Drug Impaired Driving

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Great article from Shea Denning at NC SOG on drug related impaired driving.

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?



I thought the National Highway Traffic Safety Administration (NHTSA) might have an answer. Turns out NHTSA released a report earlier this year estimating the prevalence of alcohol and drug use by drivers and how that prevalence has changed over time. The report was based on data collected from a national roadside survey (NRS) conducted between June 2013 and March 2014. That data was compared to information collected in a 2007 NRS.

Before I reveal the results, I want to say a bit about how the researchers got them.

Survey methodology.

Researchers collected data from more than 11,000 drivers at five locations in 60 sites across the United States (four of them in North Carolina) in one two-hour Friday daytime session and four two-hour nighttime sessions.

Here is how the survey worked: Randomly-selected drivers were guided off the roadway into the research location, which usually was an empty parking lot. Research bays were demarcated by traffic cones, and each driver was directed to drive in to a specific bay. A data collector explained to the driver the purpose of the study, told the driver that that it was voluntary and anonymous, and asked for consent to continue. Drivers were offered financial incentives for completing additional parts of the survey. A driver who declined to participate was asked to provide an anonymous breath sample before the driver left the location. Drivers who were not willing to do that drove on. Nearly 80 percent of drivers participated in the survey.

For participating drivers, the data collector first obtained a passive alcohol sensor (PAS) reading. A PAS can detect alcohol in expired air around a person’s face and provides a rough indication of a person’s breath alcohol concentration.

Data collectors then questioned drivers about their general drinking behavior, driving patterns, and their driving on that particular day or evening. They then asked the drivers to provide a breath sample on a portable breath testing device, which masked the result so neither the drivers nor the data collectors saw it.

The data collector then asked the driver for a saliva sample, which was obtained by placing a collection swab in the driver’s mouth for three to five minutes. While the swab was in the person’s mouth, the person was asked to complete a written survey about his or her use of alcohol and drugs.

The data collector then asked the driver for a blood sample. Forty two percent of the drivers agreed to provide such a sample, which was then withdrawn by a phlebotomist. (Drivers received $50 for providing the blood sample.)

At the end of the study, the driver was guided back onto the roadway. If the data collector suspected that a driver may have been drinking or was otherwise impaired, a supervisor obtained a breath alcohol reading using an unmasked portable breath testing device. If the driver’s breath alcohol concentration was at or above .05, the research team ensured he or she got home safely at no charge. No driver was arrested as a result of his or her participation in the survey.

The analysis.

Saliva and blood samples collected from the drivers were analyzed for drugs that have the potential to impair driving, including over-the-counter, prescription, and illegal drugs. Among the drugs included were marijuana, cocaine, amphetamines, opiates, and phencyclidine. Samples that screened positive were then subjected to confirmatory testing using gas chromatography-mass spectrometry or liquid chromatography-mass spectrometry technology.

The results.

• 22 percent of the nearly 8,000 drivers who provided saliva or blood samples tested positive for some type of drug.
• Drivers between the ages of 16 and 20 were least likely to test positive for drugs. Drivers between the ages of 21 and 34 were most likely to test positive.
• The most frequently encountered drug was THC, the psychoactive substance in marijuana. THC was detected in 8.7 percent of daytime drivers and 12.7 percent of nighttime drivers.
• Opioids and their metabolites were the second most prevalent drug, detected in 5.5 percent of daytime drivers and 4.7 percent of nighttime drivers.
• During the daytime, the next most frequently encountered drug class was antidepressants (3.5 percent) followed by benzodiazepines (2.6 percent)
• The third most prevalent types of drugs among nighttime drivers were cocaine and amphetamines/stimulants (2.2 percent).

The comparison.

The results of the 2013-14 NRS were compared to the 2007 NRS.

• Nighttime drug-positive driving increased from 16.3 percent in 2007 to 20.1 percent in 2013-14.
• The prevalence of THC-positive drivers increased from 8.7 percent to 12.7 percent (an increase of 46 percent).

The limitations.

The authors of the NHTSA report note that the presence of drugs does not equate to drug impairment. They explain that the study’s purpose was to estimate drug prevalence, not to determine whether drugs affect driving performance or have an impact on crash risk. In fact, the authors noted, some prescribed medications may actually improve the driving of certain individuals. Questions about impairment and crash risk must be determined (and, the authors note, are currently being examined) in other studies.

A 2016 NHTSA-sponsored Drug and Alcohol Crash Risk Study examined the risks associated with drug- and alcohol-positive driving. The study used data from crash-involved and non-crash-involved drivers over a 20-month period in Virginia Beach, Virginia. The study confirmed previous research indicating alcohol is a greater contributor to crash risk than drugs. And when age, gender, race/ethnicity, and alcohol consumption were accounted for, the researchers found no significant contribution of drugs to crash risk.

A July 2017 NHTSA report to the U.S. Congress on marijuana-impaired driving noted that while “ethyl alcohol is a relatively simple drug whose absorption, distribution, and elimination from the body along with the behavioral and cognitive effects are fairly well documented,” the “absorption, distribution and elimination from the body of marijuana (and many other drugs), along with the behavioral and cognitive effects is very different.” In addition, the report stated that less is known about the impairing effects of marijuana use than alcohol consumption on driving-related skills. There have been fewer studies of marijuana’s effects on driving, and research methods have not been consistent. The studies that exist consistently determine that the level of THC in the blood and the degree of a person’s impairment do not appear to be closely related.

The bottom line.

The NHTSA report based on the 2013-14 NRS does not definitively establish that drug-impaired driving is more prevalent today than in the past. It does, however, show that a substantial and growing percentage of drivers have detectable quantities of drugs in their systems.

Many policy makers are not waiting for definitive research results on the incidence of drug-impaired driving to combat its dangers. In August 2013, the Office of National Drug Control Policy (ONDCP) partnered with NHTSA to develop the online Advanced Roadside Impaired Driving Enforcement (ARIDE) program, a program designed to improve a law enforcement officer’s ability to identify drugged drivers on the road. And several states have adopted statutes that prohibit driving with any drug or metabolite or a specified concentration of drug or metabolite in his or her body.

Drugged driving laws in NC.

North Carolina’s general impaired driving statute, G.S. 20-138.1 prohibits a person from driving a vehicle on a street, highway or public vehicular area (a) while under the influence of an impairing substance; or (2) after having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more; or (3) with any amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine. In addition, G.S. 20-138.3 prohibits a person under 21 from driving a motor vehicle on a highway or public vehicular area while he has remaining in his body any alcohol or controlled substance previously consumed.

A bill introduced last April (H 766) would have amended the state’s DWI laws to prohibit a person from driving with the following additional controlled substances or their metabolites in his or her blood or urine: cocaine, phencyclidine, methamphetamine, or ketamine. The bill also would have prohibited driving with certain THC levels. The bill was referred to the Committee on Judiciary I, and did not reemerge for further consideration.

When Does Revocation for DWI start?

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There was much in the news a few years back about altering the conviction date of a DWI so that the defendants suspension would not affect them.  In fact, an attorney went to jail and a judge left the bench over such a scandal.  The question that remained was whether or not the defendants received any benefit from the movement of their cases and the delay of the entry of their judgments.  Below is a great article on the issue.

The Beginning Date for License Revocations Following Conviction for DWI

June 7th, 2012

By Shea Denning

Several recent stories in the News and Observer (here, here, here, and here) have chronicled the SBI’s investigation into orders entered in certain impaired driving cases by former Wake County District Court Judge Kristin Ruth, who resigned last month. Newspaper reports characterize the orders at issue as purporting to alter the conviction date for impaired driving convictions that originally were entered in district court, were appealed to superior court, and subsequently were remanded to district court for resentencing after the appeals were withdrawn.  (For more about the appeal, remand and resentencing process in DWI cases, see this post.) Ruth, who was not the judge who re-sentenced the named defendants in district court after their cases were remanded, reportedly entered orders after the new sentencing hearing was held and the new judgment imposed stating that the defendants’ convictions occurred at some earlier date. Ruth has stated that James Crouch, a defense attorney, submitted the orders to her and that she signed them without reading them.
Newspaper reports suggest that the benefit that might inure to a defendant from changing the date of his or her conviction or judgment for an impaired driving offense is a shortening of his or her post-conviction license revocation period. DMV, however, reportedly has said that none of the defendants named in the orders had their licenses reinstated early. That these post-conviction orders did not so benefit the defendants involved is not particularly surprising in light of the procedures that govern license suspension after a conviction for DWI.  I thought it might be worthwhile to spend a few minutes exploring how that process works.
Clerks of court are required to send to DMV a record of “[a] conviction of a violation of law regulating the operation of a vehicle,” which, of course, includes records of convictions for DWI. G.S. 20-24(b)(1). When DMV receives notice that a person has been convicted of DWI, it must revoke “forthwith” the person’s license. G.S. 20-17(a)(2). The revocation period for a first-time DWI offender is one year. G.S. 20-19(c1). DMV may only revoke a person’s license, however, upon final conviction of a qualifying offense. See G.S. 20-4.01(4a) (defining conviction as “a final conviction”). For a conviction to be final, not only must the person be adjudged guilty but a judgment also must be entered from which the defendant may exercise his or her right to appeal. Moreover, DWI convictions in district court from which a defendant has given notice of appeal to superior court, are not final for purposes of imposing a license revocation, just as they are not final for purposes of sentencing. Thus, while a defendant’s conviction in district court for DWI is the triggering event for a license revocation based upon that conviction, it is not always the date on which the post-conviction revocation period begins.
A defendant may render the post-conviction revocation period immediately applicable by surrendering at sentencing his or her driver’s license to the clerk of court. See G.S. 20-24(a). When this occurs, the clerk provides the defendant with form DL-53, which serves as the defendant’s receipt for the surrender of his or her license and calls for the defendant’s signature acknowledging that his or her license is suspended as of that date. The clerk then either destroys the license or forwards it to DMV. The DL-53 is transmitted to DMV and the date of receipt noted on that form is recorded as the beginning date for the post-conviction revocation in the person’s driving record.
When, however, a defendant does not surrender his or her license at sentencing, the post-conviction revocation is not immediately effective. Instead, DMV imposes the revocation after it is notified by the clerk of the conviction. After receiving notice, DMV sends the driver a letter notifying him or her that the revocation becomes effective on 12:01 a.m. on the eleventh day after the notification. This ten-day notice period is not explicitly required by statute, but corresponds to the ten-day period for filing a notice of appeal to superior court for trial de novo, thus ensuring that DMV does not impose a collateral licensure consequence for a district court conviction that is not yet final.
Thus, it is the clerk’s provision of notice to DMV or the defendant’s surrender of his or her license to the clerk at sentencing—rather than the date of conviction or sentencing—that marks the inception of the revocation period resulting from a conviction for DWI.
There is an exception to the mandatory revocation rule for circumstances in which DMV does not receive a record of a defendant’s conviction until more than a year after it is entered. G.S. 20-24(b1). In such a case, DMV may, but is not required to, substitute a period of probation for all or part of the revocation required. I’m doubtful that DMV would view this provision as applicable to a circumstance, such as the one described above, in which it received notice of a conviction, imposed a revocation, and later received amended notice stating that the conviction occurred at some earlier date.
Like the reporters who have covered this story, my guess is that the benefit sought in the cases under investigation related to license revocation.  Given the way that post-conviction revocations are imposed, however, I can’t quite figure out how the orders were designed to afford that relief.

Wake County Limited Driving Privilege for out of state DWI

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If you are licensed in North Carolina and convicted of a DWI in another state, you may be able to obtain a limited driving privilege in North Carolina even though your license was revoked for the out of state DWI.  The below article was written by Shea Denning of the North Carolina School of Government.

I’ve written several posts (the latest one here) about the availability of a limited driving privilege for a person whose driver’s license is revoked upon conviction of impaired driving in violation of G.S. 20-138.1. A limited driving privilege is a judgment issued in the discretion of the court authorizing a person with a revoked driver’s license to drive, for limited purposes and at limited times, during the period of the revocation. As none of the earlier posts discussed the circumstances in which a person who is convicted of impaired driving in another state or in federal court may obtain a limited driving privilege from a North Carolina court, this one will.
G.S. 20-179.3(b) provides that a person whose North Carolina driver’s license is revoked because of a conviction in another jurisdiction that is substantially similar to impaired driving under G.S. 20-138.1 is eligible for a limited driving privilege if he or she would have been eligible for it had the conviction occurred in North Carolina. You can read more here about the eligibility requirements for North Carolina DWI convictions. In general, they require that the person (1) have been punished at Level Three, Four, or Five, (2) have been validly licensed at the time of the offense, (3) not have a qualifying prior impaired driving conviction, (4) not have a subsequent conviction or unresolved charge for impaired driving, and (5) have a substance abuse assessment and furnish proof of financial responsibility. Even if a person’s out of state conviction satisfies the “substantially similar” criteria and the person meets the enumerated eligibility requirements, the person still must demonstrate that his or her North Carolina driver’s license was revoked, a requirement that significantly reduces the universe of eligible persons.
A few examples might help demonstrate the impact of this limitation.
Howard Henderson:  An NC resident with an out-of-state DWI conviction
Suppose that Howard Henderson, a North Carolina resident with a North Carolina driver’s license, drives while impaired while vacationing in Pennsylvania. Henderson subsequently is convicted in Pennsylvania of driving while impaired. Pennsylvania, one of the 46 states that is a member of the Drivers License Compact, reports the conviction to the North Carolina Division of Motor Vehicles (NC DMV). See 75 Pa. Cons. Stat. Ann. § 1581 (West) (requiring the “licensing authority of a party state [to] report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee”); cf. G.S. 20-4.24(a) (requiring that member states report a conviction for “[d]riving a motor vehicle while impaired”).
After receiving the report, NC DMV revokes Henderson’s driver’s license pursuant to G.S. 20-4.24(b), which requires that North Carolina give the same effect to a report of a conviction in a member state of driving a motor vehicle while impaired that it would give to a North Carolina conviction of impaired driving, and G.S. 20-17(a)(2), which requires NC DMV to revoke the license of any driver upon receiving a record for his conviction of impaired driving under G.S. 20-138.1. Cf. Hoenisch v. Com., Dept. of Transp., Bureau of Driver Licensing, 785 A.2d 969, 973 (Pa. 2001) (concluding that a conviction under G.S. 20-138.1 provides a sufficient basis for a reciprocal driver’s license suspension in Pennsylvania).
Given that Henderson’s North Carolina driver’s license was revoked, he is eligible for a limited driving privilege under G.S. 20-179.3 if meets the other eligibility requirements noted above. Henderson must file his application for a privilege with the clerk in duplicate, and a hearing on his application may be held a reasonable time after the clerk files a copy of the application with the district attorney’s office. G.S. 20-179.3(d).
The North Carolina Administrative Office of the Courts (AOC) has created a form petition for seeking such a limited privilege, AOC-CV-350, as well as a form privilege, AOC-CV-352. Because there is no existing North Carolina criminal case for such petitions to accompany, the AOC has directed clerks to establish these sorts of limited driving petitions as civil cases and to collect the appropriate civil filing fees. (I am hoping that our fearless blog leader, Professor Welty, has stopped reading by now. Otherwise he may kick this entire piece off the criminal law blog.)
Since Henderson was convicted of impaired driving in a jurisdiction other than North Carolina, the hearing must be scheduled before the chief district court judge of the district court district in which Henderson resides. G.S. 20-179.3(d). If the Pennsylvania court imposed a term of nonoperation of a motor vehicle, then Henderson may apply for the limited driving privilege only after having completed at least sixty days of that term. G.S. 20-179.3(c).
Howard Henderson 2.0:  An NC resident with an out-of-state DWI conviction in his former home state
Suppose, however, that Henderson was a Pennsylvania resident licensed in Pennsylvania at the time he drove while impaired. Assume further that Henderson’s alcohol concentration at the time he drove while impaired was 0.10, which resulted in a one-year revocation of his Pennsylvania driver’s license. See 75 Pa. Cons. Stat. Ann. § 3804(e) (West). Pennsylvania will not report Henderson’s conviction to any other state, since Henderson is a Pennsylvania resident with a Pennsylvania driver’s license. Suppose Henderson moves to North Carolina two months after his Pennsylvania conviction for impaired driving. Henderson is ineligible to obtain a North Carolina driver’s license because of the Pennsylvania revocation. See G.S. 20-4.25 (prohibiting member state from issuing a license if the applicant has held a license in another member state that has been revoked and the revocation period has not ended). And Henderson will not be eligible for a limited driving privilege under G.S. 20-179.3 because, even though he has no North Carolina driver’s license and no reciprocal privilege to drive in North Carolina, his North Carolina driving privileges have not been revoked. Cf. 20-22 (permitting NC DMV to revoke the driving privileges of nonresidents “in like manner and for like cause as a driver’s license” issued by NC DMV); G.S. 20-23.1 (permitting NC DMV to revoke the operating privileges of a person who does not have a driver’s license “in like manner as it could suspend or revoke his license if such person held a driver’s license”).
Charlene Connor:  An NC resident with a federal DWI conviction
Consider next the circumstances of Charlene Connor, a North Carolina resident with a North Carolina driver’s license who is convicted in federal court of driving while impaired on the military base at Fort Bragg. See 18 U.S.C. § 13 (assimilating state law crimes for areas within federal jurisdiction). Upon receiving notice of Connor’s conviction, NC DMV is authorized to revoke Connor’s license. See G.S. 20-23.2. As a person whose North Carolina driver’s license is revoked because of a conviction in another jurisdiction, Connor is eligible, upon satisfying other requirements, to obtain a limited driving privilege under G.S. 20-179.3. Her application, like Henderson’s in the first example above, must be filed with the chief district court judge in the district in which she resides.
Charlene Connor:  An out-of-state resident with a federal DWI conviction
Next suppose that Ms. Connor is an active-duty soldier stationed at Fort Bragg, who is licensed to drive by her home state of Texas. In this example, Connor is ineligible to obtain a limited driving privilege under G.S. 20-179.3 following her conviction of impaired driving in federal court because her North Carolina driving privileges have not been revoked. Perhaps Connor could spur NC DMV to act to revoke her driving privileges as a nonresident under G.S. 20-22 and thereby render herself eligible for a privilege under G.S. 20-179.3, but this seems an impractical solution.
Practitioners:  Have your say
Practitioners, is the eligibility gap that I have identified above significant in practice? Have you attempted to gain driving privileges for Henderson and Connor 2.0 in the examples above?  If so, please use the comment feature to share your on-the-ground perspective.