The court of appeals held yesterday in State v. Fincher, ___ N.C. App. ___, ___ S.E.2d ____ (2018), that the trial court did not abuse its discretion when it permitted a drug recognition expert to testify in a DWI trial that the defendant was under the influence of a central nervous system depressant. The defendant argued that the State failed to lay a sufficient foundation to establish the reliability of the drug recognition examination, but the court determined that no such foundation was required as the General Assembly had legislatively sanctioned the admission of this type of evidence under Rule 702(a1)(2).
Tag Archives: drugged driving
Last week I wrote about studies examining the prevalence of driving with drugs in one’s system. Research has shown that an increasing number of drivers have detectable drugs in their symptoms. What we don’t yet know is how many of those drivers are impaired by drugs and whether the incidence of drug-impaired driving is increasing.
We do know, of course, that drug-impaired driving is dangerous. Policy-makers in North Carolina and elsewhere have attempted to combat the problem by enacting zero-drug-tolerance laws and provisions that prohibit driving with a threshold of a drug or its metabolites in one’s body. And law enforcement officers across the country have created detection protocols that are geared specifically toward the drug-impaired driver rather than a driver impaired by alcohol.
Notwithstanding these measures, drug-impaired driving continues to be prosecuted in North Carolina and other states under statutory schemes and law enforcement protocol that were primarily written and developed to deter, detect and punish alcohol-impaired driving.
Courts across the country are increasingly being required to consider how those schemes and that protocol apply to drug-impaired driving prosecutions. This post will summarize recent court rulings on the admissibility in drugged driving prosecutions of (1) evidence regarding a defendant’s performance on field sobriety tests, (2) testimony about the effects of certain drugs, and (3) lay opinion testimony about the person’s impairment. It will also review recent opinions regarding the quantum of proof necessary to establish drug-impaired driving. It will conclude with a case that demonstrates why drugged driving is a matter of serious concern.
Ask someone to identify an emerging area of interest related to motor vehicle law and chances are the person will mention drugged driving. Indeed, the U.S. Office of National Drug Control Policy in 2010 set a goal of reducing the prevalence of drug-impaired driving by 10 percent by 2015. People who work in the field frequently cite anecdotal evidence supporting the notion that driving while impaired by drugs is becoming more common. And they usually cite anecdotal evidence in support. Are they right? Are more people these days driving while impaired by drugs?
Proving that a driver was impaired by alcohol is not all that difficult, particularly when the driver submits to a breath test and the result is .08 or more. Proving that a driver was impaired by drugs or by a combination of alcohol and drugs is considerably more challenging. But an opinion released yesterday by the court of appeals demonstrates one way in which it can be done, even without a confirmatory chemical test. Continue reading →
To prove that a person drove a vehicle while under the influence of an impairing substance in violation of G.S. 20-138.1(a)(3), the State must establish that the defendant was impaired by
- [a]lcohol ,
- a controlled substance under Chapter 90 of the General Statutes,
- some other drug or psychoactive substance capable of impairing a person’s physical or mental faculties, or
- a combination of these substances.
G.S. 20-4.01(14a) (defining impairing substance).
When a defendant is tried before a jury on such charges, who determines whether the defendant was so impaired? Obviously it is the jury. Right?
Pattern Jury Instructions. Readers may be surprised to learn that the pattern jury instructions direct the judge in such a case to tell the jury: “(Name substance involved) is an impairing substance.” North Carolina Pattern Instructions—Criminal 270.00. The judge then goes on to state that the defendant “is under the influence of an impairing substance when the defendant has taken (or consumed) a sufficient quantity of that substance to cause the defendant to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of those faculties.” Id.
Is an instruction from the judge that a particular substance is an impairing substance proper? Or does it improperly permit the judge to resolve a material fact, namely whether the specific substance the defendant is alleged to have taken or consumed is an impairing substance? The answer probably depends on the substance. For example, a judge’s instruction to the jury that “alcohol” or “a controlled substance under Chapter 90” is an impairing substance would not invade the province of the jury. That sort of instruction simply defines the term “impairing substance.” Likewise, an instruction that “a drug or psychoactive substance capable of impairing a person’s physical or mental faculties is an impairing substance,” is not objectionable.
Furthermore, there would appear to be no problem with a judge instructing the jury that any of the specific substances listed in Chapter 90 is an impairing substance. Thus, the judge could properly inform the jury that a substance such as cocaine, alprazolam (Xanax), or zolpidem (Ambien) is an impairing substance. See G.S. 90-90(1)c.; 90-92(a)(1)a.; 90-92(a)(1)ww.
In some drugged driving cases, however, the substance that a defendant is alleged to have consumed is not a controlled substance under Chapter 90. The State may contend, for example, that a defendant is impaired from inhalants or from prescription medication that is not a scheduled controlled substance. In this circumstance, it seems to me that it would be improper for the judge to instruct the jury that the specified drug (such as, for example, sertraline (Zoloft)) is an impairing substance.
Deadly Weapon Analogy. There is at least one other circumstance in which our state appellate courts have permitted judges to instruct the jury as to its determination on a material fact. In State v. Torain, 316 N.C. 111 (1986), the state supreme court determined that the trial court did not err in instructing the jury in a first-degree rape trial that “a utility knife is a dangerous or deadly weapon.” Id. at 116. The court relied on earlier opinions stating that when “the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly, . . . is one of law, and the Court must take the responsibility of so declaring.” Id. at 119 (internal citations omitted). Even were this reasoning to be applied in the drugged driving context, however, it likely would authorize no more than instructing the jury that a specific substance scheduled under Chapter 90 is an impairing substance. Those substances are per se impairing in much the same way that certain weapons are per se deadly. The judge still must leave to the jury the determination of whether other types of “drugs or psychoactive substances” are impairing substances. Cf. Jessica Smith, North Carolina Crimes 120-121 (7th ed. 2012) (distinguishing circumstances involving weapons that “are deadly by their very nature” from those in which the jury must be permitted to decide whether the weapon is deadly).
What if the State fails to identify the impairing substance? In some circumstances, the State is unable to definitively identify the substance by which a defendant allegedly was impaired. This is not fatal to its case, however, as there is no requirement that the State prove the specific impairing substance consumed. See State v. Lindley, 286 N.C. 255 (1974) (state established prima facie case based in part on patrol officer’s testimony that the defendant was under the influence of “some drug”); State v. Cousins, No. COA01-796, 152 N.C. App. 478 (2002) (unpublished) (evidence of defendant’s poor performance on field sobriety tests, his refusal to submit to a blood test, and his admission to taking Lortab, a painkiller, were sufficient to show that he was impaired and that his impairment was caused by an impairing substance; the State was not required to produce expert testimony on the impairing effects of Lortab and whether defendant’s condition was consistent with someone who had taken Lortab). When this occurs, the court should instruct the jury on the definition of “impairing substance,” but should refrain from identifying any particular substance for which the State has failed to establish a prima facie case.
Drunk driving has long been a phrase in the national lexicon of terms related driving and public safety. Over the past decade, a companion term—drugged driving—has entered into common usage as policy makers have focused their attention on reducing the incidence of driving while impaired by substances other than alcohol.
The problem, of course, is not new. North Carolina law has long prohibited driving while under the influence of an impairing substance. See G.S. 20-138.1(a)(1). The term impairing substance is broadly defined to include the following substances:
- A controlled substance under Chapter 90;
- Any drug or psychoactive substance capable of impairing a person’s physical or mental faculties; or
- Any combination of these substances.
G.S. 20-4.01(14a). Thus, prescription as well as illicit drugs may qualify as impairing substances as may over-the-counter medications and other psychoactive substances, like inhalants, depending upon their potential effect on the body. The fact that person is legally entitled to use a particular drug is not a defense to a charged of impaired driving, see G.S. 20-138.1(b), though it may be a mitigating factor at sentencing, see G.S. 20-179(e)(5).
A person is considered to be under the influence of an impairing substance when the person’s “physical or mental faculties, or both, are appreciably impaired” by the substance. G.S. 20-4.01(48b).
How does the State prove that a person was appreciably impaired by an impairing substance other than alcohol? While no particular form of evidence is required, “evidence of some impairing substance is essential . . . by some means.” Ben F. Loeb, Jr. and James C. Drennan, Motor Vehicle Law and the Law of Impaired Driving in North Carolina 78 (2000 ed.). The State does not have to prove the specific drug consumed.
Drug Recognition Expert combined with chemical analysis. In the State’s ideal case, it would elicit testimony from an officer certified as a Drug Recognition Expert (DRE) regarding the defendant’s impairment and its cause along with testimony from a chemical analyst corroborating the DRE’s conclusions. In many cases, however, no DRE will be available to examine the defendant. The results of a chemical analysis, standing alone, may be inconclusive. The analysis may not reveal how recently the substance was ingested or the level of concentration of a particular drug. In addition, the chemical analyst may lack the necessary expertise to testify about the impairing effects of a particular substance. (If I’ve overstated the limitations of a chemical analyses or the expertise of forensic chemists in the preceding sentences, I trust that more informed readers will set me straight.) Fortunately for the State, it can establish impairment by drugs in a less ironclad way.
Opinion testimony from experienced officer. In State v. Lindley, 286 N.C. 255 (1974), the state supreme court held that the trial court in an impaired driving case properly allowed a patrol officer with five years’ experience to testify that in his opinion the defendant was under the influence of some drug. The officer in Lindley stopped the defendant for erratic driving. When the defendant got out of his car, the officer saw that he was unsteady on his feet, the pupils of his eyes were contracted nearly to pinpoints, and there was a white substance on his lips. Two passengers in the car were in the same condition. The officer smelled no alcohol on the defendant, who subsequently performed poorly on dexterity tests and appeared to be in a mental stupor. The officer ruled out other causes of the defendant’s condition by asking whether he had diabetes, had physical defects, was sick, limped, had been injured, had seen a doctor or dentist lately, or had taken any medication. The defendant answered no to all of these questions. Based on this knowledge, the officer concluded that the defendant was under the influence of a drug. The state supreme court held that the officer was competent to express that opinion as he was better qualified than the jury to draw inferences and conclusions from what he heard. The court also held that the State’s evidence, which consisted solely of the officer’s testimony, was sufficient to establish a prima facie case.
Defendant’s admission corroborated by expert testimony. State v. Highsmith, 173 N.C. App. 600 (2005) illustrates another manner in which the State might establish impairment by drugs. After an officer stopped the defendant in Highsmith for erratic driving, the defendant said he was on the way home from the dentist and had taken a pain medication known as Floricet. The officer testified that the defendant’s movements were sluggish and his speech was slurred, but that he did not smell alcohol. At trial, the officer testified to his observations and the defendant’s statements. The State also elicited testimony from an expert in pharmaceuticals, who testified that Floricet was an impairing substance and that a healthcare professional should have warned the defendant of its effects. The court of appeals held that this evidence was sufficient to establish that the defendant drove while under the influence of an impairing substance.
Even given the variety of ways that the State can prove drugged driving, it seems to me that proving impairment by drugs is significantly more difficult than proving that the defendant violated a per se prong of the impaired driving statute (0.08 alcohol concentration or presence of Schedule I controlled substance) or that a defendant was appreciably impaired by alcohol.
Have you litigated many cases involving allegations of drugged driving? If so, let us hear from you about methods for proving and defending against such allegations.