimated to be 0.5 for living humans, although supporting data are limited.

Models do not accurately predict time of last THC intake in individuals consuming THC daily.

SEE: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3461265/

Dr. Huestis says...

"There is no one blood or oral fluid concentration that can differentiate impaired and not impaired," says Marilyn Huestis, who spent over 20 years leading cannabinoid-related research projects at the National Institute on Drug Abuse. "It's not like we need to say, 'Oh, let's do some more research and give you an answer.' We already know. We've done the research."

Huestis, like most researchers, doesn't support a legal driving limit for cannabis like the one in place for blood alcohol concentrations. Instead, she advocates for well-trained police officers who can identify the behavioral signs of impairment and less invasive biological marker tests, which could be immediately performed at the roadside to confirm the presence of a cannabinoid.

SOURCE: https://www.eurekalert.org/pub_releases/2018-01/cp-dar011818.php

Dr. Rachna Patel Cannabis Medicine Expert

DrRachnaPatel@gmail.com

Texas Criminal Defense Lawyers Association

9th Annual Lone Star DWI Back in the Fight January 21, 2022

Topic: Drugged Driving: Current Research Speaker:

Deandra Grant 3300 Oak Lawn Ave Ste 700 Dallas, TX 75219-4270 (972) 943-8500 Phone (972) 432-7547 Fax TexasDWIGal@gmail.com email www.texasdwisite.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

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Field Sobriety Tests and THC Levels Unreliable Indicators of Marijuana Intoxication Researchers investigated how marijuana affects skills required for safe driving and found that biofluid levels of THC did not correlate with field sobriety test performance or marijuana intoxication, regardless of how the cannabis was ingested.

April 5, 2021

Laws regarding driving under the influence of marijuana vary from state to state, with a growing trend toward “per https://nij.ojp.gov/topics/articles/field-sobriety-tests-and-thc-levels-unreliable-indicators-marijuana-intoxication

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Field Sobriety Tests and THC Levels Unreliable Indicators of Marijuana Intoxication | National Institute of Justice

se” laws that use a level of delta-9-tetrahydrocannabinol (THC, one of the psychoactive substances in marijuana) in the blood, urine, or oral fluid as a determinant of intoxication.[1] However, there is little evidence correlating

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Publications Differences in Cannabis Impairment and

a specific THC level with impaired driving, making

its

marijuana per se laws controversial and difficult to

Measurement

prosecute.[2]

Due to Route of

In an effort to better understand marijuana intoxication

Administration

and, ultimately, improve marijuana intoxication legislation, National Institute of Justice-supported researchers from RTI International studied how specific cannabis doses and administration methods (eaten or vaped) affect THC levels in the body and how that correlates with performance on

Related Awards

impairment tests. Results from their clinical dosing

Differences in

sessions showed that THC levels in study participants’

Cannabis

biofluids varied depending on cannabis dose and

Impairment and

administration method and that timing of maximum

its

impairment for each dose – and performance on

Measurement

impairment tests – also varied by dose and administration

Due to Route of

method. Therefore, the RTI team concluded that, although

Administration

THC has been proven to affect areas of the brain that control movement, balance, coordination, memory, and judgment,[3] – skills required for safe driving – THC levels in biofluids were not reliable indicators of marijuana intoxication for their study participants.

THC Dosing Study Design and Results Through six double-blind clinical dosing sessions, the RTI https://nij.ojp.gov/topics/articles/field-sobriety-tests-and-thc-levels-unreliable-indicators-marijuana-intoxication

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researchers evaluated how oral and vaporized administration of known doses of THC affected behavior and performance, as well as forensic toxicology testing of blood, urine, and oral fluid samples in 20 study participants.

Each of the participants completed all six dosing sessions. They ate cannabis brownies with 0, 10 mg, and 25 mg of THC and inhaled vapor containing 0, 5 mg, and 20 mg of THC. The dosing sessions were spaced at least one week apart.

Cognitive and Psychomotor E!ects of THC Study participants’ cognitive and psychomotor performances were assessed using common impairment tests – none of which are currently part of a legal protocol for determining marijuana intoxication – before and after THC dosing, including: Paced serial addition test.

Digit symbol substitution test.

Divided attention test.

Tasks 1-4 from the DRUID iOS smartphone app.

Standardized field sobriety tests to detect alcohol impairment, including standing on one leg, walk and turn, modified Romberg balance, and eye tracking for nystagmus and pupillary response.

After THC dosing, study participants reported feeling heightened drug effects with increased cannabis doses.

These subjective effects peaked on average three to five hours after oral administration and zero to one hour after https://nij.ojp.gov/topics/articles/field-sobriety-tests-and-thc-levels-unreliable-indicators-marijuana-intoxication

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Field Sobriety Tests and THC Levels Unreliable Indicators of Marijuana Intoxication | National Institute of Justice

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vaped administration.

Study participants’ cognitive and psychomotor functioning were negatively impacted after all oral and vaped doses of cannabis except for the lowest vaped dose, which contained 5 mg THC. For vaped THC doses over 5 mg, peak cognitive and psychomotor effects were observed zero to two hours after administration and returned to baseline after four hours.

For oral THC doses, cognitive and psychomotor effects were observed one hour after administration and peak effects were seen about five hours after administration.

Participants’ cognitive and psychomotor functioning returned to baseline eight hours after oral administration.

The researchers reported that the one leg stand, walk and turn, and modified Romberg balance tests were not sensitive to cannabis intoxication for any of the study participants.

Testing Biofluids for THC Samples of blood, urine, and oral fluid were collected from study participants before cannabis dosing and then nearly every hour for eight hours after dosing. The researchers sent all biofluid samples to commercial forensic toxicology laboratories to be analyzed for THC as well as nonpsychoactive cannabis components cannabidiol and cannabinol.

Results from the toxicology tests showed that the levels of https://nij.ojp.gov/topics/articles/field-sobriety-tests-and-thc-levels-unreliable-indicators-marijuana-intoxication

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Field Sobriety Tests and THC Levels Unreliable Indicators of Marijuana Intoxication | National Institute of Justice

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all three targeted cannabis components (THC, cannabidiol, and cannabinol) in blood, urine, and oral fluid did not correlate with cognitive or psychomotor impairment measures for oral or vaporized cannabis administration.

Conclusions and Implications for Law Enforcement RTI concluded that, for their dosing study, THC levels in biofluid were not reliable indicators of marijuana intoxication. Many of their study participants had significantly decreased cognitive and psychomotor functioning even when their blood, urine, and oral fluid contained low levels of THC. The researchers also observed that standardized field sobriety tests commonly used to detect driving under the influence of drugs or alcohol were not effective in detecting marijuana intoxication.

The RTI researchers hope their work will inform policy for cannabis impairment and driving under the influence of drugs and help establish scientifically-based thresholds for marijuana intoxication.

About this Article The research described in this article was funded by NIJ grant 2016-DN-BX-0193, awarded to RTI International. This article is based on the grantee final report “Differences in https://nij.ojp.gov/topics/articles/field-sobriety-tests-and-thc-levels-unreliable-indicators-marijuana-intoxication

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Cannabis Impairment and its Measurement Due to Route of Administration” (March 2020) by Megan Grabenauer.

Notes [note 1] National Highway Traffic Safety Administration, Governors Highway Safety Association, & the Volpe National Transportation Systems Center, “Impact of the Legalization and Decriminalization of Marijuana on the DWI System: Highlights from the Expert Panel Meeting,” Washington, DC: National Highway Traffic Safety Administration, June 2017, Report No. DOT HS 812 430, https://www.ghsa.org/sites/default/files/201706/ncrep_062617.pdf. [note 2] Mark Asbridge, Jill A. Hayden, and Jennifer L. Cartwright, “Acute Cannabis Consumption and Motor Vehicle Collision Risk: Systematic Review of Observational Studies and Meta-Analysis,” The British Medical Journal, 344 (2012): e536, https://www.bmj.com/content/bmj/344/bmj.e536.full.pdf

Rebecca L. Hartman and Marilyn A. Huestis, “Cannabis Effects on Driving Skills,” Clinical Chemistry, 59 no. 3 (2013):478-492, https://academic.oup.com/clinchem/article/59/3/478/5621997 [note 3] Immaculada Fierro, Juan Carlos Gonzáles-

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Luque, and F. Javier Álvarez, “The Relationship Between Observed Signs of Impairment and THC Concentration in Oral Fluid,” Drug and Alcohol Dependence, 144 (2014): 231-238, https://doi.org/10.1016/j.drugalcdep.2014.09.770.

Cite this Article

Read More About: Driving Under the Influence (DUI) Forensic sciences

Marijuana

Drugs

Date Created: March 26, 2021

https://nij.ojp.gov/topics/articles/field-sobriety-tests-and-thc-levels-unreliable-indicators-marijuana-intoxication

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RESEARCH REPORT

doi:10.1111/add.14663

Cannabis use as a risk factor for causing motor vehicle crashes: a prospective study Jeffrey R. Brubacher1 , Herbert Chan2, Shannon Erdelyi2, Scott Macdonald3, Mark Asbridge4, Robert E. Mann5, Jeffrey Eppler6, Adam Lund7, Andrew MacPherson8, Walter Martz9, William E. Schreiber2, Rollin Brant2 & Roy A. Purssell2 Vancouver General Hospital and University of British Columbia, Vancouver, BC, Canada,1 University of British Columbia, Vancouver, BC, Canada,2 University of Victoria, Victoria, BC, Canada,3 Dalhousie University, Halifax, Nova Scotia, Canada,4 Centre for Addiction and Mental Health, Toronto and University of Toronto, Toronto, Ontario, Canada,5 Kelowna General Hospital and University of British Columbia, Kelowna, BC, Canada,6 Royal Columbian Hospital and University of British Columbia, New Westminster, BC, Canada,7 Victoria General Hospital and University of British Columbia, Victoria, BC, Canada8 and Institute of Forensic Medicine, Justus Liebig University, Giessen, Germany9

ABSTRACT

Aim We conducted a responsibility analysis to determine whether drivers injured in motor vehicle collisions who test positive for Δ-9-tetrahydrocannabinol (THC) or other drugs are more likely to have contributed to the crash than those who test negative. Design Prospective case–control study. Setting Trauma centres in British Columbia, Canada.

Participants Injured drivers who required blood tests for clinical purposes following a motor vehicle collision.

Measurements Excess whole blood remaining after clinical use was obtained and broad-spectrum toxicology testing performed. The analysis quantified alcohol and THC and gave semiquantitative levels of other impairing drugs and medications. Police crash reports were analysed to determine which drivers contributed to the crash (responsible) and which were ‘innocently involved’ (non-responsible). We used unconditional logistic regression to determine the likelihood (odds ratio: OR) of crash responsibility in drivers with 0 < THC < 2 ng/ml, 2 ng/ml ≤ THC < 5 ng/ml and THC ≥ 5 ng/ml (all versus THC = 0 ng/ml). Risk estimates were adjusted for age, sex and presence of other impairing substances.

Findings We obtained toxicology results on 3005 injured drivers and police reports on 2318. Alcohol was detected in 14.4% of drivers, THC in 8.3%, other drugs in 8.9% and sedating medications in 19.8%. There was no increased risk of crash responsibility in drivers with THC < 2 ng/ml or 2 ≤ THC < 5 ng/ml. In drivers with THC ≥ 5 ng/ml, the adjusted OR was 1.74 [95% confidence interval (CI) = 0.59–6.36; P = 0.35]. There was significantly increased risk of crash responsibility in drivers with blood alcohol concentration (BAC) ≥ 0.08% (OR = 6.00;95% CI = 3.87–9.75; P < 0.01), other recreational drugs detected (OR = 1.82;95% CI = 1.21–2.80; P < 0.01) or sedating medications detected (OR = 1.45; 95%CI = 1.11–1.91; P < 0.01). Conclusions In this sample of non-fatally injured motor vehicle drivers in British Columbia, Canada, there was no evidence of increased crash risk in drivers with Δ-9-tetrahydrocannabinol < 5 ng/ml and a statistically non-significant increased risk of crash responsibility (odds ratio = 1.74) in drivers with Δ-9tetrahydrocannabinol ≥ 5 ng/ml.

Keywords

Alcohol, cannabis, drugs, motor vehicle crash, per se limits, tetrahydrocannabinol.

Correspondence to: Jeffrey R. Brubacher, Vancouver General Hospital, Emergency Medicine Research Office, Room G409899, W 12th Ave, Vancouver, BC V5Z 1M9, Canada. E-mail: jbrubacher@shaw.ca Submitted 31 October 2018; initial review completed 21 January 2019; final version accepted 10 May 2019

INTRODUCTION The legal status of cannabis is changing rapidly. Cannabis has been legal for medical use in Canada since 2001, and 25 US States have legalized or decriminalized medical cannabis [1]. At present, four US states and several countries have gone further and legalized cannabis for

recreational use. The Canadian government recently legalized the production, possession, distribution and sale of cannabis for recreational use.

Cannabis contains more than 60 cannabinoids, but most impairing effects are caused by Δ-9-tetrahydrocannabinol (THC) [2], the main psychoactive compound. After smoking a ‘joint’, whole blood THC levels typically peak at

© 2019 The Authors. Addiction published by John Wiley & Sons Ltd on behalf of Society for the Study of Addiction Addiction, 114, 1616–1626 This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited and is not used for commercial purposes.

Cannabis and motor vehicle crashes > 100 ng/ml within 15 minutes and then drop rapidly, so that THC is usually < 2 ng/ml within 4 hours after a single acute exposure [3]. Psychotrophic effects typically peak at 20–30 minutes and resolve by 4 hours. Ingesting cannabis delays the onset and extends the duration of effect. The main THC metabolite, 11-nor-9-carboxy-delta9-tetrahydrocannabinol (THC-COOH), is not psychoactive and persists in blood and urine long after impairment has resolved. Thus, THC-COOH provides evidence of previous cannabis exposure but does not necessarily indicate impairment or recent use. Urine tests for cannabis measure THC-COOH, and cannot confirm recent use [4–12]. THC is also found in oral fluid of cannabis users due to local absorption of THC in the oral cavity during smoking [13,14]. Oral fluid is easier to obtain than blood and is useful for screening [15–17], but THC concentration in oral fluid correlates poorly with blood level or impairment [17–19], and blood is considered to be the best medium for measuring THC in the impairing range [20].

Many North Americans drive after using cannabis [21–23] and there is concern that this practice will increase following legalization, resulting in more crashes due to cannabis impairment. Controlled experiments show that cannabis impairs the psychomotor skills required for safe driving, with participants displaying slower reaction time, impairment in automated tasks such as tracking ability (e.g. staying within a lane) or monitoring a speedometer, impaired divided attention performance, impaired working memory and more errors in simulated driving tests [19,24–29]. However, there is also evidence that cannabis users are aware of their impairment and compensate by driving more slowly, leaving more headway and taking fewer risks [25–27]. Epidemiological evidence is required to understand the ‘real-world’ crash risk associated with acute cannabis use.

Several recent meta-analyses concluded that cannabis increases crash risk, with estimated odds ratios (ORs) ranging from 1.36 to 2.66 [30,31]. Most studies employed either case–control designs which compare cannabis use in crash-involved drivers with non-crash-involved drivers [32–43] or responsibility analyses which include only crash-involved drivers and compare cannabis use in drivers deemed responsible for the crash versus in those deemed non-responsible [44–51]. Unfortunately, most studies had significant limitations. Cannabis exposure was often based on either presence of THC-COOH or any THC above the limit of detection, neither of which necessarily indicates acute use or impairment. In fact, the most recent review found only five studies that calculated crash risk for drivers with blood THC > 2 ng/ml [31]. All case–control studies had high refusal rates (> 15%), potentially resulting in selection bias if drivers who refused participation had different rates of drug use than those who participated, as is probably the case. In addition, many case–control studies

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employed different methods to detect cannabis exposure in cases versus in controls (e.g. blood THC in cases and saliva THC in controls). Another common problem was use of non-comparable controls (e.g. patients visiting hospital for medical problems) to estimate THC use in the general driving population. A responsibility analysis design has several advantages. Because all drivers are involved in a crash, this method minimizes the problem with differential ascertainment of THC in cases versus controls. Furthermore, responsibility analyses typically eliminate bias due to refusals by taking advantage of mandatory THC testing performed as part of routine police [50] or coroner [49] investigation. Responsibility analyses are limited due to the inherent difficulty in retrospectively determining responsibility, combined with the fact that all included drivers ‘failed to avoid crashing’. As a result, some ‘nonresponsible’ drivers may differ from the general driving population. Previous responsibility analyses had mean delays of > 3 hours from crash until blood collection for THC measurement [47,49–51], which is important because THC levels decline rapidly after smoking marijuana, so levels measured > 3 hours after a crash will be significantly lower than at the time of the crash [52]. Many responsibility analyses used THC from coroner reports, but interpretation of those levels is complicated by postmortem redistribution of THC [53–55].

A large 2015 case–control study from Virginia warrants comment [43,56]. Researchers accompanied police to 2682 crashes and measured oral fluid THC in crashinvolved drivers and in 6190 roadside control drivers, matched for time and place of crash. No associations between THC and crash risk were observed (adjusted OR = 1.00). This study, like all roadside surveys of drug use in drivers, is limited by high refusal rates in both crash-involved drivers (20.4%) and controls (17.7%).

Other limitations include use of limit of detection for THC in oral fluid (and therefore inclusion of unimpaired drivers in the THC positive group) and a focus on minor crashes (no injuries in 76.4%), where the prevalence of driver impairment may differ.

As evidence-based legal limits (per se limits) are effective in preventing drunk driving, many jurisdictions have set per se limits for THC. Unfortunately, given limited evidence, setting evidence-based per se levels for THC is challenging.

Some experts suggest that many drivers with blood THC > 3 ng/ml [57] or > 3–5 ng/ml [29] have significant impairment and should be prohibited from driving. A recent simulator study suggested that drivers with blood THC > 8.2 ng/ml were as impaired as drivers with blood alcohol content (BAC) > 0.05% [19]. Based on these reports, many jurisdictions, including many US states and Canada, have set THC per se limits of 2 or 5 ng/ml. These levels, especially the 2 ng/ml level, have been criticized because they may not indicate impairment, especially in frequent users

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who develop tolerance to some THC impairing effects [24,58,59]. In addition, because cannabinoids accumulate in fat, some daily users may have blood THC > 2 ng/ml after a week or more of abstinence [10,60]. Advocates of lower per se levels note that THC concentration drops rapidly after smoking, so a driver could be impaired with high THC levels at the time of driving but be below 5 ng/ml several hours later if there is a delay in obtaining blood samples [52], a fact that supports lower per se limits for THC. Better estimates of the crash risk associated with acute cannabis use are required to guide policy, public education, enforcement and resource allocation strategies aimed to prevent impaired driving. Here we report a prospective observational study which quantifies the relationship between acute cannabis use and crash risk while avoiding many limitations of previous research. We specifically study crash risk associated with THC levels of 2–5 ng/ml and > 5 ng/ml.

blood before it was discarded. Blood was frozen for later toxicology analysis. Drivers with minor injuries who did not require bloodwork were excluded. Drivers were also excluded if blood samples were obtained more than 6 hours after the crash, no excess blood remained after clinical use or if police did not investigate the crash. Drivers of motorcycles or commercial vehicles were excluded, because the responsibility tool is not validated for these vehicles.

Health records We reviewed medical records and recorded basic demographic and medical information as well as all medications given as part of the driver’s clinical care prior to phlebotomy. All ‘post-crash’ medications given prior to phlebotomy were identified by review of paramedic and emergency department nursing notes and accounted for when reporting the medications detected in a driver’s blood samples.

METHODS Toxicology analysis This study was approved by the University of British Columbia research ethics board (REB).

Study design We studied moderately injured drivers who were treated in hospital after a crash. Moderate injury was defined pragmatically as meaning that bloodwork (blood count or electrolyte measurement) was required for clinical assessment.

We used a responsibility analysis design [61,62] and compared THC levels in drivers deemed responsible for the crash (cases) versus in drivers deemed non-responsible (controls). Because we used excess blood remaining after clinical use, and had procedures to protect personal information, the REB approved waiver of consent.

Sampling We prospectively sampled drivers from seven participating British Columbia (BC) trauma centres (January 2010–July 2016). All injured automobile drivers for whom police crash reports were available and blood samples were obtained as part of clinical care were included. The decision to obtain blood was made by treating physicians based on their assessment of the driver’s clinical condition, and not based on suspicion of drug use. Most samples contained whole blood [in ethylenediamine tetraacetic acid (EDTA)] obtained to measure complete blood counts (CBC); the remainder contained plasma that had been obtained to measure electrolytes. Note that excess blood used in this study had not been obtained for toxicology testing and clinicians did not receive the results of drug testing from this study.

Research assistants regularly reviewed emergency department records to identify eligible drivers and obtained excess

Broad-spectrum toxicology testing on whole blood samples was conducted at the BC Provincial Toxicology Centre [63]. Toxicology testing detected alcohol and cannabinoids, other recreational drugs (cocaine, amphetamines including designer drugs and opiates), as well as psychotrophic pharmaceuticals (including antihistamines, benzodiazepines, other hypnotics and sedating antidepressants). The laboratory methods detected opium alkaloids (codeine and morphine), semisynthetic opioids (oxycodone, hydromorphone) and synthetic opioids (methadone, fentanyl). Detection limits were 0.2 ng/ml for THC and 1 ng/ml for other drugs.

Police crash reports We obtained police reports via probabilistic linkage based on driver’s name, age, sex and date of crash. Responsibility for the crash was determined by standardized scoring of police reports by computerized algorithm, using a validated scoring system as reported elsewhere [64]. The algorithm considers seven categories that could contribute to a crash (road conditions, weather, vehicle factors, action of other drivers, the difficulty of the manoeuvre being performed at time of the crash, action of the index driver, obedience of road laws and crash configuration). Each category is given a score between 1 and 5 based on factors that police believe contributed to the crash (contributory factors) and/or other standardized data recorded in BC police reports. High total scores (≥ 16) indicate that external factors contributed to the crash and the driver was considered non-responsible. Scores ≤ 13 indicate that the only explanation for the crash lay with the index driver, and the driver is considered responsible. For example, if the police report lists road conditions as a contributory factor, the

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driver would receive a score of 5 for road conditions. Conversely, if the police report indicates that the crash occurred on a dry paved road, the score for road conditions would be 1. Drivers with indeterminate scores (14 or 15) were excluded from the analysis. The scoring system does not consider police impression of driver impairment or other ‘human condition’ factors.

Explanatory variables We considered the following explanatory factors for crash responsibility: (1) driver age (< 20, 20–30 and > 50 years versus 31–50 years), (2) sex, (3) health authority of the visited hospital (Fraser, Interior, and Vancouver Island versus Vancouver Coastal), (4) THC level (0 < THC < 2 ng/ml, 2 ≤ THC < 5 ng/ml and THC ≥ 5 ng/ml versus THC = 0 ng/ ml), (5) BAC level (0 < BAC < 0.08% and BAC ≥ 0.08% versus BAC = 0%), (6) other recreational drugs detectable (e.g. cocaine, amphetamines) and (7) medications detectable (including benzodiazepines, antidepressants, antipsychotics, tricyclics, Z-drugs and anticonvulsants).

Analysis For all drivers with a police crash report, we computed a crash responsibility score and categorized the driver as either responsible (1), non-responsible (0) or indeterminate (excluded from analysis) [64]. For each explanatory factor, we computed unadjusted odds ratios (ORs) for responsibility and corresponding 95% confidence intervals (CIs) via univariate logistic regression. To obtain adjusted ORs, we fitted a logistic regression model that included all explanatory factors as predictors.

We also fitted a secondary logistic regression model with THC in ng/ml as a continuous variable and other factors unchanged. We explored the possibility of quadratic and cubic relationships between THC and the log odds of responsibility, but likelihood ratio tests indicated that these higher-order polynomials did not improve the model fit. We also considered a model with log-transformed THC, but this model had only a marginally higher Akaike’s information criterion (AIC) than the model without transformation.

In a third model, we examined the interaction between alcohol and cannabis but simplified the categorization of each substance due to insufficient data. Of the drivers who tested positive for both alcohol and cannabis, none of these drivers had THC ≥ 5 ng/ml and 0 < BAC < 0.08, so no interaction could be estimated. Furthermore, all the alcohol-impaired drivers with 2 ≤ THC < 5 ng/ml were classified as responsible, resulting in unreasonably large standard errors. In light of this, our interaction model categorized alcohol as either positive or negative; cannabis as either THC = 0 ng/ml, 0 < THC < 2 ng/ml, or THC ≥ 2 ng/ml; and all other explanatory factors as

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described previously. We used Firth’s penalized likelihood to address separability in the model with interaction.

We conducted two sets of sensitivity analyses. First, we excluded drivers whose blood was drawn more than (i) 1 hour, (ii) 2 hours or (iii) 4 hours after the crash. Secondly, we studied the effect of coding indeterminate cases as either (i) responsible or (ii) non-responsible to explore possible bias related to exclusion of these drivers. Alpha < 0.05 was considered statistically significant.

RESULTS During the course of the study (January 2010 to July 2016), 3005 drivers meeting inclusion criteria presented to a participating hospital and had excess blood available for analysis. Police reports were available for 2318 drivers (Fig. 1). Most drivers (63.2%) were male. The mean age was 44 (range = 16–93); 596 (25.7%) were admitted to hospital (Table 1).

At least one potentially impairing substance was detected in 886 drivers (38.2%). Alcohol was detected in 334 drivers (14.4%), THC in 192 (8.3%), other recreational drugs in 207 (8.9%) and sedating medications in 460 (19.8%). Polysubstance use was common, and many drivers (11.4%) tested positive for more than one impairing substance (Table 2).

Overall, 1178 drivers (50.8%) were deemed responsible for the crash, 647 (27.9%) were not responsible and 493 (21.3%) had indeterminate responsibility. Drivers aged < 20 years were more likely to be responsible than drivers aged 31–50 years (OR = 4.00; 95% CI = 2.14–8.17).

There was no difference in responsibility between males and females (OR = 0.99; 95% CI = 0.80–1.22).

There were non-statistically significant increases in unadjusted risk of responsibility for drivers with 0 < THC < 2 ng/ml (OR = 1.53; 95% CI = 0.93–2.60), for those with 2 ≤ THC < 5 ng/ml (OR = 1.59; 95% CI = 0.94–2.82) and for those with THC ≥ 5 ng/ml (OR = 2.29; 95% CI = 0.83–8.01). Unadjusted risks were increased in drivers with THC ≥ 2 ng/ml (OR = 1.72; 95% CI = 1.07–2.87; P = 0.03). After adjustment for age, sex and other impairing substances, none of these associations were statistically significant (Table 3, Fig. 2).

Sensitivity analyses that included only drivers with blood samples obtained within 1, 2 or 4 hours after the crash yielded comparable results. Additional sensitivity analyses with indeterminates coded as either responsible or nonresponsible did not find a statistically significant association between cannabis and responsibility. ORs were smaller when indeterminates were coded as responsible, and larger when they were coded as non-responsible.

With THC modelled as a continuous variable, there was a statistically significant but small increase in unadjusted risk for each 1 ng/ml increase in THC (OR = 1.13; 95%

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Figure 1 Study flow-chart

Table 1 Characteristics of 2318 drivers with crash reports.

Count (% of total)

All drivers n = 2318 (100%)

Age (years) Mean (SD) 44 (18) Range 16, 93 < 20 n = 107 (4.6%) 20–30 n = 553 (23.9%) 31–50 n = 809 (34.9%) > 50 n = 849 (36.6%) Male n = 1466 (63.2%) Health authority Vancouver Coastal n = 1402 (60.5%) Fraser n = 319 (13.8%) Interior n = 291 (12.6%) Vancouver Island n = 319 (13.8%) Crash type Single-vehicle crash n = 730 (31.5%) Night-time crash n = 859 (37.1%) SVNC n = 349 (15.1%) Admitted n = 596 (25.7%) Time from crash to blood draw (min) Mean (SD) 101 (64) Median (IQR) 84 (55) Within 60 min n = 557 (24.0%) 60–120 min n = 1206 (52.0%) 120–240 min n = 456 (19.7%)

Responsible n = 1178 (100%)

Non-responsible n = 647 (100%)

Indeterminate n = 493 (100%)

43 (18) 16, 93 n = 85 (7.2%) n = 308 (26.1%) n = 395 (33.5%) n = 390 (33.1%) n = 766 (65.0%)

46 (16) 17, 89 n = 11 (1.7%) n = 130 (20.1%) n = 242 (37.4%) n = 264 (40.8%) n = 397 (61.4%)

46 (18) 17, 93 n = 11 (2.2%) n = 115 (23.3%) n = 172 (34.9%) n = 195 (39.6%) n = 303 (61.5%)

n = 660 (56.0%) n = 161 (13.7%) n = 164 (13.9%) n = 161 (13.7%)

n = 413 (63.8%) n = 98 (15.1%) n = 79 (12.2%) n = 98 (15.1%)

n = 329 (66.7%) n = 60 (12.2%) n = 48 (9.7%) n = 60 (12.2%)

n = 564 (47.9%) n = 473 (40.2%) n = 283 (24.0%) n = 353 (30.0%)

n = 86 (13.3%) n = 233 (36.0%) n = 34 (5.3%) n = 134 (20.7%)

n = 80 (16.2%) n = 153 (31.0%) n = 32 (6.5%) n = 109 (22.1%)

100 (66) 81 (56) n = 311 (26.4%) n = 588 (49.9%) n = 222 (18.8%)

104 (63) 88 (54) n = 128 (19.8%) n = 356 (55.0%) n = 135 (20.9%)

98 (57) 85 (53) n = 118 (23.9%) n = 262 (53.1%) n = 99 (20.1%)

SD = standard deviation; SVNC = single-vehicle night-time crash; IQR = interquartile range. © 2019 The Authors. Addiction published by John Wiley & Sons Ltd on behalf of Society for the Study of Addiction

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Table 2 Prevalence of substance use in 2318 drivers with crash reports.

Count (% of total) Cannabis THC = 0 ng/ml 0 < THC < 2 ng/ml 2 ≤ THC < 5 ng/ml THC ≥ 5 ng/ml Alcohol BAC = 0% 0 < BAC < 0.08% BAC ≥ 0.08% Cannabis and alcohol 0 < THC < 2 ng/ml × BAC > 0% THC ≥ 2 ng/ml × BAC > 0% Other recreational drugs detectable Sedating medications detectable Any substance

All drivers n = 2318 (100%)

Responsible n = 1178 (100%)

Non-responsible n = 647 (100%)

Indeterminate n = 493 (100%)

n = 2126 (91.7%) n = 91 (3.9%) n = 79 (3.4%) n = 22 (0.9%)

n = 1056 (89.6%) n = 56 (4.8%) n = 50 (4.2%) n = 16 (1.4%)

n = 604 (93.4%) n = 21 (3.2%) n = 18 (2.8%) n = 4 (0.6%)

n = 466 (94.5%) n = 14 (2.8%) n = 11 (2.2%) n = 2 (0.4%)

n = 1984 (85.6%) n = 57 (2.5%) n = 277 (11.9%)

n = 920 (78.1%) n = 39 (3.3%) n = 219 (18.6%)

n = 614 (94.9%) n = 11 (1.7%) n = 22 (3.4%)

n = 450 (91.3%) n = 7 (1.4%) n = 36 (7.3%)

n = 24 (1.0%) n = 24 (1.0%) n = 207 (8.9%) n = 460 (19.8%) n = 886 (38.2%)

n = 21 (1.8%) n = 21 (1.8%) n = 139 (11.8%) n = 276 (23.4%) n = 574 (48.7%)

n = 1 (0.2%) n = 1 (0.2%) n = 34 (5.3%) n = 102 (15.8%) n = 164 (25.3%)

n = 2 (0.4%) n = 2 (0.4%) n = 34 (6.9%) n = 82 (16.6%) n = 148 (30.0%)

THC = Δ-9-tetrahydrocannabinol; BAC = blood alcohol concentration.

CI = 1.03–1.28; P = 0.03). However, after adjustment for other predictors, there was no statistically significant association between THC level and risk of responsibility (OR = 1.07; 95% CI = 0.98–1.20; P = 0.19) Drinking drivers had higher odds of being responsible for the crash and the risk increased with higher BAC levels.

The adjusted risk was OR = 6.00 (95% CI = 3.87–9.75) for drivers with BAC ≥ 0.08% (Table 3). In the model that included a cannabis and alcohol interaction, ORs for BAC > 0% and THC ≥ 2 ng/ml were 1.62 (95% CI = 0.34– 15.7) times larger when both substances were detected compared to the individual effects of alcohol and cannabis alone, but this interaction was not statistically significant (P = 0.58). We also found an increased adjusted risk of crash responsibility in drivers who tested positive for sedating medications (OR = 1.45; 95% CI = 1.11–1.91) and in drivers who tested positive for recreational drugs other than marijuana (OR = 1.82; 95% CI = 1.21–2.80) DISCUSSION We found no evidence of increased crash risk in moderately injured drivers with THC < 5 ng/ml. For drivers with THC ≥ 5 ng/ml there may be an increased risk of crash responsibility. The best estimate for crash risk in this group was OR = 1.74, but this finding was not statistically significant (P = 0.35). Our null findings for THC < 5 ng/ml are consistent with the recent Virginia Beach study, that also investigated non-fatal crashes, and found no evidence of increased risk in drivers with THC > 0 (adjusted OR = 1.0) [43,56]. However, unlike our study, the Virginia Beach study reported presence of THC in oral fluid and did not report crash risk at higher THC levels. We also found that drinking drivers (BAC > 0) who also used cannabis had a

higher risk (OR = 7.3 for 0 < THC < 2 ng/ml; OR = 6.8 for THC ≥ 2 ng/ml) than drinking drivers who did not use cannabis (OR = 4.2), but there was no statistically significant alcohol-cannabis interaction.

Our findings, of a low prevalence of drivers with THC > 5 ng/ml (0.9%), combined with a modest (OR = 1.74) and statistically non-significant risk of crash responsibility, suggest that the impact of cannabis on road safety is relatively small at the present time. However, it is possible that the impact may increase following cannabis legalization if more people drive after using cannabis, especially if this includes occasional users with less tolerance to the impairing effects of cannabis. It is also important to caution that the risk associated with cannabis may be higher in young drivers who have a high crash risk at baseline, or in inexperienced cannabis users who may be less able to compensate for cannabis-induced impairment.

Furthermore, our findings do not necessarily apply to fatal crashes where the association with cannabis may be stronger. A recent systematic review, which excluded low-quality studies, reported cannabis-associated risk separately for non-fatal crashes (OR = 1.74; 95% CI = 0.88–3.46) and for fatal crashes (OR = 2.1; 95% CI = 1.31–3.36) [30].

Our findings also suggest that the road safety risk associated with alcohol or with other impairing substances is higher than for cannabis, consistent with conclusions by Sewel et al. [25]. In our sample, 14.4% of drivers had been drinking and 11.9% had BAC > 0.08%. The relatively low prevalence of alcohol in this sample is probably explained by the effectiveness of BC traffic laws from 2010 that give police authority to impound the vehicles of drinking drivers at the roadside [65]. Consistent with previous research [66], we found a high risk of crash responsibility in

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© 2019 The Authors. Addiction published by John Wiley & Sons Ltd on behalf of Society for the Study of Addiction

1.82 (1.21, 2.80)** 1.45 (1.11, 1.91)**

1.83 (1.22, 2.80)** 1.46 (1.12, 1.91)**

2.41 (1.66, 3.61)*** 1.63 (1.28, 2.11)***

1.75 (0.37, 17.1) 1.62 (0.34, 15.7) 1.79 (1.20, 2.74)** 1.45 (1.11, 1.90)**

n = 22 (95.5%) n = 22 (95.5%) n = 173 (80.3%) n = 378 (73.0%)

1.93 (1.00, 4.04) 6.01 (3.88, 9.77)*** 4.18 (2.84, 6.34)***

1.93 (1.00, 4.04) 6.00 (3.87, 9.75)***

1.07 (0.98, 1.20)

0.94 (0.70, 1.26) 1.18 (0.87, 1.61) 1.60 (1.15, 2.25)**

2.37 (1.24, 4.89)* 6.64 (4.33, 10.71)*** 5.22 (3.63, 7.73)***

1.09 (0.63, 1.92) 1.16 (0.66, 2.13) 1.74 (0.59, 6.36)

1.53 (0.93, 2.60) 1.59 (0.94, 2.82) 2.29 (0.83, 8.01) 1.13 (1.03, 1.28)*

0.93 (0.69, 1.25) 1.20 (0.89, 1.64) 1.63 (1.17, 2.30)**

3.79 (2.05, 7.63)*** 1.18 (0.90, 1.55) 0.99 (0.79, 1.25) 0.99 (0.81, 1.23)

1.15 (0.92, 1.43)

0.99 (0.56, 1.79) 1.15 (0.67, 2.02)

0.93 (0.69, 1.25) 1.21 (0.89, 1.65) 1.63 (1.17, 2.30)**

1.03 (0.78, 1.36) 1.30 (0.97, 1.75) 2.12 (1.55, 2.94)***

3.98 (2.14, 8.14)*** 1.16 (0.88, 1.53) 1.00 (0.79, 1.26) 0.99 (0.80, 1.22)

1.14 (0.91, 1.43)

Model with interaction4

1.53 (0.93, 2.60) 1.72 (1.07, 2.87)*

4.00 (2.14, 8.17)*** 1.17 (0.89, 1.54) 0.99 (0.79, 1.25) 0.99 (0.80, 1.22)

4.73 (2.58, 9.56)*** 1.45 (1.12, 1.89)** 0.91 (0.72, 1.13) 1.17 (0.96, 1.43)

1.14 (0.91, 1.43)

Model with THC in ng/ml3

n = 1660 (63.6%) n = 77 (72.7%) n = 88 (75.0%) n = 1534 (60.0%) n = 50 (78.0%) n = 241 (90.9%) n = 291 (88.7%)

n = 637 (62.0%) n = 96 (88.5%) n = 438 (70.3%) n = 654 (59.6%) n = 1163 (65.9%) n = 1073 (61.5%) n = 259 (62.2%) n = 243 (67.5%) n = 250 (77.2%) n = 1660 (63.6%) n = 77 (72.7%) n = 68 (73.5%) n = 20 (80.0%)

OR (95% CI)

Adjusted model2

*P-value < 0.05; **P-value < 0.01; ***P-value < 0.001. THC = Δ-9-tetrahydrocannabinol; BAC = blood alcohol concentration. 1Separate logistic regression models for each explanatory factor. The intercept is not shown for these models.

2 Logistic regression with adjustment for age, sex, health authority, cannabis 1, alcohol 1, other recreational drugs and sedating medications. 3Logistic regression with adjustment for age, sex, health authority, cannabis 2, alcohol 1, other recreational drugs, and sedating medications. 4Logistic regression with adjustment for age, sex, health authority, cannabis 3, alcohol 2, cannabis 3 × alcohol 2, other recreational drugs and sedating medications.

Intercept Age, years (reference group = drivers aged 31 to 50 years) < 20 20–30 > 50 Sex: male versus female Health authority (ref: Vancouver Coastal) Fraser Interior Vancouver Island Cannabis 1 (ref: THC = 0 ng/ml) 0 < THC < 2 ng/ml 2 ≤ THC < 5 ng/ml THC ≥ 5 ng/ml Cannabis 2: THC (ng/ml) Cannabis 3 (ref: THC = 0 ng/ml) 0 < THC < 2 ng/ml THC ≥ 2 ng/ml Alcohol 1 (ref: BAC = 0%) 0 < BAC < 0.08% BAC ≥ 0.08% Alcohol 2: BAC > 0% versus BAC = 0% Cannabis 3 × alcohol 2 0 < THC < 2 ng/ml × BAC > 0% THC ≥ 2 ng/ml × BAC > 0% Other recreational drugs Sedating medications

Driver count (% responsible)

Unadjusted models1

Table 3 Unadjusted and adjusted risk estimates—this analysis includes the 1825 drivers with determinate responsibility scores; drivers with indeterminate scores (n = 493) were excluded from the analysis.

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Figure 2 Adjusted odds ratios. This figure shows the risk of crash responsibility for drivers with various ranges of Δ-9-tetrahydrocannabinol (THC) concentration or blood alcohol concentration (BAC). Risk estimates are adjusted for age, sex, health authority and presence of other impairing substances

drinking drivers (OR = 6.00 for BAC ≥ 0.08%). Sedating medications such as antihistamines or benzodiazepines, and recreational drugs such as cocaine, amphetamines or heroin, are known to impair the psychomotor skills required for safe driving [67,68]. In our study, more drivers tested positive for a sedating medication or for other recreational drugs than for THC, and we found statistically significant increases in responsibility risk in drivers who used recreational drugs other than cannabis (OR = 1.82) and in those who used sedating medications (OR = 1.45).

Interpreting risk estimates from responsibility studies hinges on how responsibility is defined. Modern responsibility studies assign responsibility by objectively scoring detailed crash information, and not according to legal liability [61,64]. Scoring is based on the paradigm of whether the driver should have been able to avoid the crash. In theory, non-responsible drivers are representative of other drivers on the road at the time of the crash and therefore have the same risk factor profile as roadside controls in a standard case–control study [69,70]. If this assumption is true, then responsibility studies should generate higher risk estimates than standard case–control studies [31]. Conversely, all drivers in a responsibility analysis failed to avoid crashing, making it likely that some control drivers (deemed non-responsible) contributed to the crash and should have been classified as cases, a misclassification that would produce lower risk estimates.

STRENGTHS AND LIMITATIONS Our study has several advantages over previous studies of cannabis and crash risk. We studied moderately injured drivers instead of focusing exclusively on fatal cases. We measured THC in blood (instead of urine or saliva), and obtained samples more than an hour sooner after the crash than previous responsibility studies. Responsibility was

determined by automatic computerized scoring of police reports, eliminating bias that could occur if reviewers were unblinded to toxicology results. Most importantly, because we had REB approval for waiver of consent, we avoided the bias common in standard case–control studies that could arise if drivers who used drugs were more likely to refuse participation.

Our study also has limitations. Although better than previous studies, we had an average delay of 101 minutes between crash and blood draw. In addition, despite a large sample size, only 20 drivers with determinant responsibility scores had THC > 5 ng/ml. Based on a priori power calculations, we would require 51 drivers with THC > 5 ng/ml to have 80% power to detect an OR of 2.5 or higher. Thus, we were underpowered to detect small increases in crash risk in this group of drivers. Although waiver of consent is a strength, the trade-off is that we were unable to interview or assess participants and do not know when they last used cannabis or whether they were impaired. In particular, some drivers with low THC levels may be chronic users who last used many hours previously [10,11] and/or have tolerance to some effects of THC [24,71]. This problem is less likely to be an issue for drivers with higher THC levels (>5 ng/ml), as THC in this range usually represents recent use [24,60]. Finally, our results apply to non-fatally injured drivers whose injuries were severe enough that they required bloodwork and the association between cannabis use and crash responsibility may be different for fatal crashes or property damage only crashes.

CONCLUSIONS In this multi-site observational study of non-fatally injured drivers we found no increase in crash risk, after adjustment for age, sex and use of other impairing substances, in

© 2019 The Authors. Addiction published by John Wiley & Sons Ltd on behalf of Society for the Study of Addiction

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drivers with THC < 5 ng/ml. For drivers with THC ≥ 5 ng/ml there may be an increased risk of crash responsibility (OR = 1.74), but this result was statistically non-significant and further study is required. With THC modelled as a continuous variable, there was a statistically significant but small increase in unadjusted risk for each 1 ng/ml increase in THC (OR = 1.13). However, after adjustment for other predictors, there was no statistically significant association between THC level and risk of responsibility. There was significantly increased risk in drivers who had used alcohol, sedating medications or recreational drugs other than cannabis.

Declaration of interests

12.

13.

14.

15.

16.

None.

17.

Acknowledgement This work was funded by the Canadian Institutes of Health Research (CIHR MOP-111002).

18.

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§9:04

Driving Under the Influence of Drugs

§9:5

Other DRE “Studies”

Compton, R. Field Evaluation of the Los Angeles Police Department Drug Detection Program.

Washington, DC: National Highway Traffic Safety Administration, 1986.

This is often referred to as the “LAPD study” or the “173 study.” It really was not a study. All suspects who were unimpaired were excluded from the reported data. Hence, there is no way to calculate the number of true negatives or false positives.

This study was not peer reviewed or published.

Hardin, GG, et al. Minnesota Corroboration Study: A Comparison of DRE Opinions in Toxicology Findings. 1993.

In this “study,” the police compared toxicology reports with DRE opinions. However, they did not collect samples from those deemed unimpaired or those who refused chemical tests. Like the LAPD study, there is no way to calculate true negatives or false positives because that data was not reported.

This study was not peer reviewed or published.

Bigelow, G.E., Bickel, W.K., Roache, J.D., Liebson, I.A. & Nowowieski, P., Identifying Drug Intoxication: Laboratory Evaluation of a Subject-Examination Prcedure. NHTSA, 1985 (DOT HS 806 753).

The subjects in this study were 80 adult males with no history of significant drug use other than marijuana.

The dosages of drugs given to the subjects were well above therapeutic levels. The officers were able to interview the test subjects prior to performing their evaluations. Also, the test subjects were evaluated on more than one occasion by the same officers.

This is commonly referred to as the “Johns Hopkins study” though it was never peer-reviewed. It is merely a report. Here are some of the key points regarding this study: • Participants dosed with drugs were not chronic users.

• It was a double-blind study.

• Three categories of drugs were evaluated: marijuana, depressants, and stimulants.

• The study did not evaluate hallucinogens, PCP, inhalants, or narcotic analgesics.

• DREs were told what types of drugs were used.

• Large amount of drugs were given to people who normally do not take that particular drug.

• Of those who failed the DRE evaluation, 144 had been dosed with a drug and 13 had been given no drugs.

• Of those who passed the DRE evaluation, 125 had been dosed with a drug and 38 had been given no drugs.

• Forty-six percent of those given the drug passed the DRE. • Twenty-five percent of those not drugged failed DRE (false positive).

Heishman, S., Singleton, E. & Crouch, D., “Laboratory Validation Study of Drug Evaluation and Classification Program: Ethanol, Cocaine, and Marijuana,” Journal of Analytical Toxicology, Vol. 20 (Oct 1996) Prior to evaluating a test subject, the DRE officers were told that the subjects might have been given alcohol, marijuana, a depressant, a narcotic, a stimulant, PCP, a combination, or nothing at all. No pre-test interview was given.

The study had a very high false positive rate. Forty-one percent of the subjects who were given a placebo were found to be impaired by the DRE. With regards to cocaine, the DREs did a terrible job at predicting impairment. Thirty-six subjects were dosed with cocaine. The DREs identified 31 of them as unimpaired by a stimulant. Eighteen were given a placebo. Three of them were incorrectly identified as being impaired by a stimulant.

DUI DRUGS

Adler, Eugene & Burns, Marcelline. Drug Recognition Expert (DRE) Validation Study: Final Report to Governor’s Office of Highway Safety. State of Arizona, 1994.

This “study” involved the review of 500 DRE assessment sheets. No information was included regarding those subjects who were deemed unimpaired.

Forty-two percent of those who failed the DRE exam—i.e., were deemed to be under the influence of a drug—had no drug present in their urine.

This study was not peer reviewed or published.

Texas DWI 9-6 Manual The results were not any better when it came to predicting impairment by marijuana. Thirty-six subjects were dosed with marijuana. The DREs predicted no marijuana in 17 of them. Of the 18 given a placebo, six were incorrectly classified as impaired by marijuana.

This study was peer reviewed and published. It was funded by NHTSA.

DUI DRUGS

§9:02

“Laboratory Validation Study of Drug Evaluation and Classification Program: Alprazolam, d-Amphetamine, Codeine and Marijuana,” Heishman, S., Singleton, E. & Crouch, D., Journal of Analytical Toxicology, Vol. 20 (Oct 1998) This study sought to examine the ability of DREs to identify and distinguish impairment from four classes of drugs: CNS depressant, stimulant, narcotic, and marijuana. As in the previous study, the DREs were told that test subjects could be dosed with alcohol, any of the four noted drug classes, a combination, or nothing at all.

Overall, dosed subject examinations totaled 187. Of those, 102 were predicted to be unimpaired. Twenty-seven subjects given placebos were incorrectly classified as impaired.

Alprazolam: 46 doses were administered. Alprazolam was not predicted in 11. Of the 24 placebos administered, nine were incorrectly classified as impaired on alprazolam.

Amphetamine: 48 doses were administered. Amphetamine was not predicted in 34. Of the 24 placebos administered, five were incorrectly classified as impaired on amphetamine.

Codeine: 47 doses were administered. Codeine was not predicted in 33. Of the 23 placebos administered, four were incorrectly classified as impaired on codeine.

Marijuana: 46 doses were administered. Marijuana was not predicted in 24. Of the 22 placebos administered, nine were incorrectly classified as impaired on marijuana.

This study was peer reviewed and published. It was funded by NHTSA. Shinar, D. & Schechtman, E., “Drug Identification Performance on the Basis of Observable Signs and Symptoms,” Accident Analysis and Prevention 37 (2005) 843-851 This was a double-blind study conducted to evaluate how well police officers were able to detect drug impairment and identify the drugs they believed responsible for the impairment. The officers were only able to observe signs and symptoms, and they could not interview the test subjects. Here are some of the key points regarding this study: • Fifty-four subjects participated, but not all completed the study. No explanation was given as to why they dropped out.

• Three hundred observations were made—either codeine, Xanax, amphetamine, or THC. No information is provided on how many observations of each circumstance were made.

• Thirty-nine officers participated; no information is provided on who did what.

• Of participants given only a placebo, the officers determined 44 were unimpaired and 58 were impaired.

• Of participants given a drug, the officers determined 55 were unimpaired and 143 were impaired.

• The rate of false positives was 72%.

• The rate of false negatives was 28%.

• The ability to identify unimpaired subjects correctly was 43%.

• The percentages of subjects who were correctly identified as having been given a particular drug were: THC, 30%; depressant, 43%; narcotic, 36.7%; stimulant, 8.8%; placebo, 43%.

• Overall, the study found high false positive rates and a poor record of identifying impairment and specifying an impairing substance.

Dary Fiorentino, Ph.D., Samuel W. Evans, Grand Blanc Township Police Department (Michigan),Thomas E. Page, Los Angeles Police Department (Retired), “The Usefulness of SFSTs in Detecting Drugs Other Than Alcohol - Final Report”, DF Consulting (June 18, 2020)

This is not a peer-reviewed study.

“The objective of the study was to determine whether the three standardized field sobriety tests (HGN, WAT and OLS), alone and in combination, can detect impairment caused by drugs other than alcohol” (page 2 of 82). Data was collected from arrestees selected at random while they waited for processing at a jail facility. In other words, these participants had been evaluated, investigated and arrested by police officers on the street. Their criminal offenses were not included.

Participants were brought into a jail facility for an arrest (not necessarily driving related) and they were approached and asked to participate in the study. 527 arrestees out of 624 agreed to participate (data was collected

9-7 Driving Under the Influence of §9:7 from 10/30/2018 to 5/6/2019). This is the same process for the DRE field evaluations in a DRE student course. The Drugs participants (524 out of 624) agreed to answer questions, perform tests and provide a urine sample. Initially if the urine screen was positive for THC, a saliva test was administered. Later the saliva test was determined to be “not accurate”. The voluntary urine screen looked at 5 of the 7 DRE drug categories including CNS Depressants, CNS Stimulants, Hallucinogens, Narcotic Analgesics and Cannabis. There was no data as to who was taking prescribed medication that may have resulted in a positive for one of these categories.

527 participated but urine was only available from 524 participants, HGN from 527, WAT from 524 and OLS from 525. There was no explanation for the discrepancy. for the numbers. Researchers also administered 527 HGN tests but stated they had only 524 participants (page 3 of 82).

The results were recorded as follows: o HGN alone was above chance for all drug categories with the exception of THC. o WAT alone had an above chance for marijuana, CNS Stimulants and any combination of one or more drugs. o OLS alone had an accuracy above chance for cocaine, marijuana, CNS depressants, CNS stimulants, and any combination of one or more drugs.

We don’t know how many of the participants were impaired by drugs or how many of the participants take the drug (medication) for their health. The study does discuss its limitations, one of which was a very high prevalence of drugs and a faulty saliva test.

RTI International, “Field Sobriety Tests and THC Levels Unreliable Indicators of Marijuana Intoxication”, National Institute of Justice (April 5, 2021)

This is not a peer-reviewed study.

The researchers investigated how marijuana affects skills required for safe driving and found that biofluid levels of THC did not correlate with field sobriety test performance or marijuana intoxication, regardless of how cannabis was ingested. The hope of the researchers was that their work will inform policy for cannabis impairment and driving under the influence of drugs and help establish scientifically-based thresholds for marijuana intoxication (Page 3 of 5).

The researchers (RTI) held six double-blind clinical dosing sessions with the THC ingested either orally or vaporized at known levels. The participants either ate cannabis brownies (0, 10mg and 25 mg) or inhaled vapor (0, 5mg and 20 mg). The dosing sessions were at least one week apart. The study looked at cognitive and psychomotor performances tests, which are not currently used by law enforcement for determining marijuana intoxication. The tests used were: 1. paced serial addition test 2. digital symbol substitution test 3. divided attention test and 4. tasks 1-4 from the DRUID IOS smartphone app. The SFSTs were also used (researchers point out these are alcohol tests) including the OLS, W&T, modified Romberg balance and eye tracking for nystagmus and pupillary response. The researchers also observed that standardized field sobriety tests commonly used to detect driving under the influence of drugs or alcohol were not effective in detecting marijuana intoxication (page 3 of 5), which is the opposite of what the “The Usefulness of SFSTs in Detecting Drugs Other Than Alcohol” reports.

§9:05

Contact Information Regarding the DEC Program

In the State of Texas, the training program is federally funded through a grant provided by the Texas Department of Transportation. Administration of the program is conducted by Sam Houston State University—George J. Beto Criminal Justice Center. For more information about the Texas DRE Program, contact Cecelia Marquart, State Coordinator, at (936) 294-1677 or Diane Clark at (936) 294-4579 or email the DRE Office at DRE@shsu.edu. [§§9:06-9:09 Reserved]

9-21

• •

Driving Under the Influence of §9:21 Drugs wide ranges of drug concentrations in different individuals have been associated with equivalent levels of impairment).

Accumulation (blood levels of some drugs or their metabolites may accumulate with repeated administrations if the time-course of elimination is insufficient to reduce or remove the drug or metabolite before the next dose is administered).

Acute versus chronic administration (it is not unusual to observe greater impairment during initial administrations of drugs than is observed when the drug is administered over a long period of time).

At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment. (Emphasis added)

§9:39

The Usefulness of SFST’s in Detecting Drugs Other Than Alcohol

Fiorentino, D. Evans, S.W. & Page, T.E. (2020) The Usefulness of SFST’s in Detecting Drugs Other Than Alcohol (Final Report), Van Nuys, CA: DF Consulting. [§§9:40-9:49 Reserved]

DUI DRUGS

This study attempted to determine the usefulness of HGN, WAT, and OLS, alone and in combination, in detecting impairment caused by drugs other than alcohol. The data was collected from arrestees selected at random while they awaited processing. In another words, they were already arrested and not necessarily for an impaired driving offense. The final report was written by Dary Fiorentino, Ph.D. of DF Consulting, Samuel W. Evans of the Grand Blanc Township (Michigan) Police Department, and Thomas Page, M.A. Los Angeles Police Department (Retired). It was submitted on June 18, 2020.

• Data was collected at the Genesee County Jail in Flint, Michigan. Data from 527 arrestees was collected (generally) between 8 pm and 5 am from 10/30/2018 to 5/6/2019. This raises a question: How many were arrested for impaired driving and did the officers know what they were arrested for before testing?

• Law enforcement officers trained in SFSTs were the administrators of the three SFSTs in accordance with NHTSA guidelines.

• The Lifeloc FC10 was used to measure the participants breath alcohol concentration and a one-step multi drug urine screen was used to detect the drugs.

• The study looked at Urine for Amphetamine 300 ng/ml; Barbiturates 300 ng/ml; Benzodiazepines 300 ng/ml; Buprenorphine 10 mg/ml; Cocaine 300 ng/ml; Ecstasy 500 ng/ml; Marijuana 50 ng/ml; Methadone 300 ng/ml; Methamphetamine 1000 ng/ml; Morphine 300 ng/ml; Oxycodone 100 ng/ml; Phencyclidine 25 ng/ml • Five DRE drug categories were covered including CNS Depressants, CNS Stimulants Hallucinogens, Narcotic Analgesics and Cannabis. The study also stated on page 7 that “Note that a urine test positive for any drug does not necessarily indicate recent use or psycho activity.”

• When a urine screen was positive for THC, a saliva screen test was also administered. There were no positive results for marijuana in the saliva test. According to the researchers this was unexpected and a limitation to the study. Because the saliva tests were deemed inaccurate, no further analysis was conducted using them (See table 21.)

• The report admits HGN alone had an overall accuracy above chance for all drug categories except marijuana.

• WAT alone had an overall accuracy rate above chance for marijuana, CNS Stimulants, and any one or more drugs.

• OLS alone had an overall accuracy rate above chance for cocaine, marijuana, CNS Stimulants, CNS Depressants, and any one or more drugs.

• The study states on page iii, “Although the study has some limitations, including a very high prevalence of drugs, and especially a faulty saliva test, it did provide evidence that the SFSTs can be used to detect impairment caused by drugs other than alcohol.”

• There’s no indication as to how many participants in the study were deemed “drug impaired” on arrest and how many were arrested and not deemed to be impaired by the arresting officer.

§9:38

V.

Texas DWI Manual

9-22

DRUG RECOGNITION EXPERTS

§9:50

Training Curriculum

The DEC program provides certification for police officers and other government officials as purported drug recognition “experts” or drug recognition “evaluators” (DRE’s) through a three-phase training curriculum that includes the following: • The DRE pre-school (16 hours).

• The DRE expert school (56 hours).

• DRE field certification (approximately 40 hours).

The DRE curriculum is intended to provide a standardized, systematic approach toward evaluating individuals suspected of being impaired by drugs other than alcohol. This same curriculum relies heavily and builds upon the Standardized Field Sobriety Tests (SFSTs), which provide the foundation for the DEC Program.

After completing the DRE training and obtaining certification, DREs can testify as experts in the detection and identification of persons impaired or affected by alcohol and/or drugs. Each DRE is trained to conduct a standardized and systematic 12-step evaluation [see §§9:10-9:22] consisting of physical, mental and limited medical components.

DUI DRUGS

§9:50.1

The ARIDE Program

The National Highway Traffic Safety Administration (NHTSA) developed the Advanced Roadside Impairment Driving Enforcement (ARIDE) program with help from the International Association of Chiefs of Police (IACP), Technical Advisory Panel (TAP), and the Virginia Association of Chiefs of Police. ARIDE was created and is referred to as the “gap” in training between the NHTSA SFST and the DRE programs.

The NHTSA SFST program is an alcohol-based law enforcement-training program that teaches the officers to identify drivers suspected to be under the influence of alcohol only (above or below 0.08) while the DRE program is designed to determine if the suspected impairment is from something other than alcohol. Neither program has been peer reviewed or published.

If the DRE’s are supposed to be “Drug Recognition Experts”, those who complete the ARIDE program must be the Drug Recognition amateurs. Below is a summary of the ARIDE training program: ARIDE is a 16-hour (2 day) course that is taught by DRE Instructors (law enforcement). The course can also be used as an SFST Update in Texas. The ARIDE course is broken down into eight sessions: • Introduction and Overview of Drugs and Highway Safety.

• SFST Update and Review.

• SFST Proficiency Examination.

• Human Physiology and Effect of Drugs on Driving Behavior.

• Observations of Eyes and Other Sobriety Tests to Detect Alcohol and Drug Impairment.

• Seven Drug Categories.

• Effects of Drug Combinations.

• Pre and Post Arrest Procedures.

Officers are required to: • Be SFST proficient.

• Submit proof reflecting completion of the two- hour SFST course.

• Pass an SFST Proficiency and Course Assessment.

Curriculum Session 1 discusses drugs and drug impaired driving and highway safety: • Goals and objectives for course.

• Elements of the drug problem.

• Impaired driving enforcement programs.

• Roles and responsibilities of the DRE and how the ARIDE course supports the DRE program.

9-23 •

Driving Under the Influence of Drugs

§9:50.1

Defining the term drug in the context of traffic safety and impaired driving enforcement as referenced in the DECP (Drug Evaluation and Classification Program/DRE).

Session 2 is a review of the SFSTs including the studies: • SFST validation studies.

• Define and describe SFSTs. • Define nystagmus and distinguish between the different types.

• Properly administer the SFSTs. • Recognize and document indicators of the three SFSTs. • Identify the limitations of the SFSTs. Session 3 is the SFST Proficiency in which the student is given two opportunities to pass the NHTSA/IACP proficiency exam: • Demonstrate knowledge and proficiency in administering the SFSTs.

Session 5 discusses observations of the eyes and other sobriety testing techniques used by law enforcement at roadside: • HGN and VGN and how to properly administer them and describe what the results indicate.

• Lack of convergence and how to administer properly and describe what the results indicate.

• Discuss difference in pupil size.

• Discuss Modified Romberg Balance Test and how to administer and interpret it.

• Explain the relationship between eye examinations and the seven drug categories.

Session 6 discusses the seven drug categories and how they affect the human body and what the officer may observe: • Common drug names and terms associated with the drug categories.

• Common methods of ingestion for each drug category.

• General indicators of impairment associated with each drug category.

Session 7 discusses possible combinations of drugs that are the most commonly seen by law enforcement and what the indicators may be: • Prevalence of drug and alcohol use both individually and in combination as poly drug use.

• Define poly drug use.

• Discuss possible effects of poly drug use related to the general indicators of alcohol and drugs.

Session 8 discusses pre and post arrest procedures and how to prepare for the prosecution of the drug and alcohol impaired driver: • Three phases of the detection process (three phases of DWI detection).

• Roadside interview techniques.

• Elements of the DUID offense.

• Indicators of impairment observed during the three phases of detection.

• Accurately document observed impairment in each of the three phases of the DWI detection process.

• Identify additional resources to support prosecution.

• Articulate relevant evidence as it relates to case preparation and prosecution.

The student must successfully complete both the written final exam by scoring 80% or better and the drugged driving scenarios.

DUI DRUGS

Session 4 discusses the physiology of the human body and how driving behavior is affected by the use of drugs: • Discuss the major systems in the human body as they relate to observable signs.

• Identify methods of ingestion and general effects of drugs.

• Identify medical conditions that may mimic alcohol and drug impairment.

• Identify the seven drug categories as referenced in the DECP and the basis for dividing drugs into these specific groups.

The author(s) shown below used Federal funding provided by the U.S. Department of Justice to prepare the following resource: Document Title:

Differences in Cannabis Impairment and its Measurement Due to Route of Administration

Author(s):

Megan Grabenauer

Document Number: 255884 Date Received:

December 2020

Award Number:

2016-DN-BX-0193

This resource has not been published by the U.S. Department of Justice. This resource is being made publically available through the Office of Justice Programs’ National Criminal Justice Reference Service.

Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

Differences in Cannabis Impairment and its Measurement Due to Route of Administration

Final Summary Overview

Submitted to: U.S. Department of Justice Office of Justice Programs National Institute of Justice 810 Seventh St., NW Washington, DC 20531 Prepared by: Megan Grabenauer (PI) RTI International 3040 Cornwallis Road Research Triangle Park, NC 27709-2194 March 31, 2020 Administrative Point of Contact: Jackie Wilson jwilson@rti.org Phone: 919-541-5865 NIJ Award No. 2016-DN-BX-0193 RTI Project No. 0215514

This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

Contents Purpose

1

Project Design

1

Clinical Dosing Sessions ........................................................................................................................... 1 Biofluid Analysis ...................................................................................................................................... 2 Eye Tracking ............................................................................................................................................. 3 Results

3

Subjective .................................................................................................................................................. 3 Cognitive and Psychomotor ...................................................................................................................... 4 Biofluid ..................................................................................................................................................... 4 Eye Tracking ............................................................................................................................................. 8 Scholarly Products

9

Implication for Policy and Practice

10

Appendix

11

This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

Purpose Current laws regarding cannabis impairment are either difficult to prosecute or are controversial. Currently, most law enforcement use a combination of biological and behavioral assessments administered by drug recognition experts (DREs) and blood THC levels, with cutoffs ranging from 1 to 5 ng/mL, to judge cases of suspected Driving Under the Influence of Drugs (DUID) involving cannabis. However, the behavioral assessments have not been explicitly developed to be sensitive for detecting acute intoxication from cannabis, and there are significant limitations to the use of blood THC levels as a proxy for acute intoxication. Also, though smoking remains the most common route of cannabis administration, cannabis is increasingly available in a wide array of “edibles” intended for oral ingestion and there has been a substantial increase in the use of vaporizers to inhale cannabis products. The purpose of this project was to better define the pharmacokinetics and associated pharmacodynamics of cannabis administered via vaporization and oral consumption in order to evaluate methods of determining whether or not an individual under the influence of cannabis is impaired.

Project Design The project consisted of a comprehensive evaluation of acute dose effects for cannabis administered via vaporization and oral administration. This was achieved using a combination of behavioral and performance evaluations and forensic toxicology testing (blood, urine, and oral fluid) following controlled administration of known doses of cannabis.

Clinical Dosing Sessions Clinical dosing sessions were completed at Johns Hopkins University (Baltimore, MD) under approved Institutional Review Board protocols for research with human subjects. Twenty individuals who had not used cannabis for at least 30 days participated in six, double-blind, experimental sessions each that were separated by at least one week. Across all six sessions each

1 This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

participant consumed cannabis brownies containing 0 (placebo), 10, or 25 mg THC or inhaled vaporized cannabis containing 0 (placebo), 5, or 20 mg THC. Samples of blood, oral fluid, and urine were collected during each session. Subjective, cognitive, and psychomotor effects were assessed before cannabis administration (baseline) and for 8 hours thereafter at 0, 1, 2, 3, 4, 5, 6, and 8 hours after all doses. Oral fluid was collected at baseline, 0, 1, 2, 3, 4, 5, 6, and 8 hours after all doses. Urine was collected at baseline, 1, 2, 3, 4, 5, 6, and 8 hours after all doses. Blood was collected at baseline, 0, 1, 2, 3, 4, 6, and 8 hours after vaping doses and baseline, 1, 2, 3, 4, 5, 6, and 8 hours after oral doses. Cognitive and psychomotor tests administered included the paced serial addition test (PSAT), digit symbol substitution test (DSST), divided attention test (DAT), and tasks 1-4 from the DRUID iOS app. In addition, several field sobriety tests were administered including one leg stand, walk and turn, modified Romberg balance, and eye tracking for nystagmus and pupillary response.

Biofluid Analysis Blood, oral fluid, and urine samples were sent to commercial laboratories for targeted LC-MS/MS analysis. Blood and oral fluid were analyzed by Immunalysis (Pomona, CA). Urine was analyzed by Clinical Reference Laboratory (Lenexa, KS). Analytes targeted for each matrix were as follows: Blood – THC, THC-COOH, 11-OH-THC, CBD, and CBN; Oral fluid – THC, THC-COOH, CBD, and CBN; Urine –THC, THC-COOH, delta8-THC, delta8-THC-COOH, THCV, THCV-COOH, 8-OH-THC, 11-OH-THC, 8,11-diOH-THC, CBD, and CBN. Blood samples also underwent an exploratory screen at RTI for possible new biomarkers of impairment using non-targeted high-resolution mass spectrometry. The extraction method for the non-targeted assay was intentionally generic in order to not bias results. Blood (250 µL) was combined with 1,000 µL of acetonitrile containing aripiprazole-d8, dexthorphan-d3, doxepin-d3, and phenobarbital as internal standards. Samples were thoroughly mixed then centrifuged at

2 This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

3,220 RCF for 5 min. The supernatant was dried under nitrogen at 40 ˚C and reconstituted in starting UHPLC mobile phase composition (90:10 H2O:15% methanol in acetonitrile) prior to reversed phase UHPLC using a Waters HSS-T3 column (1.8 µm, 2.1x100 mm). Samples were analyzed using a Waters Synapt QTOF using the MSE acquisition mode.

Eye Tracking Eye movements were recorded using a DAX evidence recorder (Ocular Data Systems, Pasadena, CA) that was stationary on a desk in front of the participants. For all tests, the videos were first cropped to isolate each eye, and each eye was analyzed separately. For each frame, intensity values were adjusted such that 50% of the data was saturated at the highest intensity values, a bounding box was applied and the image thresholded, and pupil location was estimated based on number and location of dark pixels. After completing center tracking for both eyes, a time series of the x-center coordinates was formed, and the median value subtracted such that the signal was approximately centered around zero. Values above and below a certain threshold were removed (i.e., these were times when a feature such as the eyelashes were confused with the pupil). Then, blocks of 10 or more pixels where the x-center coordinate did not change were removed (i.e., this occurred during blink events and other times when the algorithm was not able to correctly identify the pupil).

Results Subjective Subjective drug effects were generally dose-orderly within each route of administration with peak effects being lower and delayed after oral ingestion compared to vaporized cannabis inhalation. Peak subjective effects generally occurred between 3-5 hours after oral dosing and 01 hour after vaped dosing. The THC doses administered mainly produced positive effects and were not unpleasant to participants.

3 This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

Cognitive and Psychomotor Working memory (PSAT), psychomotor functioning (DSST), and divided attention (DAT) were all negatively impacted after use of the high oral (25 mg THC) and vaporized (20 mg THC) doses. Oral dosing of 10 and 25 mg, and 20 mg vaporized THC doses impaired cognitive and psychomotor performance, but 5 mg vaporized cannabis produced discriminative drug effects with minimal impairment. After vaping, working memory (PSAT) and balance were affected immediately, whereas psychomotor functioning (DSST) and divided attention (DAT) performance were not significantly impacted until 1 hour after dosing. Peak effects were generally seen between 0 and 2 hours post dosing and performance returned to baseline levels by the 4 hour timepoint. After oral administration, cognitive and psychomotor performance were not impacted until 1 hour after dosing. Peak effects were generally seen around 5 hours post dosing (except for balance - which had a peak effect at 3 hours), and it remained elevated at the 6 hour timepoint, and returned to near baseline performance levels by 8 hours post dosing. One leg stand, walk and turn, and modified Romberg balance field sobriety tests, which are part of a battery of tests administered to detect alcohol impairment, were not sensitive to cannabis intoxication. Each field sobriety test is scored based on whether pre-defined clues are observed during the test. For example, stepping off the line or taking an incorrect number of steps for the walk and turn, or hopping or putting foot down during the one leg stand. There was no apparent difference in the rate of clue detection between oral administration and vaporized cannabis for any of the field sobriety tests.

Biofluid Pharmacokinetic measures indicate target compound profiles are dose-orderly and route dependent. Target compound profiles in blood and oral fluid were similar. For both matrices, THC, CBD, and CBN were higher after vaping than after oral consumption. Conversely, THC-

4 This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

COOH and 11-OH-THC were higher after oral consumption than vaping. Much higher levels of CBD and CBN were seen in oral fluid than in blood. Very high levels of THC were detected in oral fluid immediately after dosing for both routes of administration. Some of this is likely due to contamination of the mouth by the dose itself. Of all the analytes tested in oral fluid, THC had the highest concentrations after both routes of administration. Of all the analytes tested in blood, THC had the highest concentrations after vaping and THC-COOH had the highest concentrations after oral administration.

In urine, carboxy and hydroxy metabolites were present at higher concentrations than their parent cannabinoids. Peak cannabinoid concentrations were at 1 to 2 hours post vaped dosing and 3 to 4 hours post oral administration dosing. Peak metabolite concentrations were at 2 to 4 hours post vaped dosing and 4 to 6 hours post oral administration dosing. None of the targeted analytes in any biological sample correlated well with impairment measures for either route of administration. Detailed results for each targeted analyte are given below.

After vaping 20 mg of THC, peak average THC concentrations were approximately 40 ng/mL in blood (tmax = 0 hour), 1,000 ng/mL in oral fluid (tmax = 0 hour), and 12 ng/mL in urine (tmax = 1 hour). After oral administration of 25 mg of THC, peak average THC concentrations were approximately 3 ng/mL in blood (tmax = 2 hours), 125 ng/mL in oral fluid (tmax = 0 hour), and 5 ng/mL in urine (tmax = 4 hours).

After vaping 20 mg of THC, peak average 11-OH-THC concentrations were approximately 1.5 ng/mL in blood (tmax = 0 hour), and 100 ng/mL in urine (tmax = 2 hours). After oral administration of 25 mg of THC, peak average 11-OH-THC concentrations were approximately 3 ng/mL in blood (tmax = 2 hours) and 150 ng/mL in urine (tmax = 4 hours).

5 This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

After vaping 20 mg of THC, peak average THC-COOH concentrations were approximately 5 ng/mL in blood (tmax = 1 hour), and 40 ng/mL in urine (tmax = 4 hours). THCCOOH was detected in oral fluid of only one participant. Maximum concentrations for placebo and active vaped dosing sessions were less than 0.10 ng/mL. After oral administration of 25 mg of THC, peak average THC-COOH concentrations were approximately 15 ng/mL in blood (tmax = 4 hours) and 125 ng/mL in urine (tmax = 6 hours). THC-COOH was detected in oral fluid of only three participants. Two had maximum THC-COOH concentrations near 50 ng/mL and one had maximum THC-COOH concentration near 0.1 ng/mL. After vaping 20 mg of THC peak average CBD concentrations were approximately 50 ng/mL in oral fluid (tmax = 0 hour), and 3 ng/mL in urine (tmax = 2 hours). In blood CBD was detected in only 5 active dosing timepoints across 5 participants with peak concentrations near 10 ng/mL (tmax = 0 hours). After oral administration of 25 mg of THC peak average CBD concentrations were approximately 1 ng/mL in urine (tmax = 3 hours). CBD was detected in blood from only one participant with a maximum concentration of 7 ng/mL and at low concentrations (1 ng/mL) in oral fluid from only 3 participants.

After vaping 20 mg of THC peak average CBN concentrations were approximately 2 ng/mL in blood (tmax = 0 hours), 75 ng/mL in oral fluid (tmax = 0 hours), and 1.5 ng/mL in urine (tmax = 1 hours). After oral administration of 25 mg of THC peak average THC concentrations were approximately 0.5 ng/mL in blood (tmax = 2 hours), 25 ng/mL in oral fluid (tmax = 0 hours), and 20 ng/mL in urine (tmax = 3 hours).

Delta8-THC was not detected in any urine samples; however, delta8-THC-COOH was detected at low concentrations in samples from 5 participants after the high dose oral administration (peak concentration 6 ng/mL at 5 hours). 8-OH-THC was not detected in any

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urine samples; however, 8,11-diOH-THC was detected in samples from both routes of administration. After vaping 20 mg of THC, peak average 8,11-diOH-THC concentrations were approximately 10 ng/mL (tmax = 2 hours). After oral administration of 25 mg of THC peak average 8,11-diOH-THC concentrations were approximately 60 ng/mL in urine (tmax = 5 hours).

After vaping 20 mg of THC peak average THCV concentrations were approximately 1 ng/mL (tmax = 1 hour). THCV was not detected in urine samples after oral administration doses.

After vaping 20 mg of THC peak average THCV-COOH concentrations were approximately 6 ng/mL in urine (tmax = 2 hours). After oral administration of 25 mg of THC peak average THCVCOOH concentrations were approximately 20 ng/mL in urine (tmax = 5 hours).

Progensis QI software was used to align and peak pick non-targeted data acquired from blood samples in positive and negative ionization modes. Data were compared by subject, dose, and route of administration to gather information on candidate ions that may be of interest for determining cannabis impairment. A potential target candidate list was generated consisting of approximately 4,500 individual components. Statistical analysis and correlation of these components to the subjective, cognitive, and psychomotor assessments administered were completed using a mixed effects model.

From these analyses, a narrowed potential target compound list was created consisting of the components with the five highest effect sizes for each assessment, components that were among the top 25 effect sizes for three or more assessments, and components that had a DRUID total impairment score effect size greater than positive 1. Based on these criteria 165 potential targets were included for oral administration and 152 potential targets were included for the vaporization administration. This subset of potential target compounds was prioritized for identification. Using m/z values and retention times the subset was searched against several

7 This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

databases using the Progensis QI software. Between 50 and 75 potential targets across the doses and ionization modes had hits for tentative identifications that had M+H, M+Na, M+H-H2O, MH, or M-H2O within 5 ppm of the observed m/z. This subset was then evaluated to determine if there were potential candidate compounds that should be investigated further. Several endocannabinoids and prostaglandins were among the tentative identifications made. Further investigation of some of the tentative identifications is needed such as reviewing fragmentation patterns and acquiring standards and checking their retention times to those of the extracted blood samples. An example of some of the molecular formulas of interest that lack a tentative identification in positive ionization are C20H30O2C18H35NO2 and C20H37NO2. An example of a molecular formula identified in negative ionization is C20H34O5. One component of interest is a compound with the same accurate mass as CBN that eluted prior to the reference standard retention time.

Eye Tracking Algorithms were developed that successfully identified nystagmus and pupillary responses to light. For horizontal gaze nystagmus and convergence tests, the center of the pupil location was tracked via the x and y pixel location. Nystagmus was detected from the time series of the x-center coordinates. Processed eye tracking videos were interpolated to the original frame rate and filtered to highlight when nystagmus was present (blue trace) compared to absent (red trace). Filtering also served to distinguish nystagmus (blue trace) from noisy tracking (green trace) where peaks occur at a much higher frequency. Peaks were noted in the filtered signal, and only certain peaks above a threshold were retained. Nystagmus was detected when there were

8 This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

several peaks occurring within a short time frame. Automated nystagmus analysis agreed well with DRE determined nystagmus.

For delayed constriction and rebound dilation tests, the size of the pupil was estimated rather than the position. The approximate center was identified and a series of horizontal lines sweeps were then analyzed in the region of the estimated center. For each sweep, the beginning and end of the pupil are indicated by a large slope in pixel intensity values. The exact time of the light being turned on was determined based on the abrupt change in the mean intensity level of the entire image. The constriction time was computed as the time between the light being turned on and the time that the pupil diameter was within 2 pixels of the minimum size. Rebound dilation was indicated by an increase in pupil diameter of at least 10% after maximum constriction.

Scholarly Products Grabenauer M, Vandrey R, Spindle T. “Differences in Cannabis Impairment due to Route of Administration” Presented at Pittcon. March 17-21, 2019 Philadelphia, PA. Martin E, Spindle T, Grabenauer M, Vandrey R “Assessment of Impairment Following Oral and Vaporized Cannabis Use in Infrequent Users: Preliminary Results.”

Poster presented at Cannabis Science Conference. April 8, 2019, Baltimore MD. Spindle T, Grabenauer M, Martin E, Vandrey R “Assessment of Impairment Following Oral and Vaporized Cannabis Administration in Infrequent Cannabis Users.”

Presented at College on Problems of Drug Dependence (CPDD). June 15-19, 2019 San Antonio, TX. Spindle, T “Cannabis Drug Testing and Measurement of Impairment.”

Presented at the National Safety Council meeting on cannabis use in the workplace (titled “cannabis, its complicated”). June 26, 2019 Chicago, IL. Invited presentation.

Grabenauer M “Differences in Cannabis Impairment due to Route of Administration.”

Presented at the Medical Review Officer Certification Committee (MROCC) R&D Symposium.

June 28, 2019 Research Triangle Park, NC. Invited presentation.

Spindle T and Grabenauer M. “Assessment of Impairment Following Oral and Vaporized Cannabis Use in Infrequent Cannabis Users”

9 This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

Presented at International Association of Chiefs of Police Annual training conference on Drugs and Impaired Driving (IACP-DAID). August 10-12, 2019 Anaheim, CA. Grabenauer M, Vandrey R, Spindle, T “Detecting Cannabis Impairment after Cannabis Administration” Presented at Society of Forensic Toxicologists (SOFT). October 13-18, 2019 San Antonio, TX Spindle, T “Cannabis Drug Testing and Impairment: Evidence from Human Laboratory Studies.”

Presented at the Illinois Trucking Association (ITA) Summit on Cannabis. November 11, 2019 Chicago, IL. Invited presentation.

Elmore J, Spindle T, Grabenauer M, Vandrey R. “Assessment of Impairment Following Oral and Vaporized Cannabis Use in Infrequent Cannabis Users” Poster to be presented at Cannabis Science Conference, 2020, Baltimore MD. -postponed due to COVID-19, date TBD

Implication for Policy and Practice The current understanding of pharmacokinetic and pharmacodynamic characteristics of cannabis administered via vaporization and oral consumption is limited. A greater understanding of these parameters will help determine whether or not an individual who has taken cannabis is impaired. Many jurisdictions with some form of cannabis legalization have enacted or are considering per se laws based on THC concentration in blood for cannabis impairment. Per se laws are advantageous for prosecution because they explicitly define an analyte and a cut-off concentration for that analyte; if a person has levels of that analyte above the cut-off concentration, that person is considered intoxicated and no further evidence of impairment need be demonstrated. Our work indicates that THC is not a reliable marker of cannabis impairment.

Many participants had low levels of THC in their blood and oral fluid at timepoints where they exhibited substantially decreased performance on cognitive and psychomotor assessments. After oral administration at 10 mg THC only 2 participants reached a blood THC level greater than or equal to 5 ng/mL (1 max at 5 ng/mL, 1 max at 7 ng/mL). After oral administration at 25 mg THC only 6 participants reached a blood THC level greater than or equal to 5 ng/mL (2 max at 5 ng/mL, 3 max at 6 ng/mL, 1 max at 8 ng/mL).

10 This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

Appendix Abbreviations THC – delta9-tetrahydrocannabinol THC-COOH – delta9-tetrahydrocannabinol carboxylic acid metabolite Delta8-THC – delta8-tetrahydrocannabinol Delta8-THC-COOH – delta8-tetrahydrocannabinol carboxylic acid metabolite THCV – tetrahydrocannabivarin THCV-COOH – tetrahydrocannabivarin carboxylic acid metabolite 8-OH-THC – 8-hydroxy-tetrahydrocannabinol 11-OH-THC – 11-hydroxy-tetrahydrocannabinol 8,11-diOH-THC – 8,11-dihydroxy tetrahydrocannabinol CBD – cannabidiol CBN – cannabinol

11 This resource was prepared by the author(s) using Federal funds provided by the U.S. Department of Justice. Opinions or points of view expressed are those of the author(s) and do not necessarily reflect the official position or policies of the U.S. Department of Justice.

Texas Criminal Defense Lawyers Association

9th Annual Lone Star DWI Back in the Fight January 21, 2022

Topic: Gas Chromatography Primer Speaker:

Josh Lee PO Box 352 Vinita, OK 74301-0352 (918) 782-0000 Phone (918) 282-0200 Fax joshlee@leecoats.com email www.grandlakedui.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

The Lawyer’s Guide To

Gas Chromatography

Josh D. Lee, Esq. Justin J. McShane, Esq.

About the Authors Justin J. McShane Harrisburg, Pennsylvania Justin is a trial attorney who specializes in using forensic science in defending the citizen accused. He is nationally known and well regarded for being a skilled and fierce litigator, but is also well known for his strong understanding and in-depth knowledge in all forms of forensic science. He has earned Board Certification both in DUI Defense Law by the National College for DUI Defense (NCDD) and as a Criminal Trial Advocate by the National Board of Trial Advocacy. He is the 2012 NCDD Dean’s Award recipient. He received the 2012 Pennsylvania Association for Drunk Driving Defense Attorneys Outstanding Achievement Award. He has been invited seven times to lecture at the American Chemical Society (ACS) National meeting and has presented three times at the American Academy for Forensic Science national meetings. The ACS has named him a Senior Assistant Chromatography Instructor. He serves as the Forensic Science co-chairman of the ACSChemistry and the Law Division. He is the Chairman/CEO of The McShane Firm, LLC.

Josh D. Lee, JD, MS, NREMT Vinita, Oklahoma Josh is nationally recognized for his expertise on forensic science related topics and has lectured over 225 times in 22 different states and two countries. In addition to his law degree, he has earned a Master of Science in Pharmacy from the University of Florida. He is also a Nationally Registered EMT. He has lectured at the American Chemical Society as well as the American Academy of Forensic Science national meetings.

Josh is a Forensic Science Co-Chairman for the Chemistry and the Law Division of the ACS. He is also an “Assistant Chromatography Instructor” for the ACS. Josh is the only Oklahoma attorney to be recognized as an “ACS Forensic Lawyer-Scientist” as designated by the Chemistry and the Law Division of the ACS. In 2018, Josh was recognized by Oklahoma Magazine as a top “40 Under 40” young leader in Oklahoma. He has received two Presidents Award’s from the Oklahoma Criminal Defense Lawyers Association and a Dean’s Award from the National College for DUI Defense. Mr. Lee is a published author on various science and law topics. He is an instructor of the Standardized Field Sobriety Tests, certified independent operator of the Intoxilyzer 5000 and Intoxilyzer 8000 by the State of Oklahoma, and is trained in the Drug Recognition Expert program.

www.ForensicChromatography.com

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Introduction First of all, this short book is designed to be merely an introduction to Gas Chromatography for lawyers. It is intended to be used as materials in conjunction with lectures by Justin J. McShane, Esq. and/or Josh D. Lee, Esq. It was not written to be a full-detail book on gas chromatography.

Also, this book is more than just a PDF. It has been designed to be used digitally also. If you have an iPad or iPhone you can use Apple’s iBooks to view it in its full form. Our digital version is available online at no cost.

To download the iBooks version of the book go to: www.ForensicChromatography.com/lawyersguidetogc you will need the password “chromatography” to download the iBook.

Thank you for your commitment to better understanding science and its use in the courtroom. We hope that this guide and our lecture adds to your knowledge base.

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Chapter 1

Introduction to Science

Yes, you can do it! To help you get started the next couple of pages teach you what you need to know to effectively use your newfound knowledge in the courtroom. So give this chapter a quick read and then dive into gas chromatography.

The Scientific Method First let’s take a look at the Scientific Method. Generally the steps are as follows: 1) Define a Question 2) Make Observations 3) Form Falsifiable Hypothesis 4) Perform Experiments 5) Verify the Data 6) Analyze the Data 7) Draw Conclusions 8) Publish 9) Repeat

Maybe most important is what is not a step. Notice that “Trust Me” is not a step in the Scientific Method. Government lab experts seem to think that they are not subject to the same scientific standards of all the other sciences. From this day forward you remind them that “trust me” is not part of science and demand that they bring proof to support their conclusions. Anything short of that must equal NOT GUILTY! 4

Right or Wrong. There is no in between.

Another point to keep in mind is that the value of a scientific conclusion can be only one of the following: 1. Valid - Meaning that the result has been proven to be correct.

Data must be available to show rigorous and meaningful testing was performed to support the conclusion. All real scientists strive to obtain is a valid conclusion.

2. Invalid - Meaning that the result has been proven to be incorrect. Invalid conclusions have no place in the courtroom.

3. Nonvalidated - Meaning that not enough testing has been performed to produce sufficient data to show that the result is either valid or invalid. The conclusion might be valid or it might be invalid, we just do not know. Nonvalidated results also have no business in the courtroom.

Conclusions must be valid. Anything else is unacceptable and must be called out by the defense attorney. No juror wants to convict someone on a conclusion that is not valid. It is our job to rigorously test through cross examination the validity of the government’s conclusion.

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Chapter 2

Gas Chromatography

Its time to rethink who we are. No longer can the lawyer be a jack-of-alltrades. The lawyer must master of the science of gas chromatography if she wants to adequately represent the citizen accused of driving under the influence.

A Separation Science That’s what Gas Chromatography is. It is used to separate a mixture of stuff out into unique individual substances.

For example, we could take a Diet Coke and separate out its individual components to measure how much caffeine it has or if it has any ethanol in it.

Obviously for our purposes we are concerned with blood and blood alcohol content. A Gas Chromatograph can separate the various components in blood, like ethanol and drugs of abuse.

Lets get a little more technical in our coverage of Gas Chromatography. But as we move along just remember it is merely a separation science.

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So What Is Gas Chromatography?

What Isn’t It? Perfect.

Probably even more important is that fact that neither are the people who operate the machine. So do not fear the blood test; welcome the blood test. Look for the mistakes that have been made, we promise they are there.

Some Important Terminology to Keep Straight.

Formally the method is called isothermal, static, headspace, wall coated open tubular gas chromatograph1 with flame ionization detector.

But you know what? It’s just a machine.

• Isothermal= same temperature • Static= no variables change during the entire run from first test to last • Headspace= how the blood is indirectly measured and put on the column for analysis (remember we are never directly measuring the blood) • Wall coated open tubular= type of column that may cause the separation (qualitative measure= what do we have?)

• Flame Ionization detector= tells us how much of what we have separated do we have (quantitative measure)

To keep this straight in your mind think about a telegraph and a telegram. A telegraph and a chromatograph are machines. A telegram and a chromatogram are printouts from the machines. Many give away their ignorance on the subject by asking to see chromatographs when they are instead asking to see the printouts or chromatograms. So take care to keep these straight in your mind.

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GC Animation:

Thou Shalt Separate.

That is Commandment #1 of Gas Chromatography. Thou shalt separate.

Commandment #2 of gas Chromatography is Thou Shalt Not Quantitate Until Thou Separates.

A sample is injected into the GC and then it moves into the column. It is pushed into and through the column by a gas known as the “carrier gas.” As it moves through the column it interacts with the “stationary phase” which causes separation between the different molecules in the mixture, well its supposed to anyways. Many labs do not have appropriate separation which means they did not perform good chromatography. Lets talk about why this is so important.

The main thing you should be looking for when reviewing a lab’s work is separation. When a lab cannot separate the substance they are trying to quantitate, from all other substances, they absolutely can not report a quantitative measure of the substance. In other words, if they can’t separate ethanol from every other substance then they can not tell you how much ethanol is present. Period. Separation before quantitation is the rule and there are no exceptions in blood alcohol work.

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What Else Can Go Wrong That Can Screw Up My Client’s Test?

A lot. It’s not just a machine. It’s a whole process. It needs to work perfectly to get a valid result.

that at equilibrium, in a closed system, at a static temperature, at a static pressure, and a static flow, we can rely upon a partition ratio to equate how much is in the gaseous portion to the true amount in the liquid portion. Simply put, if there is a change in the conditions between the testing of our calibrators (that make the calibration curve) and the testing of our unknowns (samples from the motorists), the results will always be wrong. So if any of this is changed (or the laboratory that did the testing cannot prove that there was no change in the following) then the results are no longer valid and scientifically reliable.

Headspace Animation

This is really three machines (headspace unit, gas chromatograph, and the flame ionization detector) with a lot of parts and is utterly programmable. It depends on some very major variables that if changed can really screw things up.

For example, the quantitation (how much we have) is totally dependent upon the separation and then the principles of Henry’s Law. Remember, we are never directly testing the blood, but instead the gaseous portion above the blood. Henry’s Law states 10

• The headspace vial has not reached equilibrium (function of time, temperature and agitation).

How Do I Tell Good Chromatography From Bad?

• The system has a leak (isn’t closed).

If the chromatography is performed correctly we should have peaks that are...

• The temperature changes in any of the parts (headspace unit, the injector port, the column and the flame ionization detector).

• The flow rate changes.

• The pressure changes.

How Can I Issue Spot If There Are Problems?

Get as much information as you can. Look at the chromatograms. Don’t ever accept a deal or plead anyone guilty based upon some laboratory’s say so. Demand the data!

This axis helps us to answer the question of: How much do we have? (the quantitative measure) The higher the peak, the more “stuff ” we have.

How Do I Read A Chromatogram?

Its simple.

If the peaks are not tall, skinny, symmetrical, and separated from each other then the chromatography is not good, and neither are the results generated from it.

This axis helps to answer the question of: What do we have (the qualitative measure)

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Four Take Away Points: 1. Have no fear and act as if.

1.1. Don’t worry about it. The only person who knows you don’t know is you. The testifying “expert” witness will be more scared than your citizen accused. The “expert” isn’t really an expert at all. He or she is a button pusher.

3. Demand proof of separation by seeing a separation matrix/ resolution control/standard mix. If it doesn’t exist or there isn’t good separation, then they cannot quantitate.

4. Remember to look for tall, skinny peaks that are symmetrical, well-resolved (separated), and start and end at the baseline.

1.2. Create a “challenge” theme in your case such as “If they cannot explain it to you where you can understand it… then, you cannot convict!”

2. They purposely try to make this stuff more complicated than it is. They want you to be scared enough that you will not challenge the analysis. It is really easy to issue spot. All you need to do is issue spot. A basic understanding is all that you need.

2.1. There are only two “commandments” in all of chromatography: 2.1.1. Thou shall separate first (uniquely identify what is there to the exclusion of everything else in the universe-to be specific). Separation. Separation.

Separation.

2.1.2. Thou shall separate before thou quantitate (uniquely separate first, and if, and only if, we can PROVE unique separation, can we tell how much there is). If you cannot prove separation, stop, don’t quantitate.

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Chapter 3

Bonus Materials

Section 1

The 28.3 Discovery Request We have developed a list of 28.3 items that any expert or competent defense attorney must have in order to evaluate the validity of a conclusion reached by a toxicology lab. We suggest that you start with obtaining these items when handling DUI/DWI cases.

A copy of this request is available for download at www.forensicchromatography.com/wp-content/uploads/28.3-GCrequest.pdf

4. The policy that applies to the section of the laboratory where this particular testing or calibration event occurred.

5. The procedure that applies to the section of the laboratory where this particular testing or calibration event occurred.

The Following Items Concern Pre-analytical Matters: 6. Validation studies (both internal and external) that proves the validation of the method and instructions used.

Documentation Required for Independent External Scientific Validation for Reported and Alleged Test Results Involving Blood Tests for EtOH not made by Enzymatic Process

7. The policy that applies to the assay performed in this particular test or calibration event that covers the calibration or the achieving of a calibration curve.

Please provide,

8. The procedure that applies to the assay performed in this particular test or calibration event that covers the calibration or the achieving of a calibration curve.

The Following Items Concern General Matters: 1. A copy of any accreditation certificates for the laboratory that were in effect at the time of the analysis.

2. The laboratory’s overall policies as to testing and calibration.

3. The laboratory’s overall procedures as to testing and calibration.

9. The instructions that apply to the assay performed in this particular test or calibration event that covers the calibration or the achieving of a calibration curve.

10. The calibration curves and all chromatograms generated on the batch on the machine on which the sample in this case was tested.

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11. The identification and source of all internal standards, standards, standard mixtures (separation matrix), verifiers, blanks, and controls that were run within the batch in which the sample in this case was run.

12. All records reflecting internal testing or quality control testing of all solutions, reagents, or standard mixtures used as, as part of, or in relation to internal standards, controls, standard mixtures, or standards in the batch in which the sample in this case was run.

flecting the calibration of weights on any balance or instrument related to this case as well as the control charts kept.

The Following Items Concern Analytical Matters: 16. The instructions that apply to the assay that was used in this particular testing or calibration event occurred.

17. The employee training record, curriculum vitae, and resume for any person listed on chain of custody documents in this case or who performed the analysis.

13. All refrigeration logs, reports, or other documents in whatever form, for all refrigerated compartments in which this sample, other unknowns within the run, internal standards, controls, standard mixtures, standards, and reagents used in or in relation to the analysis in this case were stored or kept at any time.

18. Identify the make, model, and brand/manufacturer of the instruments and other supporting instruments (i.e. balance, pipette, etc.) used during the analysis and/or preparation of the samples in this case and the variables used in its installation and operation.

14. All proficiency testing results for the section of the laboratory testing the sample in this case as well as for the person who conducted the testing in this case – since the last date of accreditation inspection preceding the test, and for any such testing since the testing in this case. This specifically includes the summary report of expected results for the proficiency testing (and the manufacturer’s information sheet) against which the proficiency test results are judged.

19. The policy concerning the sample selection criteria used in this particular case.

15. Quarterly balance quality control records on any balance instrument related to the calibration of the alcohol standard solution or the preparation of knowns or unknowns used in the blood alcohol testing of the samples in this case. The records re-

20. The procedure concerning the sample selection criteria used in this particular case.

21. The instructions concerning the sample selection criteria used in this particular case.

22. The source and type of all consumables used in collection, preparation, and analysis of the samples run in the batch.

23. If a Gas or Liquid Chromatograph is used, the reporting of t0 time according to the method.

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The Following Items Concern Reporting Matters: 24. The particular records for this testing or calibration event.

25. The quality control policy and protocol for the laboratory, the section, and the assay performed.

26. The quality assurance policy and protocol for the laboratory, the section, and the assay performed.

27. The full reporting and the underlying validation of the valuation of the uncertainty measurement (UM) in the ultimate reported result.

28. If a Mass Spectrometer is used, then the following additional materials should be provided: 28.1 If a spectral library is used to examine spectra and elucidate spectra, the source of the library spectra.

28.2 The hit list, and the hit histogram for the spectra examined and reported.

28.3 All “tune” reports ran within one year if a MS detector was used.

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Section 2

10 Step Analysis of GC Data We have also created a “10 Step Analysis of GC Data” that gives you a roadmap to assist you in analyzing the data that you receive from the lab. Follow this guide to help you get started. A copy of the guide can be downloaded at: www.forensicchromatography.com/wp-content/uploads/10-Ste p-Analysis-of-GC-Data1.pdf

3. Find the laboratory number that is assigned to your case. This can be found on the blood kit afUidavit or on the laboratory intake sheet or request for examination.

1. Go through everything they provided to you and make notes of what items you have and what items you want or need that you were not provided.

4. Note the date and time of all important sample events. Such as: blood draw, storage, transport to lab, receipt at lab, and all testing events. This is important to match up to refrigerator logs to show storage temps, or lack of temperature controlled storage.

1.1. Don’t panic. It may seem like a lot of information but that is primarily because of the very disorganized fashion that it is provided to you. Get it in order in step #5 below and it will make a lot more sense.

2. Next, move to their policies, procedures, and instructions.

tain material, when in fact the protocols say that they must.

5. Look for a “Batch Sheet” to show what was run and in what order. If there is not a batch sheet, create your own as best you can by using Vial Position numbers and the Date/Time stamp off each chromatogram.

5.1. Then put all chromatograms and other printouts in the order of the batch sheet or the date and time stamp.

2.1. Read through once for familiarity and then read through a second time for a more complete understanding.

6. Examine the type and quality of controls that they used.

2.2. Make notes of what you believe to be most important.

Pay close attention to statements that say the lab “must” or “shall” do something. Those nuggets can be very useful down the road when they say they don’t have to perform up to a certain standard or use a cer-

7. Note all analysts who worked on or tested the sample for Confrontation Clause consideration.

6.1. Note the last time the GC was calibrated if not done in batch.

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7.1. Note all testimonial statements in the afUidavits; don’t let those into court without the government satisfying Confrontation.

8. Examine all chromatograms for stuff that just doesn’t look right.

8.1. Pay particular attention to blanks.

8.2. Explore each of these possible issues in depth.

8.3. Use the Separation Matrix a.k.a. Resolution Mix a.k.a.

Test Mix as a key to assist in analyzing unidentiUied peaks.

8.4. Examine the Calibration Curve for any possible issues.

9. Check out their “expert’s” credentials.

10.Contact your own expert with the information that you have found for use in the case.

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Thank You!

Axion Analytical Laboratory

Our friends at Axion Labs have done more for the citizen accused of driving under the influence than they will ever know. Thank you for sharing your knowledge with us and for joining us in the fight to bring legitimate science to courtrooms across America.

Axion Analytical Laboratories - Chicago, Illinois

Left to Right: Lew Fox, Dr. Harold McNair, Josh D. Lee, Justin J. McShane, Ron Moore, Dr. Lee Polite In 2007 and 2008, Attorney William “Bubba” Head of Georgia sponsored a multi-day seminar that focused on advanced aspects of forensic testing used in DUI cases. This is where Attorneys McShane and Lee were first introduced into the world of Gas Chromatography. They were inspired to learn more about the theory and the process, but they both wanted to get hands-on practical experience. They forged a relationship with the American Chemical Society and Axion Analytical Laboratories in Chicago Illinois, laying the foundation for high level scientific training for lawyers in aspects of forensic chromatography. The course Forensic Chromatography: Theory and Practice was born

in 2009. It was designed and targeted to teach those without a hard science background the details of gas chromatography through a mix of classroom instruction and hands-on practical exercises. It was and remains a scientist course. Since the initial class, hundreds of lawyers have graduated the course gaining invaluable expertise in aspects of blood testing. We have also added a two sister courses - Solid Drug Testing and Pharmacology/DUID. Attorney and Forensic Scientist Ron Moore joined the faculty in 2012. For more information on these outstanding learning opportunities go to our course website at ForensicChromatography.com.

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Analyte A substance that undergoes analysis. A substance or chemical constituent that is determined in an analytical procedure.

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Carrier gas A gas introduced in order to transport a sample for analytical purposes. In gas chromatography it is the gas which is passed continuously through the column and whose passage promotes the elution of the components of the sample. The carrier gas together with the portions of the sample present in this phase constitutes the mobile phase

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Chapter 2 - A Separation Science

Chromatogram The printed graphical representation of the record of the analytical and interpretative process of the test performed. The printed paper graphical record of the instrument process that may or may not be subject to interpretation by the chromatographer, the software or both.

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Chapter 2 - A Separation Science

Chromatograph The actual analytical device. It is not the graphical representation of the test.

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Chapter 2 - A Separation Science

Chromatography From Greek χρώμα:chroma, meaning color and γραφειν:graphein meaning to write. It is the collective term for a set of laboratory techniques for the separation of mixtures into its constituent parts. In two words, it can be summed up as “separation science.”

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Column The tube and the stationary phase contained within, through which the mobile phase passes.

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Chapter 2 - A Separation Science

Elucidation Literally means to make clear through analysis. Typically, it is used in chemistry to explain the concept of taking raw data and coming to a conclusion. It is must frequently used in spectral interpretation and in mass spectrometry.

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Elute Describes the emergence of analytes from the column of a chromatograph.

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Equilibrium A condition in which a chemical reaction is occurring at equal rates in its forward and reverse directions, so that the concentrations of the reacting substances do not change with time.

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Flame Ionization Detector A specific type of detector that is used to arrive at a quantitative result. It counts the increase in the number of ions that occurs as hydrocarbon bonds are burned. A polarizing voltage attracts these ions to a collector located near the flame. The current is sensed by an electrometer, converted to a digital form and sent to an output device that gives the peak.

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Gas Chromatography A powerful, yet not perfect, analytical method whose goals are to uniquely separate and identify analytes of interest (qualitative measure) from a mixture and if desired arrive at a unique amount of that unique analyte of interest (quantitative measure). The mobile phase is that of a gaseous matrix as opposed to Liquid Chromatography whose mobile phase is liquid.

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Chapter 2 - A Separation Science

Headspace It is the gaseous portion over the liquid portion in a closed system. It is also a method of indirect analysis of the gaseous phase relating the gaseous phase measure to the liquid phase measure based upon partition ratio once equilibrium is achieved.

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Henry's Law Henry’s Law states that at a constant temperature, the amount of a given gas dissolved in a given type and volume of liquid is directly proportional to the partial pressure of that gas in equilibrium with that liquid. Or stated differently, an equivalent way of stating the law is that the solubility of a gas in a liquid at a particular temperature is proportional to the pressure of that gas above the liquid. Headspace gas chromatography requires a closed system (i.e. no pressure leaking from the gaseous phase).

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Chapter 2 - A Separation Science

Matrix The components of the sample including the analyte.

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Mobile Phase A fluid which percolates through or along the stationary phase of a column, in a definite direction. It may be a liquid (liquid chromatography) or a gas (gas chromatography). In gas chromatography the expression carrier gas may be used for the mobile phase.

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Partition Ratio The ratio of the concentration of a substance in a single definite form in the extract to its concentration in the same form in the other phase at equilibrium (e.g. for an aqueous form to a gaseous one).

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Qualitative Measure Seeks to answer the question, “What is it?” The goal of such measuring is to reporting one unique molecule to the exclusion of all other molecules or possibilities.

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Quantitative Measure Seeks to answer the question, “How much?” The goal of such measurement is to report one unique amount of the molecule selected to the exclusion of all other molecules or possibilities.

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Chapter 2 - A Separation Science

Retention Time The absolute time taken by a compound to travel from the injector through the column to the detector. This is very dependent on operational conditions, so it is useful only to compare retention times for various components on one instrument for experiments performed with the same conditions. It is not meaningful to compare retention times for different instruments or the same instrument under different conditions.

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Separation Matrix A mix of standards in one sample that is used to prove that the analytical device can indeed separate with sufficient resolution like analytes.

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Stationary phase One of the two phases forming a chromatographic system (the other is the mobile phase).

It may be a solid, a gel or a liquid. If a liquid, it may be distributed on a solid. This solid may or may not contribute to the separation process. The liquid may also be chemically bonded to the solid (bonded phase) or immobilized onto it (immobilized phase). The expression chromatographic bed or sorbent may be used as a general term to denote any of the different forms in which the stationary phase is used.

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Chapter 2 - A Separation Science

Verifiable The ability to take all information provided and arrive at the same conclusions as the original analyst without the need to independently test.

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Texas Criminal Defense Lawyers Association

9th Annual Lone Star DWI Back in the Fight January 21, 2022

Topic: Intox 9000: Trial Strategies Speaker:

Mark Thiessen 733 E 12th 1/2 St Houston, TX 77008-7119 (713) 864-9000 Phone (713) 864-9006 Fax mark@thetexastrialattorney.com email www.thetexastrialattorney.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Mark Ryan Thiessen 1

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MI Inc.’s newest Driving While Intoxicated (DWI) conviction machine is coming to Texas: the Intoxilyzer™ 9000 (hereinafter referred to as the “9000”). Texas began breath alcohol testing on a statewide level in 1968 using the Breathalyzer.2 In 1980, Texas began using the Intoxilyzer 4011AS-A, and in 1988 the Intoxilyzer 5000 was introduced.3 Currently, the Intoxilyzer 5000-68 EN (hereinafter referred to as the “5000”) is exclusively used in Texas for forensic breath alcohol testing.4 However, Texas is currently transitioning to the Intoxilyzer 9000 and training breath test operators through local technical supervisors. Implementation of the Intoxilyzer 9000 was scheduled for Summer 2015, but due to software issues and bugs, the 9000 has not been approved for evidential use. While we can only speculate on the actual software that will eventually be approved, much is already known about the Intoxilyzer 9000 from use in other TUBUFT (FPSHJB $PMPSBEP BOE QBSUT PG /FX :PSL 4UBUF VTF UIF Intoxilyzer 9000 for forensic evidential purposes.

By understanding the information and studies from other states regarding inherent shortcomings, a Texas criminal defense lawyer can prepare to attack the Intoxilyzer 9000 regardless of the final software.5 This article will equip the DWI trial attorney with the science of infrared spectroscopy and an intimate knowledge of the Intoxilyzer 9000 needed to effectively represent clients.

How Breath Contains Alcohol All humans must breathe to stay alive. Breathing involves the absorption of oxygen from the environment and the elimination of carbon dioxide from the bloodstream.6 We breathe through our mouth or nose and the air is transported by the trachea or windpipe into the lungs.7 In the lungs, the trachea branches into smaller air tubes called bronchi, which continue to branch and eventually terminate in small air sacs called alveoli.8 These alveoli are surrounded by capillaries that are elastic in nature.9 It is in these pulmonary alveoli that blood is able, by diffusion, to release carbon dioxide and absorb oxygen for use throughout the body.10 If alcohol is present in the blood, it will also diffuse across the alveolar membrane into the breath in a fixed proportion to the alveolar blood alcohol concentration and the core body temperature.11 The chemical principle that governs the diffusion of gases between the blood and the breath in the pulmonary alveoli is Henry’s Law.12 Henry’s Law states that the concentration of a material in the gaseous state above a liquid containing the dissolved material will be proportional to the concentration of the material in the liquid state.13 Henry’s Law applies to alcohol vapor (gas) in the lung in contact with blood (liquid) containing

alcohol.14 Alcohol continuously diffuses across the one-cell-thick semi-permeable membrane of the capillaries into the air of the lung in proportion to its concentration in the blood.15 Ultimately, if given enough time, the breath alcohol concentration (BrAC) will reach a defined balance with the blood alcohol concentration (BAC) in accordance with Henry’s Law.16 This balance is called equilibrium.17 At equilibrium, the relationship between the concentration of alcohol in the blood and the breath can be described by the blood:breath ethanol partition ratio.18 At 34 degrees Celsius, the alleged average temperature of human breath, this blood:air ethanol partition ratio has been experimentally determined to be approximately 2100:1.19 Theoretically, at 34 degrees Celsius there is the same amount of alcohol in 100 mL of blood as there is in 210 L of air in contact with that blood in a closed container.20 This assumes that the air within the container has had sufficient time to reach equilibrium with the liquid state.21 Thus, it is necessary to try to obtain an air sample from a defendant that has reached sufficient equilibrium between the air in the lungs and the pulmonary blood to satisfy accuracy and reliability.22

Infrared Spectroscopy Before attacking the specific problems with the Intoxilyzer 9000, a brief overview of Infrared Spectroscopy (IR) is needed. Depending on their atomic and electronic structure, molecules absorb energy (light) of well-defined wavelengths.23 For molecules, the relative intensity of infrared light absorption at different wavelengths functions as a molecular “fingerprint” specific to a given molecule.24 Thus, by evaluating the relative intensity of absorption at specific wavelengths of infrared light, one can specifically identify ethyl alcohol and hopefully differentiate its infrared response from that of other volatile compounds.25 Additionally, by measuring the amount of infrared light absorption at specific wavelengths, one can use a standard differential absorption technique to determine the amount of a given molecule in a sample.26 The Beer-Lambert Law dictates that the quantity of light absorbed will always be proportional to the concentration of the molecule in the solution.27 This is the physical principle the Intoxilyzer 9000 uses to determine the amount of alcohol in a breath sample.28

The Intoxilyzer™ 9000 The heart of the Intoxilyzer 9000 is its optical or analytical bench (see diagram on page following).29 At one end of the bench (left side), an infrared source generates light in the infrared region of the spectrum, which is pulsed through the sample chamber

Inherent Problems in the Intoxilyzer 9000

Functional Schematic of the 5000 (top) and 9000 (bottom— illustrative only).37

at a defined frequency (10 Hz).30 In the sample chamber, the infrared light is allowed to interact with a breath sample.31 If the breath is alcohol free, the infrared light should pass through the sample chamber freely; however, if alcohol is present, specific frequencies or wavelengths of infrared light will be absorbed.32 At the opposite end of the sample chamber (right side), a lens focuses the energy (light) onto a (light) detector, made up of four crystalline detectors that generate electrical signals proportional to the incident radiation.33 Prior to it reaching the detector, the infrared light is filtered by four single wavelength filters that are integrated into the detector unit.34 Once the light passes through the filter and strikes the detector, the detector generates an electric signal proportional to the amount of light striking it.35 This signal is then transmitted to a processing unit that interprets the electrical signal.36 Prior to the delivery of a breath sample, the instrument allegedly establishes a zero reference point by measuring the amount of energy (light) striking the detector when the sample chamber is filled with ambient/room air.38 During a breath test, as the amount of alcohol vapor in the sample chamber rises, the amount of infrared energy (light) reaching the detector falls relative to the zero point measurement.39 By determining the difference in the amount of energy (light) striking the detector between the two measurements, the instrument is able to mathematically calculate the breath alcohol concentration in the test sample.40 The instrument then analyzes the relative response at each of the four detectors to confirm the identity of ethyl alcohol to the exclusion of other substances, if possible.41 In summary, the Intoxilyzer 9000 looks for the presence and amount of alcohol in a breath sample.42 It uses infrared light to both identify and quantify ethyl alcohol because ethyl alcohol absorbs infrared light in a unique way.43 The pattern of absorption is used to identify alcohol, and the amount of absorption is used to quantify alcohol in a breath sample.44 The Intoxilyzer 9000 then prints the analytical result in grams of alcohol per 210 liters of breath, as required by Texas law.45

1. Nonspecificity for Alcohol. The main difference between the Intoxilyzer 5000-EN and 9000 is the ethanol “fingerprint.”

Where the 5000 measured the carbon-hydrogen (C-H) bond vibrations in the 3 micron region of ethanol’s molecular fingerprint, the 9000 is measuring the carbon-oxygen (C-O) vibration in the 8–9 micron region.46 The problem exists that other molecules are commonly found in the human body with this same C-O stretching. Specifically, other organic molecules, which can potentially contaminate breath samples, also absorb IR radiation at 9 microns.47 These include other alcohol, esters, and ethers that contain both the methyl group and carbon-oxygen bonds in their molecular structures.48 Dimethyl sulfoxide (DMSO) exhibits IR absorption in both the 3.4 and 9.4 micron regions.49 DMSO is a common solvent for organic compounds and is also used in the treatment of interstitial cystitis (aka painful bladder syndrome) and scleroderma, with rapid absorption occurring through the skin and mucous membranes.50 Additionally, diethyl ether has been found to produce false ethanol readings at 3.4 and 9.5 microns, the latter overlapping absorption at 9.4 microns.51 Diethyl ether is widely used as a solvent for waxes, fats, oils, perfumes, alkaloids, and gums.52 Exposure to ether vapor is highly problematic because of its high tissue solubility and its low partition ratio in humans.53 Among the numerous esters that can contaminate breath samples, ethyl formate, methyl butanoate, propyl acetate, and pentyl acetate are noteworthy because they are synthetic flavoring agents that allow many products—including ice cream, soft drinks, candy, and other foods—to taste natural in flavor.54 FurUIFSNPSF UIF (#* DJUFE QSPCMFNT XJUI UIF MBDL PG TFOsitivity to compounds other than alcohol when evaluating the 9000.55 The 9000 actually scored the lowest of any DPNQFUJUPS PO UIF (#* TVSWFZ UP B MJTU TVQQMJFE CZ $.* UP rate the specificity/selectivity for ethanol.56 Clearly breathalcohol analysis via IR at 3.4 and 9.4 microns is not entirely ethanol specific, and any subject’s employment, medical, or eating history can and should be ascertained through appropriate evaluation of the subjects and the compounds.57 Similarly, acetone may be found on the breath of individuals in a state of ketosis from untreated diabetes, prolonged fast, or a low-carb diet.58 Acetone impairment may resemble alcohol intoxication.59 However, the Intoxilyzer 9000 does not subtract the effect of acetone from the results.60 Texas recognizes the need to evaluate whether acetone testing will need to be a necessary part of official inspection in the future.61

2. Texas Won’t Produce the Histogram. The 9000 produces a graphical representation of the breath flow, breath volume, blow duration, and breath alcohol concentration for every subject test.62 (FPSHJB BOE $PMPSBEP CPUI QSPEVDF WBSJBUJPOT of the histogram/graph. From this graph, the skilled defense attorney or expert witnesses can find answers to critical, potentially exonerating, questions: Was the breath flow continual or spiked? Did the breath sample achieve sufficient slope to be considered a valid test? Was the slope indicative of mouth alcohol? Was the exhalation time sufficient to create a level slope? Likewise, the histogram would reveal what the breath alcohol concentration was at any given point during the exhalation.63 Texas Department of Public Safety (DPS) has chosen not to save or include the histogram next to the sample result.64 Why wouldn’t Texas DPS provide all the information possible? The 9000 is absolutely capable and does produce a histogram with every breath test, but the software determines what is printed.65 In fact, the entire report format of the breath test results is configurable

by CMI technical personnel per customer requirements.66 In an email dated April 28, 2014, from Scott Brown with Texas DPS Tyler to Larry Smith, Regional Manager of North Texas Breath BAL, Mr. Brown states that by providing more information on an Analytical Report/Breath Test slip would just give “most jurors ‘rope and a tree’ with this extra information in a closed jury room.” 67 Additionally, Mr. Brown notes that jurors “are not even allowed to have calculators in there. Why would we want them trying to subtract and add tolerances and temperatures without some kind of guidance (i.e., not the defense attorney suggesting they ‘do the Math!’).” 68 Furthermore, Mr. Brown does “not like the actual UFNQFSBUVSFT QSJOUFE PO BOZ PG UIF 3FQPSUT <0>VS UFTtimony should be ‘within tolerance, or notified otherwise’ . . . It is already confusing enough when we tell a jury that the instruments do not ‘care’ about breath temperature.

I believe printed simulator temperature information will cloud the issue even more on the stand.” 69 Apparently, Mr. Brown failed to read Fox and Hayward, who found that there is an 8.62% increase in breath-alcohol concentration over blood-alcohol concentration for each degree Centigrade increase in core body temperature.70 However, Mr. Brown and DPS have chosen to only include basic information in the Analytical Report/Breath Slip so jurors can’t hang themselves with reasonable doubt.

3. DPS Refuses to Produce Even More Information. According to the Texas 9000 breath test slip obtained by the author, Texas will also not produce the following information: a. the observation period start time; b. when the observation period ended;

c. the last instrument calibration date; d. whether the observation period was conducted by a certified Breath Test Operator (BTO); e. the last BTO certification date; f. if the BTO had the subject remove any foreign material from the mouth cavity; g. if the subject was deprived access to foreign material during the observation period; h. that the subject did not belch, regurgitate, or intake any foreign material into the mouth during the observation period; and i. the uncertainty measurement for the result.

All of this information is readily accessible and capable of being produced if Texas wanted it to be.71 The skilled trial lawyer will bring this to the jury’s attention and ask them to demand more open and honest forensic science.

If there is nothing to hide, then why not provide all of the information possible?

4. Four Filters with No Zero Set. The original 5000 used a tungsten filament light source that provided continuous IR and visible radiation to a five-filter chopper/filter wheel that rotated in front of the detector.72 The 9000 uses a grey body infrared light that pulses the energy through the sample chamber to a stationary detector that contains four filters, each for a specific wavelength of IR radiation.73 Where the 5000 had a blank or a zero filter in the wheel, the 9000 does not have a detector for a true zero. Instead, the machine assumes or is programmed to read zero if the filters do not detect other samples besides alcohol.74 Additionally, the Intoxilyzer 9000 “masks” all results less than 0.007 and instead reports it as 0.000.75 How can the machine be sure that it didn’t miss one of the contaminants listed above? If the detector has never been programmed or tested with the contaminants listed above, how can it truly be a zero? The answer is that it assumes that it is a zero. That’s not good enough for forensics.

5. Common Problems Between the 5000 and 9000. Luckily for the defense attorney, the 9000 still maintains several similar problems that juries have been responsive to (1). Both $PMPSBEP BOE (FPSHJB TUJMM VTF B NJOVUF EFQSJWBUJPO PS observation period.76 Presumably, this is because CMI suggests this, but until CMI publishes its own operator manual, we will not actually know for sure. Texas still only requires a 15-minute waiting period.77 Further, Texas Breath Alcohol Testing Regulations are in the process of being changed to: “An Operator shall remain in the continuous presence of the subject at least 15 minutes immediately before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth.” 78 And

while Texas recognizes that direct observation is not necessary, Texas addresses increased scrutiny of the continuity requirement by stating that “clearly the ‘best practice’ is for the Waiting Period to be conducted entirely at the testing site” 79 (2). The CMI warranty is only valid for one year from the date of invoice to the initial purchaser.80 The warranty extends only to the original purchaser and does not include abuse, misuse, cables, switches, or use of the product for other than its intended purpose.81 Additionally, the warranty does not apply if the product is in any way tampered with or modified without express written permission from CMI, Inc.82 CMI sells an extension of the warranty for one year for $125.83 The warranty argument will come into play after the first year from purchase, which should be soon with the delayed implementation in Texas (3). CMI still won’t sell the new source code or COBRA V5 software to the 9000 without a protective order and non-disclosure agreement.84 Any viewing of the source code must be done at CMI and may not be sent outside for independent analysis 85 (4). CMI still won’t sell private citizens their machine 86 (5). The breath tests must still be within 0.02 of each other 87 (6). There is still no ToxTrap requirement or way to save the breath sample for independent testing using gas chromatography (7). For the 9000, although capable of running a dry gas simulator, Texas has chosen a wet bath–compatible option like the 5000 simulator sample.88 As with any preparation of a simulator solution, human error is always a factor.

6. New 9000 Issues. First, as discussed above, the optical bench is the heart of the 9000. The optical bench is shielded by a metal case that allegedly protects it from ambient electromagnetic radiation.89 However, it also has a radio frequency detection circuit that will still cause it to read radio frequency interference detected if a source is sufficiently strong and in the vicinity during the breath test.90 Why have the antenna and prompt if the optical bench is absolutely protected by the metal case? Second, the new software has so many bugs and issues that the machines have been delayed for implementation until they can be “solved.” Third, the sample chamber in the 9000 is only approximately 6 inches long, where the 5000’s was 10 inches long.91 This is a lot less room and a smaller sample being analyzed; therefore, any mistake will have a conversely larger effect in the measurement. And lastly, regarding the valves that control the source of tested air: The 5000’s three-way mac valve has been replaced by a valve of least resistance in the 9000 that can actually go back and forth.92 Arguably, any valve that can go back and forth could allow contamination in from previous samples, ambient air, or even the simulator solution.

7. Why Is Texas Still with CMI? In a comprehensive analysis of the Intoxilyzer 9000, the Swedish-made Evidenzer 240 Mobile, and the Datamaster, the Intoxilyzer scored last in the diagnostic criteria where each machine was tested to determine whether it possessed all necessary diagnostic elements to ensure accurate and reliable testing.93 Additionally, the evaluation clearly showed the users ranked the 9000 lowest in the specificity/selectivity of the machine to be completely specific for ethanol.94 Does Texas have some sort of exclusivity contract with CMI? Did Texas conduct its own evaluation against other machines? Can we see that report?

Despite many remaining issues and questions, DPS chose the Intoxilyzer 9000, which willl eventually make its way into the hands of Texas breath test operators. It’s not a good sign that the machine already has software issues that delayed implementation. However, the DWI trial attorney must be ready for the inevitable implementation. Like any machine, it is not perfect.

It will not behave perfectly. The Intoxilyzer has certain inherent scientific issues that are ripe for cross-examination. Just as the State will always strive to bring out the best in forensic science, we as defense attorneys must always remind the State about the flaws in its method and instrumentation. And we must educate the public and juries about the limitations, unreliability, and inaccuracies in the State’s forensic testing. Only through these checks and balances will the citizens charged with DWI actually receive reliable and accurate forensic chemical testing.

Notes 1. Thank you to Frank Sellers and Matthew Malhiot for their editing. Also, thank you to Matthew Malhiot Forensic Alcohol Consulting & Training, LLC, 3JWFSTUPOF 1BSLXBZ 4VJUF $BOUPO (" IUUQ XXX GPSFOTJDBMDPIPMDPOTVMUJOH DPN BOE 3IJEJBO 0SS (BMMFSJB 0ēDF 5PXFST 4 Colorado Blvd #1110n, Denver, CO 80246, www.orrlaw.com, for their tutelage.

2. See Texas Breath Alcohol Testing Program Operator Manual, p. 4 (2001).

3. Id. 4. See Texas Breath Alcohol Testing Program Operator Manual, p. 10 (2001). ѮF (FPSHJB #VSFBV PG *OWFTUJHBUJPO %JWJTJPO PG 'PSFOTJD 4DJFODFT (#*

0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF *OUPYJMZ[FS (#* *OUPYJMZ[FS (FPSHJB 0QFSBUPS T 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO $PMPSBEP %FQBSUNFOU PG 1VCMJD )FBMUI BOE &OWJSPONFOU *OUPYJMZ[FS 0QFSBUPS (VJEF for Law Enforcement from May and September 2013. (#* 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q 7. Id. 8. Id. 9. Id. 10. Id. 11. Id. 12. Id. 13. Id. 14. Id.

15. Id. 16. Id. 17. Id. 18. Id. 19. Id. 20. Id. 21. Id. 22. Id. (#* 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q 24. Id. 25. Id. 26. Id. 27. Id. 28. Id. 29. Id. 30. Id. 31. Id. 32. Id. (#* 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO QQ 34. Id. (#* 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q 36. Id. (#* 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q (#* 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q 39. Id. 40. Id. 41. Id. 42. Id. 43. Id. 44. Id. 5FYBT 1FOBM $PEF f B 8FTU (#* 0QFSBUPS 5SBOTJUJPO Training Manual 2015 Revision, p. 16. (#* *OUPYJMZ[FS 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF the Intoxilyzer 5000, pp. 6, 39, and 77 (September 2012).

47. See Labianca, Dominick, “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 92 (2006).

48. Id. 49. Id. 50. Id. 51. See Labianca, Dominick “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 93 (2006).

52. Id. 53. Id. 54. See Labianca, Dominick, “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 94 (2006) citing Hill JW, Kolb DK, Chemistry for changing times, 10th edition, pp. 262–263 (2004). (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF Intoxilyzer 5000, p. 65 (September 2012).Compounds that were analyzed by the 9000 for specificity included acetone, acetaldehyde, methanol, 2-propanol, toluene, ethyl acetate, 2-butanone, 2-butanol, 1-propanol, acetonitrile, methylene chloride, and 2-methyl propanol. Id. at 93. (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF Intoxilyzer 5000, p. 64 (September 2012).

57. See Labianca, Dominick, “Breath-alcohol analysis: a commentary on ethanol specificity in the 3 micron and 9 micron regions of the IR spectrum,” Journal of Forensic Toxicology v. 24, p. 94 (2006).

58. See “The Effect of Acetone on the Intoxilyzer 9000,” PowerPoint presen-

tation by Janeen Kubilus, Forensic Scientist, Breath Alcohol Laboratory, Law Enforcement Support-Crime Laboratory Service (432)386-0353, slide 6. Ms. Kubilus stopped replying to my emails after I sent her a copy of her presentation and I asked her for clarification of her research and findings.

59. Id. 60. See “The Effect of Acetone on the Intoxilyzer 9000,” PowerPoint presentation by Janeen Kubilus, Forensic Scientist, Breath Alcohol Laboratory, Law Enforcement Support-Crime Laboratory Service (432)386-0353, slide 23. See also Breath Alcohol (BAL Advisory Board Meeting Minutes, p. 3 (05/2014); FNBJM GSPN )FBUIFS (SFDP 2VBMJUZ "TTVSBODF 4QFDJBMJTU XJUI 5FYBT %14 UP Larry Smith, et al., on May 26, 2014.

61. See Breath Alcohol (BAL Advisory Board Meeting Minutes, p. 3

FNBJM GSPN )FBUIFS (SFDP 2VBMJUZ "TTVSBODF 4QFDJBMJTU XJUI 5FYBT DPS to Larry Smith, et al., on May 26, 2014. (#* *OUPYJMZ[FS 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q (#* 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q (#* *OUPYJMZ[FS 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO QQ m (#* 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q 64. See attached Texas Intoxilyzer 9000 breath test slip versus Colorado breath slip. (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF Intoxilyzer 5000, pp. 54 and 56 (September 2012). (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF Intoxilyzer 5000, p. 54 (September 2012).

67. See email dates Monday, April 28, 2014, 1:48 pm, Subject: FW, Attachments: Brown AB Comments on Analytical Report.

68. Id. 69. Id. 70. See 'PY (MZO 3 BOE )BZXBSE +PIO 4 i&ĒFDU PG )ZQFSUIFSNJB PO Breath-Alcohol Analysis,” Journal of Forensic Sciences, Vol. 34, No. 4, pp.

836–841, July 1989.

71. See $PMPSBEP *OUPYJMZ[FS TMJQ (#* *OUPYJMZ[FS 0QFSBUPS 5SBOsition Training Manual 2014 Revision; Colorado Department of Public Health BOE &OWJSPONFOU *OUPYJMZ[FS 0QFSBUPS (VJEF GPS -BX &OGPSDFNFOU GSPN May and September 2013. (#* *OUPYJMZ[FS 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJsion, pp. 5–6.

73. Id. (#* 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q 75. See “The Effect of Acetone on the Intoxilyzer 9000,” PowerPoint presentation by Janeen Kubilus, Forensic Scientist, Breath Alcohol Laboratory, Law Enforcement Support-Crime Laboratory Service (432)386-0353, slide 10.

76. Colorado Department of Public Health and Environment Intoxilyzer 0QFSBUPS (VJEF GPS -BX &OGPSDFNFOU GSPN .BZ BOE 4FQUFNCFS Q (#* *OUPYJMZ[FS 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q 77. See Texas Administrative Code, Title 37, Part 1, Chapter 19, Subchapter A, Rule 19.3(a)(1). Training Schedule PowerPoint by James Tedder, Deputy Scientific Director, Breath Alcohol Laboratory, Texas DPS emailed on July 7, 2014, to Alvin Finkley, et al., Subject: 9000 Supplemental Power Point, slides 10–13, 15–17.

78. See An Overview of the Training and Implementation of the Intoxilyzer 9000, pp. 3 and 6; emailed from Larry Smith, Regional Manager North Texas BAL to Kristina Aguirre on July 14, 2014.

79. See An Overview of the Training and Implementation of the Intoxilyzer 9000, p. 7; emailed from Larry Smith, Regional Manager North Texas BAL to Kristina Aguirre on July 14, 2014. See also Texas Depart of Public Safety Interoffice Memorandum from Randall Beaty, Deputy Scientific Director to Luis (PO[BMF[ "TTJTUBOU %JSFDUPS 5)1 PO 'FCSVBSZ (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF Intoxilyzer 5000, p. 73 (September 2012).

81. Id. 82. Id.

(#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF Intoxilyzer 5000, p. 80 (September 2012). (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF Intoxilyzer 5000, pp. 55, 76, and 80 (September 2012). (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF Intoxilyzer 5000, p. 55 (September 2012). (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF Intoxilyzer 5000, p. 70 (September 2012). Although no written policy exists on who can purchase or receive training, this author was denied the ability to purchase a machine when he submitted a request as a private citizen and not an attorney.

87. See An Overview of the Training and Implementation of the Intoxilyzer 9000, p. 6; emailed from Larry Smith, Regional Manager North Texas BAL to Kristina Aguirre on July 14, 2014. (#* *OUPYJMZ[FS 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJsion, p. 5. (#* 0QFSBUPS 5SBOTJUJPO 5SBJOJOH .BOVBM 3FWJTJPO Q 90. Id. 91. CMI Manual, also according to Mathew Malhiot..

92. CMI Manual, also accoridng to Mathew Malhiot. (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF Intoxilyzer 5000, pp. 11–12 (September 2012). (#* &WBMVBUJPO PG #SFBUI "MDPIPM 5FTUJOH *OTUSVNFOUT UP 3FQMBDF UIF Intoxilyzer 5000, pp. 64–65 (September 2012).

Mark Thiessen is a criminal trial lawyer and the Chairman/CEO of the Thiessen Law Firm in Houston, Texas.

Mark earned the American Chemical Society-Chemistry and the Law (ACS-CHAL) Forensic Lawyer-Scientist designation, which is the highest form of scientific recognition available for lawyers. Mark is a frequent legal seminar lecturer, author of numerous published legal articles, and a LawLine and HBA faculty member. Mark is the current DWI Committee co-chair and an Associate Board Member for Texas Criminal Defense Lawyers Association (TCDLA), on the Board of Directors for Harris County Criminal Lawyers Association (HCCLA) and a Charter Member and Director for DUI Defense Lawyers Association (DUIDLA). Mark is a Texas Super Lawyer and was awarded the 2012 Unsung Hero Award

by HCCLA.

TCDLEI Memorializes Fallen But Not Forgotten . . . $IBSMFT #BMEXJO 2VJOO #SBDLFUU 1FUFS #SJHIU +BDL ) #SZBOU 1IJM #VSMFTPO 8BSE $BTFZ #ZSPO $IBQQFMM &NNFUU $PMWJO 3VTUZ %VODBO

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)BM +BDLTPO ,OPY +POFT +PF ,FHBOT (FPSHF ' -VRVFUUF Ken Mclean ,BUIZ .D%POBME )BSSZ /BTT "OUIPOZ /JDIPMBT %BWJE " /JY

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Texas Criminal Defense Lawyers Educational Institute To memorialize someone email chattersley@tcdla.com

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases.

From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education.

TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas.

TCDLA continues to foster these relationships and develop additional affiliations.

As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

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