DWI Courts: A Necessary Component in the Battle to End Impaired Driving - Justice Speaks Podcast

David Wallace, the Traffic Safety Guy, international expert on DWI (Driving While Impaired/Intoxicated) Courts, discusses what DWI Courts are and why they are needed to reduce impaired driving by substance-addicted individuals.

Impaired Driving is a Global Problem

1.2 million people are arrested for impaired driving in the U.S.

Impaired driving kills. The answer to ending impaired driving is: Stop drinking and driving. While a simple statement, the solution is far from effortless. Because a broad spectrum of individuals are arrested for DWI, different responses are required. In the United States, two-thirds of those arrested will not repeat the crime of impaired driving.  The arrest and conviction are sufficient wake-up calls. However, some individuals are addicted to alcohol or other drugs, and the traditional approaches do not work. They continue to drink, then drive, to be arrested and convicted. It becomes an unending cycle, as jail or prison does not change an addicted individual’s behavior. For this specific group of offenders, a different approach is needed. That different approach is a DWI Court.

Format of a DWI Court

DWI Courts are different from traditional courts. Based on the Drug Court model, DWI Courts hold repeat DWI offenders accountable and get them to become law abiding citizens by using long-term treatment and intensive supervision. In other words, DWI Courts go after the root cause, the addiction, by providing a comprehensive approach.

DWI Courts are team-oriented, with a Judge as the leader of the team.  Also represented on the team are:

Prosecutor

Defense counsel

Treatment provider

Court Coordinator

Probation officer, and

Law enforcement officer

Using treatment to address the why, the court uses its authority to help ensure that the person follows through by attending all treatment sessions, providing frequent and random samples for alcohol and drug testing, meeting with the judge on a regular basis, and following through with any other court orders specific to the individual (attending school, looking for a job, etc.). Everyone on the team is focused on making sure the offender complies with the court’s requirements.

Change is Hard

A judge is the team leader.

If an offender fails to comply, there are swift and certain consequences that increase in severity if the defendant continues to fail. And, if a person is doing everything correctly, and following the court’s orders – there are incentives or positive responses, including applause, praise, or even small gift cards. The importance of positive responses should not be underestimated, because over the long-term they are more effective in changing a person’s behavior than using negative-only responses.

During this episode David also discusses the difficulties of changing a particular behavior. Most people forget that change is hard. It takes focus and continued effort to change a past habit. Many people make New Year’s resolutions, but very few are successful in the endeavor. Others no longer bother to make a resolution because of past failures. Now, add in an addiction to a chemical substance, especially one as socially acceptable as alcohol, and a behavioral change becomes even more difficult. But with a team of supporters holding a person accountable and always recognizing the positive efforts, change is possible.

DWI Courts are changing individuals—one person at a time—for a lifetime. And that is change worth understanding and supporting.

Have you seen a DWI Court?  What did you think?

Marijuana and the Justice System – Now What?

Do you have medical marijuana where you live? Are you involved with the justice system?  If you answered yes to those two questions, then this episode is for you.

Judges Peggy Hora and Mary Celeste, retired, are both experts on drugged driving.  They are former Judicial Outreach Liaisons for the National Highway Traffic Safety Administration.  In this episode of Justice Speaks, they discuss marijuana and its effects on the justice system.

Currently 23 states, Puerto Rico and Guam have legalized cannabis for medical purposes.  Four states (CO, OR, WA, AK) and the District of Columbia have legalized it for recreational purposes.  As it becomes legal more places, several concerns arise including the possibility of marijuana impaired driving.  Not only do we have cases involving marijuana but also combination cases with alcohol or other drugs.

Marijuana is not Alcohol

Unlike alcohol with its “bright line” of .08 presumed impairment, marijuana per se limits are not clear.  They range from zero tolerance and .01 nanograms/mL to .05 in some states.  In 20 states there are no per se laws at all.  That leaves the basis for arrest and prosecution decisions to officers’ observations, toxicology reports, and other factors such as whether or not there was a crash.

Studies have indicated that the usual investigative tools such as Standard Field Sobriety Tests (SFSTs) do not correlate to marijuana impairment like they do for alcohol.  That leaves room for a motion to suppress evidence because an arrest lacked probable cause or a motion in limine to exclude an officer’s testimony about SFSTs.

Although every state has at least one Drug Recognition Expert (DRE) their investigation may be hours after the actual driving. We know that 80% of the THC burns off in the first two hours after ingestion. Unlike alcohol which burns off at a consistent rate, you cannot say in retrospect what a driver’s numbers were if the drug is marijuana.

Missouri v. McNeely and Search Warrants for THC

And that brings up another issue – the Missouri v. McNeely decision that requires a search warrant for a blood draw in alcohol cases.  In finding that alcohol cases present no “exigent circumstances” that would do away with the warrant requirement, the U.S. Supreme Court directly relied on the ability of retrograde extrapolation to determine a driver’s BAC even if there was a time lapse in the taking of the blood.  There is a good argument to be made that every marijuana case presents “exigent circumstances” and no warrant is therefore required before a blood test can be performed.

Some European countries list a variety of illicit drugs with per se levels of impairment including THC.  However the United States which adopted a prohibition approach for at least 20 years, allowed very little research to be conducted.  Even the current research that is being done is flawed in that they are testing on 8% THC levels whereas the street levels are now around 20%.

The Most Problematic Issue

Research is also being done solely on smoked marijuana whereas the most problematic area for states that have legalized marijuana is from the edibles – eaten forms of THC like brownies, lollipops, tea, etc.  Some of the THC levels have reached 80% in edibles and there have been severe consequences that have arisen including deaths.

There are currently 500 pieces of legislation dealing with marijuana including one in Congress that would remove THC from the Schedule I drug list.  Until and unless this is done, the legal issues will continue to arise over marijuana.

Marijuana and the Justice System – Now What? Justice Speaks Podcast

Do you have medical marijuana where you live? Are you involved with the justice system?  If you answered yes to those two questions, then this episode is for you.

Judges Peggy Hora and Mary Celeste, retired, are both experts on drugged driving.  They are former Judicial Outreach Liaisons for the National Highway Traffic Safety Administration.  In this episode of Justice Speaks, they discuss marijuana and its effects on the justice system.

23 states, Puerto Rico and Guam have legalized cannabis for medical purposes.

Currently 23 states, Puerto Rico and Guam have legalized cannabis for medical purposes.  Four states (CO, OR, WA, AK) and the District of Columbia have legalized it for recreational purposes.  As it becomes legal more places, several concerns arise including the possibility of marijuana impaired driving.  Not only do we have cases involving marijuana but also combination cases with alcohol or other drugs.

Marijuana is not Alcohol

Unlike alcohol with its “bright line” of .08 presumed impairment, marijuana per se limits are not clear.  They range from zero tolerance and .01 nanograms/mL to .05 in some states.  In 20 states there are no per se laws at all.  That leaves the basis for arrest and prosecution decisions to officers’ observations, toxicology reports, and other factors such as whether or not there was a crash.

Studies have indicated that the usual investigative tools such as Standard Field Sobriety Tests (SFSTs) do not correlate to marijuana impairment like they do for alcohol.  That leaves room for a motion to suppress evidence because an arrest lacked probable cause or a motion in limine to exclude an officer’s testimony about SFSTs.

Although every state has at least one Drug Recognition Expert (DRE) their investigation may be hours after the actual driving. We know that 80% of the THC burns off in the first two hours after ingestion. Unlike alcohol which burns off at a consistent rate, you cannot say in retrospect what a driver’s numbers were if the drug is marijuana.

Missouri v. McNeely and Search Warrants for THC

Some European countries list a variety of illicit drugs with per se levels of impairment including THC.  However the United States which adopted a prohibition approach for at least 20 years, allowed very little research to be conducted.  Even the current research that is being done is flawed in that they are testing

The U.S. Supreme Court issued the Missouri v. McNeely decision that requires a search warrant for a blood draw in alcohol cases. What about Marijuana?

on 8% THC levels whereas the street levels are now around 20%.And that brings up another issue – the Missouri v. McNeely decision that requires a search warrant for a blood draw in alcohol cases.  In finding that alcohol cases present no “exigent circumstances” that would do away with the warrant requirement, the U.S. Supreme Court directly relied on the ability of retrograde extrapolation to determine a driver’s BAC even if there was a time lapse in the taking of the blood.  There is a good argument to be made that every marijuana case presents “exigent circumstances” and no warrant is therefore required before a blood test can be performed.

The Most Problematic Issue

Research is also being done solely on smoked marijuana whereas the most problematic area for states that have legalized marijuana is from the edibles – eaten forms of THC like brownies, lollipops, tea, etc.  Some of the THC levels have reached 80% in edibles and there have been severe consequences that have arisen including deaths.

There are currently 500 pieces of legislation dealing with marijuana including one in Congress that would remove THC from the Schedule I drug list.  Until and unless this is done,

Distracted Driving: A Company’s Nightmare

Are you a business owner or supervisor?

Do you have employees who drive for work?

Do you have a policy on texting or using a cell phone while driving?

If you answered the first two questions yes, and no on the third, how much insurance do you have?  Because at some point, it is likely you will need to use it.  Distracted driving is dangerous and when you or your employee causes a crash because of it, your company can be held responsible for the resulting injuries and fatalities.

What is Distracted Driving?

In 2012, distracted driving in the United States alone resulted in at least:

* 3,328 fatalities

* 410,000 injuries

Experts everywhere have declared distracted driving an epidemic. But what actually is distracted driving?  It is performing any activity that is secondary to driving.  Changing the radio station, reaching over for a purse or briefcase, eating while driving, reaching into the back seat because the children are arguing, are all examples of distracted driving.

To really examine distraction, there are three primary types. They are:

* Manual distractions

* Visual distractions

* Cognitive distractions

Any distraction while driving is one or a combination of those three.  Changing the temperature in the car is a manual distraction: your hands are off the steering wheel.  Looking at the radio or GPS display is a visual distraction: your eyes are off the road. Thinking about yesterday’s meeting is a cognitive distraction: your brain is not focused on driving.  Each of these distractions may not be as significant as others.  Changing the temperature may be a brief interruption, while reaching into the backseat to search for an item may not be brief and involves more than one type of distraction.

Hands-Free is Not Risk-Free

Texting while driving is one form of distraction recognized by all as significantly dangerous. The research reveals that someone who texts and drives is 23 times more likely to be in a crash.  Texting uses all three forms of distraction: manual, visual, and cognitive and thus it is a significant risk.

People are also getting the message that holding a cell phone and talking to someone while driving is also dangerous.  It is distracted driving.  However, many people have the mistaken belief that talking to someone on a hands-free phone while driving is safe.  This is wrong and could end in a fatal mistake. Talking to someone while using a hands-free phone or while holding the phone is still talking to someone who is not physically present, it is a cognitive distraction.  Your mind is not focused on the driving.

A common question asked when discussing cell phones and driving is what about passengers in the car? After all, talking on the phone is just like talking to a passenger, right?  That is absolutely wrong!  For an adult, there are significant differences between having a conversation with passenger in the car and talking on a cell phone.  With a passenger, she or he is another set of eyes and able to spot and point out driving hazards.  In fact, a passenger can recognize when traffic is challenging and just stop talking.  None of that is true during a cell phone conversation.

Another false belief is the perception of multi-tasking. What we know from the science is that multi-tasking is a myth. As humans, our brain can only handle one activity at a time; it is not even possible to train your brain to multi-task. When we try to do multiple tasks, our brain is really switching back and forth between the tasks and thus not giving its full attention to any one action. This includes talking on the phone.

Distracted Driving Liability

* $21.6 Million, Technology company, 2007 crash in FL

* $21 Million, Soft drink beverage company, 2010 crash in TX

* $16.

Distracted Driving: A Company’s Nightmare - Justice Speaks Podcast

Do you have a policy on texting or using a cell phone while driving?

If you answered the first two questions yes, and no on the third, how much insurance do you have?  Because at some point, it is likely you will need to use it.  Distracted driving is dangerous and when you or your employee causes a crash because of it, your company can be held responsible for the resulting injuries and fatalities.

What is Distracted Driving?

In 2012, distracted driving in the United States alone resulted in at least:

3,328 fatalities

410,000 injuries

Experts everywhere have declared distracted driving an epidemic. But what actually is distracted driving?  It is performing any activity that is secondary to driving.  Changing the radio station, reaching over for a purse or briefcase, eating while driving, reaching into the back seat because the children are arguing, are all examples of distracted driving.

Talking on the phone is a cognitive distraction.

To really examine distraction, there are three primary types. They are:

Manual distractions

Visual distractions

Cognitive distractions

Any distraction while driving is one or a combination of those three.  Changing the temperature in the car is a manual distraction: your handsare off the steering wheel.  Looking at the radio or GPS display is a visual distraction: your eyes are off the road. Thinking about yesterday’s meeting is a cognitive distraction: your brain is not focused on driving.  Each of these distractions may not be as significant as others.  Changing the temperature may be a brief interruption, while reaching into the backseat to search for an item may not be brief and involves more than one type of distraction.

Hands-Free is Not Risk-Free

Texting while driving is one form of distraction recognized by all as significantly dangerous. The research reveals that someone who texts and drives is 23 times more likely to be in a crash.  Texting uses all three forms of distraction: manual, visual, and cognitive and thus it is a significant risk.

People are also getting the message that holding a cell phone and talking to someone while driving is also dangerous.  It is distracted driving.  However, many people have the mistaken belief that talking to someone on a hands-free phone while driving is safe.  This is wrong and could end in a fatal mistake. Talking to someone while using a hands-free phone or while holding the phone is still talking to someone who is not physically present, it is a cognitive distraction.  Your mind is not focused on the driving.

Ability to multitasking is a myth

A common question asked when discussing cell phones and driving is what about passengers in the car? After all, talking on the phone is just like talking to a passenger, right?  That is absolutely wrong!  For an adult, there are significant differences between having a conversation with passenger in the car and talking on a cell phone.  With a passenger, she or he is another set of eyes and able to spot and point out driving hazards.  In fact, a passenger can recognize when traffic is challenging and just stop talking.  None of that is true during a cell phone conversation.

Another false belief is the perception of multi-tasking. What we know from the science is that multi-tasking is a myth. As humans, our brain can only handle one activity at a time; it is not even possible to train your brain to multi-task. When we try to do multiple tasks, our brain is really switching back and forth between the tasks and thus not giving its full attention to any one action. This includes talking on the phone.

Distracted Driving Liability

Ethics In Problem-Solving Courts - Justice Speaks Podcast

“The basic function of an independent, impartial and honorable judiciary is to maintain the utmost integrity in decision making,” according to Judge David Rothman (Ret.) of the Los Angeles Superior Court.  The Model Code of Judicial Conduct is the codified embodiment of this principle.  The traditional Canons, however, did not anticipate a collaborative court system but, rather, relies on an adversarial system when making the rules.  With one exception, the Canons have not addressed problem-solving courts and their unique needs.

Judges in problem-solving courts face unique legal issues such as:

Remaining objective and impartial with participants with whom the judge develops a much more personal relationship that she does in a regular criminal case

Ex Parte communications among team members

Direct communication between the judge and the participant

Ensuring confidentiality, privacy, and dignity

Crafting appropriate incentives, sanctions and treatment responses

Using evidence-based practices

Demeanor both on and off the bench

The collaborative nature of drug courts (Key Component 6)

The community advocacy role of the drug court judge (Key Component 10)

Ex Parte Communication

Know your state’s rules for Ex Parte communications

Canon 2 of the American Bar Association (ABA) Model Code of Judicial Conduct requires a judge to “perform the duties of judicial office impartially, competently, and diligently.  Canon 2.9 specifically prohibits ex parte communications defined as improper unilateral contacts with a judge without notice to the other side.

Comment [4] of Canon 2.9 goes on to say:

“A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts.  In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.”

Judges in problem-solving courts are advised to see whether or not their state has adopted the “drug court exception” to ex parte communications because fewer than half have done so.  Judges are further advised to urge the adoption of this Canon so they may be protected from ethics violations.

What to do with an unsuccessful participant

On the one hand, judges have the duty to hear all cases (Canon 2.1).  On the other, judges must not only be impartial and free of bias but also appear to be impartial and free from bias (Canon 2.2, 2.3).  Judges in problem-solving courts develop a personal relationship with participants and get to know them quite well.  The judge may have watched the participant struggle for months and celebrated victories with the participant.  If the participant voluntarily drops out of the program, who should sentence the defendant?  If there is a petition to revoke probation, who should resolve the probation violation hearing?  What information has the judge received ex parte and will the judge be relying on this information when making a ruling?  The trend of appellate cases is that recusal is not required except in the State of Tennessee where the appellate court found it was a violation of Due Process for the drug court judge to continue to hear the defendant’s case.  Interestingly enough, there is a Tennessee ethics opinion that says it is not an ethics violation to do so.  Oklahoma says judges should recuse themselves if asked to do so if there is an objection to the drug court judge hearing the case.  The State of Nevada has said the judge need not recuse is she has previously sat as the drug court judge but must disclose that former relationship.

Judges have to be careful or they could be disciplined.

Ethics in Problem-Solving Courts

“The basic function of an independent, impartial and honorable judiciary is to maintain the utmost integrity in decision making,” according to Judge David Rothman (Ret.) of the Los Angeles Superior Court. The Model Code of Judicial Conduct is the codified embodiment of this principle. The traditional Canons, however, did not anticipate a collaborative court system but, rather, relies on an adversarial system when making the rules. With one exception, the Canons have not addressed problem-solving courts and their unique needs.

Judges in problem-solving courts face unique legal issues such as:

* Remaining objective and impartial with participants with whom the judge develops a much more personal relationship that she does in a regular criminal case

* Ex Parte communications among team members

* Direct communication between the judge and the participant

* Ensuring confidentiality, privacy, and dignity

* Crafting appropriate incentives, sanctions and treatment responses

* Using evidence-based practices

* Demeanor both on and off the bench

* The collaborative nature of drug courts (Key Component 6)

* The community advocacy role of the drug court judge (Key Component 10)

Ex Parte Communication

Canon 2 of the American Bar Association (ABA) Model Code of Judicial Conduct requires a judge to “perform the duties of judicial office impartially, competently, and diligently. Canon 2.9 specifically prohibits ex parte communications defined as improper unilateral contacts with a judge without notice to the other side.

Comment [4] of Canon 2.9 goes on to say:

“A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.”

Judges in problem-solving courts are advised to see whether or not their state has adopted the “drug court exception” to ex parte communications because fewer than half have done so. Judges are further advised to urge the adoption of this Canon so they may be protected from ethics violations.

What to do with an unsuccessful participant

On the one hand, judges have the duty to hear all cases (Canon 2.1). On the other, judges must not only be impartial and free of bias but also appear to be impartial and free from bias (Canon 2.2, 2.3). Judges in problem-solving courts develop a personal relationship with participants and get to know them quite well. The judge may have watched the participant struggle for months and celebrated victories with the participant. If the participant voluntarily drops out of the program, who should sentence the defendant? If there is a petition to revoke probation, who should resolve the probation violation hearing? What information has the judge received ex parte and will the judge be relying on this information when making a ruling? The trend of appellate cases is that recusal is not required except in the State of Tennessee where the appellate court found it was a violation of Due Process for the drug court judge to continue to hear the defendant’s case. Interestingly enough, there is a Tennessee ethics opinion that says it is not an ethics violation to do so. Oklahoma says judges should recuse themselves if asked to do so if there is an objection to the drug court judge hearing the case. The State of Nevada has said the judge need not recuse is she has previously sat as the drug court judge but must disclose that former relationship.

Although the California Supreme Court has said it is permissible to sentence a failed drug court participant to the maximum,