marijuana”; an odor of marijuana; or observations by law enforcement of characteristics like bloodshot eyes, etc. and others as identified by the Gerhardt Court? Toxicology reports offering THC


blood concentration levels are themselves under scrutiny. Te NHTSA’s (National Highway Traffic Safety Administration) Report to Congress stated that seting per se levels is not meaningful3


and last year’s


AAA Traffic Safety Research Foundation concluded that “quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported.” If the toxicological findings also become an issue, then Massachusets may only be leſt with the Drug Recognition Expert (DR) observations as identified and sanctioned in the ruling: bad driving, physical evidence, odor, and inculpatory statements. Tis may cause the “road” to conviction


in marijuana driving cases to narrow in Massachusets and perhaps in other Daubert4


Massachusets is a Daubert state.5


states that may look to Gerhardt. Te


Federal courts and over half of the states use the Daubert standard for the admissibility of scientific evidence.6


Does this mean that


other courts will adopt the Massachusets analysis on the admissibility of SFST in marijuana driving cases even though the Massachusets decision is not binding on them? Is the Massachusets Supreme Court ruling in Gerhardt seting the stage for how the courts should treat SFST for marijuana impairment driving cases and maybe even all drugged driving cases? What about other drugs and driving


impairment? Based upon drivers in fatal crashes, a recent report authored by the Foundation for the Advancement of Alcohol Responsibility (FARS) and the Governors Highway Safety Administration (GHSA) found that 43% of fatal drivers involved in a crash had used a legal or illegal drug compared to 37% who tested above the


www.datia.org


illegal per se limit for alcohol.7


While this


information may be indicative of an increase in drugged driving fatalities as surpassing alcohol driver fatalities, the Report states that “[d]ata on drug presence in crash- involved drivers are incomplete in most jurisdictions, inconsistent from state to state, and sometimes inconsistent across jurisdictions within states.”8


Although FARS


has the best nationwide data on this mater, there are some data shortcomings because it only included the available data testing for 57% of those involved in crashes.9


It is also


important to note that driving under the influence of drugs does not necessarily mean that the driver was impaired while driving. All things considered, driving under the


influence of marijuana, and driving under the influence of drugs in general is an escalating problem for the roadway and the Courts. State trial and Supreme Courts will have to make important decisions about how to address the science, DREs and SFST in drugged driving cases. Will the Massachusets finding on marijuana and driving under a Daubert analysis influence how Courts will treat driving under the influence of other drugs as well? Slowly the answers will come. ❚


*Tis article is partially reprinted in the American Judges Association Court Review Winter 2017.


References 1. COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT, No. SJC-11967; http://www.wbur.org/ all-things-considered/2017/01/06/supreme-judicial-court- marijuana-driving


2. COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT, No. SJC-11967; http://www.wbur.org/ all-things-considered/2017/01/06/supreme-judicial-court- marijuana-driving


2. https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/ documents/812440-marijuana-impaired-driving-report-to- congress.pdf


4. Daubert v. Merrel Dow Pharmaceuticals, Inc. 43 F.3d 1311 (9th Cir. 1995). https://www.aaafoundation.org/sites/ default/files/EvaluationOfDriversInRelationToPerSe Report.pdf


The Daubert case 1993 was a U.S. Supreme Court case that changed the standard of review regarding the admissibility of scientific evidence from the earlier standard set forth in the U.S. Supreme Court case of Frye 1923. A few states still use the Frye standard while others use the Federal Rule 702. Daubert expanded the factors for the court to consider in granting the admission. The Daubert analysis looks to the following:


• Whether the theory or technique employed by the expert is generally accepted in the scientific community; • Whether it has been subjected to peer review and publication;


• Whether it can be and has been tested; • Whether the known or potential rate of error is acceptable; and • Whether the research was conducted independent of the particular litigation or dependent on an intention to provide the proposed testimony


5. Daubert v. Merrell Dow Pharmaceuticals (92-102), 509 U.S. 579 (1993)


6. See COMMONWEALTH vs. THOMAS J. LANIGAN.419 Mass. (1994)


7. See https://apps.americanbar.org/litigation/committees/ trialevidence/daubert-frye-survey.html; https://www.law. cornell.edu/wex/daubert_standard


8. http://www.ghsa.org/sites/default/files/2017-04/GHSA_ DruggedDriving2017_FINAL.pdf; http://thehill.com/policy/ transportation/330648-drivers-in-fatal-crashes-more-likely- to-be-on-drugs-than-alcohol


9. http://www.ghsa.org/sites/default/files/2017-04/GHSA_ DruggedDriving2017_FINAL.pdf


Judge Mary A. Celeste (ret.) sat on the Denver County Court bench from 2000–2015. She was the Presiding Judge in 2009 and 2010 and the co-founder of the Denver


County Court Sobriety Court. She is the current chair of the American Bar Association National Conference of Specialized Court Judges and Faculty for the National Center for DWI Courts (NCDC) and the National Judicial College (NJC). She has served as the President of the American Judge’s Association and the Colorado Women’s Bar Association Foundation, and as a National Highway Traffic Safety Administration (NHTSA) Judicial Outreach Liaison. She has written many articles, and is a national speaker on the topics of marijuana, marijuana drug impaired driving, and specialty courts. She has presented to NADCP, APPA, AJA, ABA, DATIA, NHTSA, Lifesavers, Pennsylvania DUI Association, Michigan and Louisiana Association of Drug Court Professionals, and to Judges, Specialty Court Conferences, and Safety Highway Offices in the States of Arizona, Arkansas, Colorado, Florida, Georgia, Pennsylvania, Massachusetts, Michigan, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, Texas, Utah, Washington, Wyoming, and in Canada.


datia focus 43


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52