dwi deskbook – controlled substances: statutes & cases

Criminal Law Series: DWI Deskbook –Controlled Substances

August 10, 2016

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DWI Deskbook – Controlled Substances:

Statutes & Cases

Karen S. Mara

Assistant Minneapolis City Attorney

August 10, 2016

Applicable Statues: What is a Crime? (Minn. Stat. § 169A.20)

� Driving while under the influence of:

� (1) alcohol

� (2) controlled substances

� (3) hazardous substances

� (4) combination of (1), (2) &/or (3)

� (5) AC of over .08 or .08 within 2 hours of driving


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What is a crime? (cont.)

� (6) commercial vehicle and AC of .04 or more within 2 hours of driving

� (7) while schedule I or II controlled substance, or its metabolite, (except marijuana) is present in body

What is not a crime - Driving while under the influence of:

�Drugs that are not controlled substances

�Comparison to other states: about 35 plus DC cover all drugs, only about 15 limit to controlled substances


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� All of Minnesota’s border states prohibit driving under the influence of ANY drug (not limited to controlled substances)

WiscSo Dakota

No Dakota

Iowa

What is not a crime (cont.)

� driving while marijuana or a schedule III, IV or V drug is simply present in your body


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Comparison to other states: per se DWI drugs laws

• 17 states have some form of per se controlled substance laws:

• Arizona

• Georgia

• Illinois

• Indiana

• Iowa (limited)

• Michigan

• Minnesota (schedule I & II except pot)

• Nevada (“certain amounts of prohibited substances”)

• North Carolina (schedule I & all for under 21)

• Ohio• Pennsylvania• Rhode Island • South Dakota (under 21)

• Utah• Virginia• Wisconsin (limited)• Washington (only marijuana – 5.0 ng or higher in blood within 2 hours of driving)

What is a controlled substance?

� Minn. Stat. § 152.02 – five schedules.

� Minn. Stat. § 152.02, subd. 7 – Board of Pharmacy is authorized to regulate and define additional controlled substances.

� Minn. Rules § 6800.4210 et. seq.

� Substances scheduled by rule are incorporated in the statutory schedules. State v. King, 257 N.W.2d 698 (Minn. 1977); State v. Verschelde, 595 N.W.2d 192 (Minn. 1999)


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What is a hazardous substance?

� Minn. Rules § 5206.0400, et seq.

Minnesota DRE & DWI Controlled Substances Case Law

� State v. Klawitter, 518 N.W.2d 577 (Minn. 1994)


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Klawitter case - holdings: DRE

� An officer should be allowed to give an opinion based on the officer’s training and experience and his or her observations following the 12-step drug recognition protocol, as long as:

Klawitter DRE holdings (cont.)

� There is sufficient foundation for the opinion expressed,

� the State does not refer to the officer as a “Drug Recognition Expert”, and

� The evidence is relevant


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Klawitter case: holdings - HGN

� HGN satisfies the Frye standard of admissibility: “nystagmus, when it is present, may be an element supportive of a conclusion of drug impairment based on the elements taken as a whole. And it may also support the identification of the drug category involved.”

Why DRE is not Frye per Klawitter

� Not scientific technique - list of things prudent, trained and experienced officer should consider before giving opinion whether person is under influence of CS

� Few of steps require medical or scientific training or skill

� DRE training refines and enhances skill of acute observation and focuses that power of observation


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Nystagmus per Klawitter

� HGN and VN are not emerging scientific techniques

� Trial court did not err in concluding that the Frye standard was met

� Admissible as additional evidence of drug impairment and may support ID of a specific drug category

More Minnesota DRE Case Law

� State v. Heibel, 1995 WL 81395 (Minn. Ct. App. 1995)

� Holding: Whether a defendant obtains a controlled substance legally (e.g., prescription) or knows the drug will affect driving is immaterial.


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Minnesota DRE-related Case Law

� State v. Hegstrom, 543 N.W.2d 698 (Minn. Ct. App 1996)

Hegstrom case

� State showed substantial evidence that defendant was under influence of controlled substance wherein after fatal accident caused by defendant he appeared:

� Distracted, drowsy, very spacey, aloof, out of it, constricted pupils, talked in low, slow voice, was unsure how he rear-ended victim vehicle and was inattentive before accident.


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Hegstrom case (cont.)

� Expert testimony not required to establish PC that defendant was under influence of controlled substance

� There’s no defined level of chemical concentration at which a person is presumed to be under influence of controlled substance


� State v. Cammack, 1997 WL 1049913 (Minn. Ct. App. 1997)


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Cammack case

� Trial court suppressed statements made after start of DRE evaluation due to Miranda violations

� DRE’s observations of defendant, including his performance on divided attention tests, were admissible since this evidence was not product of in custody interrogation

Cammack case (cont.)

� DRE need not complete entire 12 step evaluation for opinion to be admissible so long as there’s sufficient admissible evidence which supports DRE’s opinion

� Affirmed conviction since there was sufficient evidence, including DRE’s opinion


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DRE-related case law

� Jenkins v. Commissioner of Public Safety, 1997 WL 714740 (Minn. Ct. App. 1997)

� Holding: Expert testimony (DRE evaluation) not required to establish PC that driver was under influence of controlled substance such that refusal to take test may result in DL revocation

DRE-related case

� State v. Bollin, 2000 WL 1146293 (Minn. Ct. App. 2000)

� Holding: Effects and amount of controlled substances present in defendant’s body were irrelevant to CVO charge involving presence of controlled substances


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State v. Miller

� State v. Miller, 2002 WL 171933 (Minn. Ct. App. 2002)

� Officer had reasonable & articulable suspicion to search & seize driver (nervous, shaking hands, uncoordinated, memory problems, evasive) as behavior was consistent with being under influence of controlled substances

Plocher v. Commissioner of Public Safety

� Plocher v. Commissioner of Public Safety, 2006 Lexis 74 (Minn. Ct. App. 2006)

� DRE or expert opinion not needed to determine PC

� Sufficient PC: driver uncooperative, nervous, shaky, fidgeting, blood-shot eyes, faint odor of alcohol, fled scene.


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Lund v. Commissioner of Public Safety

� Lund v. Commissioner of Public Safety, (Minn. Ct. App. 2006)

� Arresting Officer and DRE’s observations of driver and during DRE evaluation provided credible testimony to support that the Commissioner had good cause to believe that the driver had violated the total-abstinence restriction on his driving privileges.

State v. Sarah Alan

� State v. Sarah Alan, (Minn. Ct. App. 2007)

� Upon appeal after jury trial Court of Appeals held that there was sufficient evidence to sustain defendant’s conviction for DWI (marijuana).

� Evidence of impairment by marijuana based on DRE evaluation: elevated pulse, dilated pupils, poor performance on balancing tests, eyelid tremors, and positive blood test for THC.


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State v. Huffman

� State v. Huffman, (Minn. Ct. App. 2007)� Appeals court held that there was probable cause or

exigent circumstances to support nonconsensual withdrawal of defendant’s blood after accident with injuries – upheld convictions for CVO and DWI per se controlled substances.

� Defendant: sideswiped stopped trooper’s squad, eyes watery and red, spoke rapidly, repeated himself, sweating profusely in cold, verbally combative, somewhat jittery, and confused.

� Amphetamine and methamphetamine are schedule II (not III) controlled substances and state is not required to show that these drugs had a stimulant effect on the central nervous system.

State v. Suber

� State v. Suber, (Minn. Ct. App. 2008)� Defendant displayed numerous indicia of being under

the influence and after performing a drug influence evaluation, the DRE formed the opinion that Defendant was under the influence of cannabis. The district court found defendant guilty of 2nd degree DWI controlled substance.

� The Court of Appeals, however, reversed the conviction finding the evidence to be insufficient: “evidence of Suber’s Asperger’s Syndrome and sleep deprivation, as well as the lack of any evidence of marijuana use in the hours leading up to the time of the accident, point to an innocent explanation of Suber’s observed behavior and suspected indicia of impairment.”


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State v. Urban

� State v. Urban, (Minn. Ct. App. 2009)

� District Court did not err in allowing state to present Spriegl evidence of a subsequent arrest only on rebuttal, for limited purpose of impeaching any potential claim by Urban regarding mistaken belief that prescription drugs he took had no effect on his driving ability.

� Refusal of all testing preempted requirement of alternative test when urine test refused.

� Urban’s Miranda rights not violated when questioned about prescription drug use at traffic stop.

State v. Selle

� State v. Selle, 2011 WL 5829348 (Minn. Ct. App. 2011)

� The Court of Appeals reversed and remanded a lower court decision where probable cause was not found finding that there was probable cause to arrest for DWI, noting that an officer needs only one objective indication of intoxication to constitute probable cause to believe a person is under the influence or alcohol or drugs.


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State v. Selle (cont.)

� The probable cause to support the arrest in this case was the odor of marijuana, an admission to using marijuana earlier in the day, inconsistent explanations for the accident, slow and slurred speech, the nature of the accident.

Peppin v. Commissioner of Public Safety

� Peppin v. Commissioner of Public Safety,2012 WL 5990267 (Minn. Ct. App. 2012) (review denied 2/27/2013)

� Held: The warrantless collection of urine (for drug testing) is justified on both the consent and exigent-circumstances exceptions to warrant requirement.

� Held: The Fourth Amendment does not require a warrant to analyze toxicological samples (urine testing for drugs in this case).


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State v. Taylor

� State v. Taylor, 2014 WL 621322 (Minn. Ct. App. 2014)

� Taylor was found unconscious in driver’s seat of vehicle stopped in middle of road. She admitted to taking Valium and something for depression and anxiety. After implied consent, Taylor refused urine and blood test.

� Court of Appeals held that the warrantless attempt to collect Taylor’s urine sample was constitutional under the consent exception to the warrant requirement, and the manner in which the search was conducted was reasonable (same sex officer not available).

State v. Sam

� State v. Sam, 2014 WL 996492 (Minn. App. 2014)

� Defendant challenged DWI conviction asserting prescription drug defense.

� Defendant had prescription for Vicodin (hydrocodone and hydromorphone), but her blood contained oxycodone and oxymorphone.

� Intent not required for DWI – State did not need to prove that Defendant knew which controlled substances were in her blood.


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State v. Scheffler

� State v. Scheffler, 2014 WL 4957113 (Minn. Ct. App. 2014)

� State did not need warrant where Defendant consented to blood test after being read the implied consent advisory.

� Blood contained oxycodone, clonazepam and marijuana metabolites. Defendant admitted only to Clonazepam, Paroxetine and Trazodone.

� Evidence sufficient (poor driving and obvious impairment)to support DWI controlled substance conviction where Defendant claimed impairment was from anxiety, lack of food and sleep deprivation.

O’Connell v. State

� O’Connell v. State, 858 N.W.2d 161 (Minn. Ct. App. 2015)

� U.S. Supreme Court decision in Missouri v. McNeely does not apply retroactively on collateral review of a final conviction (motion to reverse conviction and withdraw guilty plea based on McNeely).

� Defendant was weaving in traffic, under speed limit, dilated pupils, slow response to questions, poor SFST’s.

� DRE evaluation with opinion of CNSS.

� Urine test result presence of amphetamines.

� District Court denied motions to suppress urine test and to dismiss for no PC.


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Dornbusch v. Commissioner of Public Safety

� Dornbusch v. Commissioner of Public Safety, 860 N.W.2d 381 (Minn. Ct. App. 2015).

� There is no prescription defense in implied consent proceedings.

State v. Bachman

� State v. Bachman, 2016 WL 1551660 (Minn. Ct. App. 2016)

� Not all witnesses are needed for chain of custody for blood testing – Officer’s testimony that she observed phlebotomist draw driver’s blood, that that vial of blood was sealed in test kit and transported to BCA was sufficient foundation for BCA report.

� BCA forensic toxicologist was allowed to testify regarding medical nature and effects of Zolpidem (Ambien) based on training and experience.


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State v. Goblish

� State v. Goblish, 2016 WL 2615749 (Minn. Ct. App. 2016)

� In a prosecution for DWI when any amount of a controlled substance is present in the body, involving amphetamine and methamphetamine , the State need not prove that either of these drugs has a stimulant effect on the central nervous system.

State v. Schlingmann

� State v. Schlingmann, 2016 WL 3461854 (Minn. Ct. App. 2016)

� Defendant tested positive for amphetamine and was found guilty of DWI – presence in body.

� Court reversed, suppressing blood test results, holding that Defendant’s consent to blood test was not free and voluntary after being read the implied consent advisory and agreeing to blood test because she had been in an accident, was disoriented, and was unable to clearly communicate or cooperate with the officer.

� “…[Defendant] was not mentally capable of understanding the advisory or the significance of the decision it asked her to make.”


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Birchfield v. North Dakota

� June 23, 2016 - United States Supreme Court

� Breath tests are searches incident to arrest so a driver who refuses may be charged with refusal.

� Blood tests are not searches incident to arrest so a driver who refuses may not be charged with refusal.

� Officers need a search warrant or exception to warrant requirement (e.g., consent, exigent circumstances) to take a blood sample.

� This decision did not rule on urine samples or implied consent consequences for refusal.

Impact of Birchfield

� In light of the holding in Birchfield regarding criminal charges for blood test refusals, and the uncertainty regarding its impact on criminal charges for urine test refusals, Officers in Minnesota are being advised to obtain search warrants in DWI cases involving drugs other than alcohol.


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Effect of a DWI-controlled substance arrest or conviction on driver’s license

� DL revocation upon conviction for DWI-controlled substance

� Refusal to take blood or urine test pursuant to implied consent will result in DL revocation, even after breath test is taken

� DL revocation if tests positive for schedule I or II controlled substance or its metabolite, excluding marijuana

� Officers may send in a “Request for Examination of Driver” form to DPS in all DRE cases (available on DVS website; Public Safety Form PS31924) - may result in request for interview, with failure to comply resulting in DL suspension


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Common Defenses

� Alternative explanations for behavior

� Defendant using drugs but not under the influence

� Not under influence at time of driving

� Defendant was using the drug legitimately

� Lack of bad driving behavior

� Alternative explanations for driving conduct

Prescription Use Affirmative Defense

� Under section 169A.46, subd. 2 it is an affirmative defense to the per se law if a driver used a controlled substance according to the terms of a prescription.

� Burden is on defense to prove by a preponderance of the evidence that the defendant used the controlled substance according to the terms of a prescription.

� Only a defense to the per se law (169A.20, subd. 1(7)), not to the under the influence law (169A.20, subd. 1(2)).

� Does not apply in implied consent proceedings.


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Areas of Confusion

� Confusion as to what is a controlled substance –zolpidem, lorazepam.

� There is confusion regarding the applicability of the prescription defense – it only applies to the per se law, not to the under the influence law.

� There is also confusion about DWI marijuana –can charge if under the influence despite exception in per se law.

� Under the influence count, 169A.20, subd. 1(2) vs. per se count, 169A.20, subd. 1(7).

Drugs that Mpls prosecutors see most often:

� Narcotics, especially heroin (causes crashes)

� Prescription drug abuse

– Pain Killers

– Tranquilizers

– Antidepressants

– Methadone

– Adderall (amphetamine)


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What other drugs are being used? (cont.)

� Methamphetamine

� Methadone

� PCP in marijuana cigarettes

� Cocaine and its metabolite

� Zolpidem (Ambien)

� Combinations

Dust-Off

� Dust-off is being seen more often as being used by impaired drivers.

� Dust-off appears as 1, 1-difluoroetheane in the tox sample, but it is not currently specifically listed as a hazardous substance in the Minnesota Rules, so such cases may or may not be prosecuted.

� State v. Carson (Steele County District Court May 11, 2015). Held that 1, 1-Difluouroethane is a Hazardous Substance under Minnesota Law.


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Marijuana remains common

� THC can not be found in urine - only THC metabolite is found

� THC will only be found in blood

� A level will be reported for blood, but not urine

� Officers are advised to try to get a blood sample if cannabis is suspected.

Pop Quiz!


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Question # 1

� Is it a crime in Minnesota to drive while under the influence of any type of drug?

Answer to Question # 1

�No


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Applicable Statues: What is a Crime? (Minn. Stat. § 169A.20)


� (1) alcohol

� (2) controlled substances

� (3) hazardous substance

� (4) combination of (1), (2) &/or (3)

Question # 2

� Is it a crime in Minnesota to drive while any drug is present in a person’s body?


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�No

What is a crime? (cont.) Per se Laws


� . . . .

� (5) AC of over .08 or .08 within 2 hours of driving

� (6) commercial vehicle and AC of .04 or more within 2 hours of driving

� (7) while schedule I or II controlled substance, or its metabolite, (except marijuana) is present in body. .


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Question # 3

� Is it a crime to drive while marijuana is present in the body?


�No


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What is not a crime (cont.)

� driving while marijuana or a schedule III, IV or V drug is present in your body

� A person must be under the influence of marijuana to be prosecuted under Minnesota’s DWI laws.

Question # 4

� Is a DRE’s opinion admissible in Court?


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�Yes

Minnesota DRE Case Law

� State v. Klawitter, 518 N.W.2d 577 (Minn. 1994)


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Question # 5

� Is it a defense to the DWI controlled substance laws if a person has a prescription?


� Maybe– Not a defense to the DWI under the influence

law

– May be a defense to the per se controlled substance law


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Question # 6

� Is a DRE required to complete the entire 12-step evaluation before rendering an opinion?


�No


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� State v. Cammack, 1997 WL 1049913 (Minn. Ct. App. 1997)

Cammack case

� Trial court suppressed statements made after start of DRE evaluation due to Miranda violations

� DRE’s observations of defendant, including his performance on divided attention tests, were admissible since this evidence was not product of in custody interrogation


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Cammack case (cont.)

� DRE need not complete entire 12 step evaluation for opinion to be admissible so long as there’s sufficient admissible evidence which supports DRE’s opinion

� Affirmed conviction since there was sufficient evidence, including DRE’s opinion

Question # 7

� Is a DRE evaluation required to establish probable cause to invoke the implied consent law regarding controlled substances?


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�No

DRE-related case law

� Jenkins v. Commissioner of Public Safety, 1997 WL 714740 (Minn. Ct. App. 1997)

� Holding: Expert testimony (DRE evaluation) not required to establish PC that driver was under influence of controlled substance such that refusal to take test may result in DL revocation


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Plocher v. Commissioner of Public Safety

� Plocher v. Commissioner of Public Safety, 2006 Lexis 74 (Minn. Ct. App. 2006)

� DRE or expert opinion not needed to determine PC

� Sufficient PC: driver uncooperative, nervous, shaky, fidgeting, blood-shot eyes, faint odor of alcohol, fled scene.

Question # 8

� Are all controlled substances listed in § 152.02?


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Answer to question # 8

�No

What is a controlled substance?

� Minn. Stat. § 152.02 – five schedules.

� Minn. Stat. § 152.02, subd. 7 – Board of Pharmacy is authorized to regulate and define additional controlled substances.

� Minn. Rules § 6800.4210 et. seq.

� Substances scheduled by rule are incorporated in the statutory schedules. State v. King, 257 N.W.2d 698 (Minn. 1977); State v. Verschelde, 595 N.W.2d 192 (Minn. 1999)


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Useful web-sites with DRE-related information:

� The International Drug Evaluation & Classification Program: www.decp.org

� Minnesota: www.dwitaskforce.com

� New Mexico: www.dontdrivedruggednm.org� National Traffic Law Center (National District Attorneys

Association): www.ndaa.org (under programs, go to traffic law)

44 Canal Center Plaza, Suite 110

Alexandria, VA 22314

703.549.9222

Fax: 703.836.3195

Questions?

Karen S. Mara

Assistant Minneapolis City Attorney

350 South 5th Street – City Hall, Room 210

Minneapolis, MN 553415

612-673-2579 [email protected]

dwi deskbook – controlled substances: statutes & cases

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