Marijuana & DrivingGrowing Issues for the Courts

Chicago, IllinoisSeptember 17, 2019

Moderator Judge Mary A. Celeste, Colorado

Prosecutor David Cutshall, Massachusetts

Defense Attorney Jeff Gard, Colorado Toxicologist Dr. Jerry Leikin, Illinois

• Introductions (Celeste)

• Current marijuana driving laws (Celeste)

• Admissibility of DREs & Toxicologists• as Experts (Cutshall)

• Pharmacology/Toxicology Cannabis (Leikin)

• Types of Motions before the Court in marijuana driving cases (Gard)

• Fact Pattern w/mock examinations

• Additional developing issues (Celeste)

• Q & A

Current Status Marijuana Driving Laws

Celeste

2019

CBD States

Illinois Recreational

Marijuana Bill

• Cannabis Regulation and Tax Act (HB1438-SFA2• Illinois Senate approved recreational use of

marijuana after universal home cultivation of the plant was replaced by a provision allowing only medical-marijuana patients to grow their own

• HB 1438 legalize the possession and purchase of up to 30 grams of cannabis for adults

• Establish an inclusive, regulated market for cultivators, processors, transporters, retail stores, and testing labs.

• As of January 1, 2020. • In addition to legalizing possession and sales for

adults, the bill adds the option for medical patients to grow cannabis at home and creates cannabis-related training opportunities at local community colleges.

MJ Driving Laws

18 states have zero tolerance or non-zero per se laws for marijuana.

9 states have zero tolerance for THC or a metabolite.

3 states have zero tolerance for THC but no restriction on metabolites.

6 states have specific per se limits for THC

1 state (Colorado) has a reasonable inference law for THC

8

State “Per Se” Laws

Note that a serum THC level of 4 to 10 ng/ml is equivalent to a whole

blood THC level of 2 to 5 ng/ml

• Ohio/Nevada- whole blood limit of 2 ng/ml

• Pennsylvania (44Pa.B.132) “Minimum levels of controlled substances or their metabolites in blood to establish presence of controlled substances”

• Delta-9-THC 0.4 ng/ml• THC-OH 1 ng/ml• THC-COOH 1 ng/ml

• Washington 5 ng/ml with impaired driving observation

• Colorado (42-4-1301): 5 ng/ml or higher; “such fact gives rise to permissible inference that the defendant was under the influence.” Driver must prove that he/she is not impaired-reasonable inference.

• Montana: ≥ 5 ng/ml (medical marijuana)

State “Per Se” Laws

Illinois:Until recently, Illinois had a zero-tolerance approach to driving under theinfluence of marijuana.

As of July 29th, 2016, this law has changed to create a legallimit of 5 ng for the amount of THCa person may have in their blood whileoperating a motor vehicle.

Maine: 5.0 ng/ml blood 2018

Admissibility DREs & Toxicologists

Cutshall

DRE TESTIMONY

States & Admissibility ADMISSIBLE AS EXPERT

ADMISSIBLE AS “LAY” OPINION BY

WITNESS WITH SPECIAL

KNOWLEDGE

ADMISSIBLE UNDER STATUTE

NC, HI, NY, MAINE

12

Admissibility of DREs as ExpertsCurrent Lay of the Land

Frye test

“General acceptance”

Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923)

Issues:

Too restrictive

How do you know when something is generally accepted?

Daubert test

Scientific reliability

Daubert v. Merrell Dow Pharma., Inc., 508 U.S. 579 (1992)

Daubert test

Extends to expertise based on technical or other specialized knowledgeKumho Tire v. Carmichael, 526 U.S.137 (1999)

Issues:

Too lenient?

Issues: “Frye relies on the scientific community to

determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used.”

Issues:Delisle v. Crane, Fla. Supreme Court #16-2182

(2018)

F.R.E. 702

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

Rule 702

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

Rule 702

(b) the testimony is based on sufficient facts or data;

Rule 702

(c) the testimony is the product of reliable principles and methods; and

Rule 702

(d) the expert has reliably applied the principles and methods to the facts of the case.

Illinois• Ill. R. Evid. 702 confirms that Illinois is a Frye state.

• The second sentence of the rule enunciates the core principles of the Frye test for admissibility of scientific evidence as set forth in Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314 (2002)

Peculiar states

New Jersey

In re Accutane Litig., 234 N.J. 340 (2018)

Peculiar states

Virginia

VA. CODE ANN. §8.01-401.1

Rule 2:702(a)(ii)

Peculiar states

Nevada

Higgs v. State, 222 P.3d 648 (2010)

Peculiar states

North Dakota

State v. Hernandez, 707 N.W. 2d 449 (2005)

Pharmacology/Toxicology Cannabis

Leikin

Pharmacokinetic ParametersMarijuana – Alcohol

Marijuana Alcohol

Absorption Lungs (14-50%)

GI

Half-life 30-57 hours A few hours

Metabolism Liver to over 20

metabolites (3 active)

Liver to oneinactivemetabolite

Solubility Fat Water

Conclusion Unpredictable Predictable

• Blood alcohol concentration (BAC) after the rapid consumption of different amounts of alcohol by eight adult fasting male subjects.* (Adapted from Wilkinson et al., Journal of Pharmacokinetics and Biopharmaceutics5(3):207-224, 1977.)

Ref: Huestis, et al., “Absorption of THC and formation of 11-OH-THC and THC-COOH during and after smoking marijuana,”

Journal of Analytical Toxicology, 1992, 16, pp. 276-82.

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Analytical Parameters for Impairment(social “joint” use)

• Serum THC over 1ng/ml - a sign of acute impairment

• Urinary cannabinoid metabolites over 100 ng/ml is compatible with recent use

Ref: Huestis M, Mitchell JM, Cone EJ. J Anal Tox. 1995; (19): 443-49

Motions for Use Marijuana Driving Cases

Motions Motion to Challenge Admissibility of SFSTs• No validation studies• Not established science• Officer not qualified to opine about SFST and cannabis impairment

Motion to Challenge Admissibility of Blood Test Results• THC levels do not equate to impairment levels• Rule 403: confusion of issues, likelihood of unfair prejudice• Science not sufficiently developed

MotionsMotion to Challenge Toxicologist Opinions about Blood Level Impairment• Forensic Toxicology too broad, not enough training in cannabis specific issues• Opinions based on fledgling science

Motion for Discovery: Law Enforcement Qualifications• SFST• DUI, especially DUID specific training• Needed for proper cross examination• Consider designating as expert

Motions

Motion to Suppress: Reasonable Suspicion• Smell of cannabis not reasonable suspicion and cause for search• Cannabis not presumptively illegal

Shreck and/or Daubert Motions• Use to challenge science of equating THC blood levels to impairment• Use to challenge the DRE• Use to challenge the toxicologist• Preclude retrograde extrapolation testimony

Fact Patterns

60 year old woman

Stopped for tail light violation

Able to retrieve and tender all

documents requested

Plain view pipe

No indicia of marijuana

impairment

Medical marijuana

card

No admission to use that

day

No HGN; 2 clues OLS

28/30 modified Romberg

Toxicology Report9 Active THC

200 ng cc CarboxyCopyright Celeste 42

Mock Direct/CrossExamination

Toxicologist

Additional Developing

Issues

Indicia of Marijuana Impairment Developing Cases

Medical Marijuana Use Probation/Parole & Pretrial Release

Blood Draws McNeely; Birchfield; Mitchell

HGN Applicable to Drugs?

According to the 1993 NHTSA Manual, HGN can recognize "CNS Depressants", PCP, and "Inhalants". Because they affect the same neural centers as alcohol

It cannot detect CNS Stimulants, Hallucinogens, Narcotic Analgesics, or Cannabis. (Chapter V, Page 1)

(c) Celeste 45

Indicia of THC Impairment

Officer Could Not Testify as

Expert

No Scientific Basis

(c) Celeste 46

In People v. Kavanaugh, 72 N.E.3d 394 (Ill. App. 2016), Lack of convergence

Commonwealth v. Gause, 164 A.3d 532 (PA Super. 2017) eyelid and body tremors

State v. Hechtle, 2004 UT App 96, ¶ 13, 89 P.3d 185, 190, green tongue

Use of Medical Marijuana

Probation/Parole Pretrial-Release

People v. Tilehkooh, 113 Cal. App. 4th

1433 (2003) California Court of Appeal reversed a probation revocation

People v. Leal, 210 Cal. App. 4th 829a trial court has inherentauthority and discretion to consider limiting or banning the probationer's use of medical marijuana. The underlying conviction was for MJ possession.

Colorado Revised Statutes, 18-1.3-204, amend (2) (a) (VIII) as follows: 18-1.3-204.

Use of Medical Marijuana

Probation/Parole Pretrial-Release

When granting probation, the court may, as a condition of probation, require that the defendant: (VIII) Refrain from excessive use of alcohol or any unlawful use of controlled substances, as defined in section 18-18-102 (5), or of any other dangerous or abusable drug without a prescription; except that the court shall not, as a condition of probation, prohibit the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution. UNLESS UNDERLYING CONVICTION MARIJUANA BASED

Use of Medical Marijuana

Probation/Parole Pretrial-Release

Use of Medical MarijuanaProbation/Parole/Pretrial-Release

• State v. Hancock, No. CV-14-0084-PR (April 7, 2015) Probation could NOT be revoked for medical marijuana use

• PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED January 12, 2017 v No. 327798 Oakland Circuit Court DENNIS RAY MAGYARI, LC No. 2014-252567-FH Defendant-Appellant.

• Court of Appeals of Michigan (unpublished opinion). The trial court provided ample support for finding that a prohibition on defendant’s medical marijuana use while on probation, had alogical relationship to the crimes of which defendant was convicted and was reasonably related to deterring his future drug abuse and criminality.

Use of Medical MarijuanaProbation/Parole/Pretrial-Release

United States v. Harvey, 659 F.3d 1272, 1274 (9th Cir. 2011) No use on pre-trial release

U. S. v. Small, ___F. Supp. 3d ___,Cause No. CR-10-91-BLG-RFC (D. Mont. 2010) No use pre-trial release

United States v. Arizaga NY Court Conditionally Permits Medical Marijuana Use on Pre-trial Release United States District Court, S.D. New York. December 22, 2016 Not Reported in Fed. Supp.2016 WL 7974826

Use of Medical Marijuana

Probation/Parole Pretrial-Release

United States v. Schostag United States Court of Appeals, Eighth Circuit. July 13, 2018 895 F.3d 1025Probation officer filed supervised release violation report after defendant tested positive for marijuana

.Holding: The Court of Appeals held that district court had no discretion to allow defendant to use medical marijuana.

United States v. Johnson, 228 F.Supp.3d 57, 62 (D.D.C. 2017) (determining individuals may be “prohibited from using state-sanctioned medical marijuana while under federal court supervision”).

Blood DrawsImplied Consent

McNeeley that "{W}hen officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. Circumstances may make obtaining a warrant impractical such that the alcohol's dissipation will support an exigency, but that is a reason to decide each case on its facts...." The Court left open the issue of “exigency

Blood DrawsImplied Consent

Birchfield Warrantless Blood Draw Search Incident to Arrest“…we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving”

Also Invalidated implied consent when criminal penalties are levied for refusing to submit to a blood test

Blood DrawsImplied Consent

Gerald P. Mitchell was arrested for operating a vehicle while intoxicated. He became lethargic on the way to the police station, so the arresting officers took him to a hospital instead. An officer read him a statutorily mandated form regarding the state implied consent law, but Mitchell was too incapacitated to indicate his understanding or consent and then fell unconscious. Without a warrant, at the request of the police, hospital workers drew Mitchell’s blood, which revealed his blood alcohol concentration to be.

Blood DrawsImplied Consent

Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

Courts in 7 other states have held that that implied-consent laws constitute an exception to the warrant requirement, at least with respect to unconscious drivers.

Blood DrawsImplied Consent

Holding: Wisconsin’s statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment requirement because consent given when driving on roads and incapacitation obviates need to consent. The Court stated that “…exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconsciousMore than half the States have provisions like this one regarding unconscious drivers.