Drugged driving in Tornado Alley

I saw a tweet on Twitter yesterday about a six-state initiative to cut down on drugged driving. This weekend in Arkansas, Kansas, Iowa, Missouri and Oklahoma, police will be "cracking" down on drugged driving in an initiative cleverly titled Driving High? Kiss Your License Goodbye.

There's just one little problem. While alcohol mixes with the blood in the lungs which allows the use of a breath test to estimate the amount of alcohol in a person's body, drugs don't.

With alcohol we can trace a curve showing the accumulation of alcohol in a person's body and we can calculate (or, as I prefer, guesstimate) the length of time it will take that person to eliminate the alcohol. We can't do that with drugs. Since marijuana is illegal, there has been no testing to determine accumulation or elimination rates.

Furthermore, with alcohol we can pick a concentration that demarcates the line between being intoxicated and not being intoxicated. We can quibble over the number but there is testing data available that shows the effect of higher levels of alcohol over time. No such luck with drugs.

I think I can visualize how this initiative is going to work. The police will conduct a traffic stop on anyone committing a minor traffic (or equipment) violation after hours. If the person has the odor of an alcoholic beverage on their breath it will become a DWI stop, complete with roadside sobriety tests and breath or blood tests at the scene or at the station. If the person doesn't have the odor of an alcoholic beverage on their breath it will become a drugged driving stop since there can't possibly be any other reason a motorist might be speeding, not using a turn signal or driving with a burned out tail light.

Those accused and arrested for drugged driving will have to wait weeks for the results of blood tests to come back. Prosecutors will then argue that the presence of inactive metabolites for any number of drugs are evidence that the motorist was under the influence of drugs at the time of driving. Little thought or consideration will be given to the fact that the inactive metabolites of many drugs find their ways to the body's fatty tissues where they stay, not bothering anyone or anything, for anywhere from three days to a month.

Prosecutors will also argue that the presence of prescription medications indicates the motorist was driving under the influence of drugs, too. Little consideration will be given to the actual concentration of the drug in the body or whether or not that concentration is lesser or greater than a therapeutic dosage. Prosecutors will argue that the presence of alcohol and any prescription medication is a clear sign of intoxication without regard for the actual chemistry of the substances involved.

But, hey, with strong Fourth Amendment protections and judges who take seriously their gatekeeper role when it comes to scientific evidence, there's nothing to worry about this weekend in Tornado Alley, is there?

h/t Marine Glisovic and Shane Ethridge

On Cowboys and DUI's

Once again a Cowboy makes the headlines for running afoul of the law. This time, however, it's one of them Cowboys from up in Stillwater.

Justin Blackmon, a 20-year old wide receiver for Oklahoma State, was arrested Monday night for driving under the influence (DUI) in Dallas after Monday Night Football. Of course, if you're a Dallas fan, heavy drinking is about the only way to handle one of their games.

When Mr. Blackmon was stopped for speeding, the officer administered a series of roadside coordination exercises. Presumably this was after he smelled alcohol on Mr. Blackmon's breath. Even though Mr. Blackmon "passed" the exercises he was still arrested for DUI because (1) he was under the age of 21 and (2) he had a detectable amount of alcohol in his body.

There is no allegation that Mr. Blackmon was intoxicated or otherwise impaired. The only allegation is that he consumed alcohol and got behind the wheel of a car. Since driving under the influence is a Class C misdemeanor (the equivalent of a traffic ticket), the maximum punishment Mr. Blackmon could face is a $500 and the suspension of his driving privileges for 60 days.

So before anyone gets too up in arms over Mr. Blackmon's arrest, what he allegedly did Monday night in Dallas is nothing worse than most college students do every weekend.

Driving under the influence of drugs

By now we're all aware of the effect of alcohol on our bodies. We understand that the more alcohol you consume, the more ethanol makes its way to your brain. As ethanol reaches the brain it affects the central nervous system and, from there, affects your physical abilities.

Countless studies have shown that there is a direct correlation between increasing levels of ethanol in the blood and physical impairment. This relationship is the basis of our drunk driving laws.

However, what's not so well known is the relationship between illegal or prescription drugs and physical impairment. 

Whenever a urine test or a blood test is taken as the result of an arrest for driving while intoxicated, substances other than alcohol can be detected in the specimen. Should any of these substances be detected, a driver may be looking at a DWI prosecution where the intoxication is alleged to have resulted from illegal drugs or prescription medications alone or combined with alcohol.

The problem with charging a motorist with driving while intoxicated by drug, is proving the relationship between the level of that drug detected and impairment. While the pharmacokinetics of a drug, that is, what the body does to the drug, are well-documented, the pharmacodynamics, or what the drug does to the body, are much murkier.

In general it is assumed that the higher the concentration of the drug, the greater the effect of the drug. This assumption does not, however, address the core question - whether the drug affected the driver's mental and/or physical faculties to the degree that the driver is intoxicated.

We are also left to wonder about the relationship between the concentration of the drug in the blood or urine and the concentration of the drug in the brain. For without knowing the concentration of the drug in the brain, it is impossible to know whether the detected amount could cause a driver to be intoxicated.

In fact, according to a report issued by the Virginia Institute of Forensic Sciences and Medicine, there is no statistical correlation between marijuana metabolite concentration and performance on NHTSA's standardized field sobriety test battery. Researchers were also unable to determine any per se concentration akin to a .08 alcohol concentration.

There are studies indicating the effects of marijuana on one's mental and physical faculties may last up to three hours; but traces of THC may still be in one's blood or urine more than four hours after smoking.

NHTSA conducted tests on the effects of marijuana and actual driving performance and came to the conclusion that "it is not possible to conclude anything about a driver's impairment on the basis of his/her plasma concentrations of THC...determined in a single sample." The study went on to conclude that the "[p]lasma of drivers showing substantial impairment in these studies contained by high and low THC concentrations; and, drivers with high plasma concentrations showed substantial, but also no impairment, or even some improvement."

The bottom line is that there is no level of illegal drug or prescription medication that can prove a driver was intoxicated at the time of driving. 

DWI v. DUI

In Texas you commit the offense of driving while intoxicated if, while operating a motor vehicle in a public place, you have either: (1) lost the normal use of your mental faculties, (2) lost the normal use of your physical faculties or (3) have a blood alcohol concentration of .08 or higher.

However, if you are under the age of 21 and operating a motor vehicle in a public place with any detectable amount of alcohol, you have committed the offense of driving under the influence. Any detectable amount means that all an officer has to do is smell the odor of an alcoholic beverage on your breath to arrest you.  Should you subsequently fail a breath test, you could be arrested for DWI.

While driving while intoxicated is a Class B misdemeanor and carries a sentence ranging from three days to six months in the county jail and a fine of up to $2,000.00, driving under the influence is a Class C misdemeanor and carries a maximum fine of no more than $500.00.

However, even if you are stopped for driving under the influence, you still face the possibility of a driver's license suspension of up to twelve months on a first offense.  In addition, you will have only fifteen (15) days to appeal the administrative suspension of your license or you could lose it for six months just because you were arrested.