By W. Clay Abbott
TDCAA DWI Resource Prosecutor
Editor’s note: This article is excerpted from the latest edition of TDCAA’s DWI Investigation & Prosecution book written by W. Clay Abbott and Diane Burch Beckham. It is available for purchase at www.tdcaa.com/product/dwi-investigation-and-prosecution-2024.
Controlled substance vs. prescription
DWI cases involving illegal drugs give a prosecutor the advantage of a defendant who got impaired illegally and then drove a vehicle. The majority of hard drugs are viewed unfavorably by most jurors right from the start. Prosecutors need to be aware that overdependence on the illegal nature of a substance can backfire. DWI laws are still based on a reckless decision to imperil other drivers, not a desire to curtail use of certain substances. Curtailed use is instead the focus of possession and delivery of controlled substance laws. Prosecutors have plenty to prove in these cases without talking about dry policy.
If a prosecutor tries a controlled substance DWI just like a possession case, he is leaving a powerful jury motivator—public safety—out of the picture. With the focus on possession of the drug itself, the prosecutor also may fail to prove intoxication. Jurors may have heard of these drugs, they may have a negative reaction to them, but they still have little experience with what exactly they do. Instead, the prosecutor should keep the focus on the defendant’s decision to endanger everyone else on the road.
Marijuana
Marijuana may not follow the trend of other controlled substances. With the legalization of marijuana by an increasing number of states, this substance brings a degree of difficulty to the prosecution of marijuana-impaired drivers.[1] Prosecutors must perform two difficult (and seemingly at odds) tasks during jury selection:
1) discovering jurors’ opinions about marijuana, and
2) separating an impaired-driving case from marijuana possession prosecutions.
A panelist’s strong belief advocating for legalized marijuana use can prejudice the State’s case, but not always. Prosecutors should compare the use of alcohol (which is obviously legal) with marijuana use. A person can drink all he wants in his home, and he has not broken the law. But when legal alcohol use is combined with driving, the law steps in. Jurors can be asked if they will treat marijuana the same as alcohol. A juror who believes in legalization—but agrees marijuana should be treated equally to alcohol in making driving decisions—might be an acceptable juror. The biggest error would be in failing to address this issue with the panel.
Marijuana’s effects are also misunderstood by jurors, and movies and television shows exacerbate this. Similarly, many older users are simply unaware what marijuana is like after its legalization in Colorado and other states.[2] Expert witnesses—the DRE or toxicologist—should be prepared to educate the jury.
Marijuana and cannabis and hemp are all the same plant: cannabis, Cannabis sativa L., and marijuana are identical terms used by the two sides of the legalization debate. Hemp is cannabis sativa L. with less than .03% delta-9 tetrahydrocannabinol.[3] While this complicates possession of marijuana cases, it does not legally complicate marijuana-impaired driving cases. Delta-9 THC is the impairing substance in marijuana, and that is all a lab tests for and reports. Because DWI can be committed based on “a drug” or “any other substance,” no legal issue is raised by the legalization of hemp in 2019. But prosecutors will be in a hole they cannot dig themselves out of if they do not explore opinions, knowledge, and misconceptions about marijuana during jury selection. Expert witnesses, both toxicologist and DREs, should be ready to explain marijuana, cannabis, hemp, and Delta-9 THC to the jury.
The difficulty of prosecuting the prescription-drug-impaired driving case is even greater. Here, the defendant is taking a substance for legitimate medical (and not recreational) reasons, yet he faces prosecution. In these cases, a prosecutor first must ascertain whether the suspect has a prescription and if so, obtain evidence to prove it. This task is rarely done by the investigating officer.
If the drug causing impairment was prescribed, the prosecutor must address this issue head-on in jury selection and at trial. During jury selection, a prosecutor can ask if anyone has had a medical procedure in which a driver was required by medical staff to take the patient home afterward. Ask the panel why the doctor would require this. Ask if they agree with this temporary limitation on the patient’s life and mobility. Nothing makes this point better than the jury panelists’ own experience. Make sure the jury can convict even if the substance causing the impairment was legitimately prescribed. If any panelists say they can’t, trust them, and move to strike for cause.
During presentation of evidence, the prosecutor must address the issue in several ways. In questioning the toxicologist, ascertain whether the drug was in, or over, therapeutic range, pointing out doses above those prescribed and possible abuse of the medication. Prosecutors will need to discuss this issue long before trial with the toxicologist.
Prosecutors must also sponsor witnesses who can educate the jury about required warnings from doctors or pharmacists, and warnings sent home in writing on the pill bottles or in literature that accompanies the prescription. The Physician’s Desk Reference (PDR) and other resources mentioned earlier this chapter also include discussion of this information. Potential witnesses on this issue include DREs, toxicologists, or a pharmacist. Remember that showing and telling always beats just telling.
In closing argument, prosecutors must acknowledge the need for medicine but convince the jury that this need must be balanced with every driver’s responsibility not to place others on the road in danger.
CSI depressants
This category includes many prescription drugs and many controlled substances. Prosecutors should make sure they are on the same page with the toxicologist in cases that involve CSI depressants. Sometimes a drug can be found in both a commercial and illicit form.
Alcohol is a CSI depressant, so the look of this category will be pretty familiar to officers, prosecutors, and juries. CSI depressants are more dangerous in combination. Often a user will have taken smaller doses of more drugs, but this does not make them safer. Be sure to explored dosage issues with the toxicologist.
CSI stimulants
Most of the time, the CSI stimulant in an intoxicated driving case will be methamphetamine. Meth is scary. There are no TV shows about funny and lovable meth addicts. So this is pretty simple. Methamphetamine is so bad it has no medical uses. Be aware that a metabolite of methamphetamine is amphetamine. Finding both in the tests probably does not mean the suspect was taking both. Prosecutors, be sure to cover this with the toxicologist witness.
Unlike alcohol, most controlled substances do not metabolize back to normal or homeostasis. Stimulant abusers are as much or more dangerous when the meth runs out. This is called the crash phase, and the suspect may well look like he is on depressants. There may be stimulants in the blood, but there will also be metabolites. These are hard cases and will take extra time working closely with the toxicologist.
There are prescription stimulants, which in most cases and used in therapeutic range, may have minimal or no impairment. But abusers will not have a blood test that reflects the therapeutic range. Again, cover this with the toxicologist.
Hallucinogens
Bad news and good news in these cases. The bad news: Most of these drugs will not show up on a lab report due to difficulty in testing. The good news is that juries get that driving in another reality is a bad idea. This substances in this category are almost entirely illicit.
Dissociative anesthetics
This category previously included only PCP. But there are now drugs, including Ketamine, that are entering the therapeutic realm. Like stimulants, juries (if they have heard of them at all) have heard scary things. This is not a casual-user category. Impairment is primarily mental but is most often fairly profound.
Narcotic analgesics
This category includes pain medications. including both commercial and illicit substances. It can run from the very scary (like heroin and Fentanyl) to the much more common (like Oxycontin and Demerol). These drugs keep the brain from being plagued by constant pain, but they also slow down other sensory input.
Officers and prosecutors (in person and on video) should take a close look at verbal discussions. Is there lag? Then that is what to look for and point out. Did it take awhile to get through SFST instructions? This may be much more relevant than standardized clues. This category is very susceptible to tolerance. A long-time user or abuser may look very different that the novice user. Yet regardless of tolerance and masking, this category of substances makes dangerous drivers.
Inhalants
With a half-life in seconds—not hours—positive lab tests are very unlikely. Suspects recover quickly from inhalants. But the impairment is profound. If the suspect has a face full of spray paint, the case may be easy to prove. But if the floorboard is full of empty dust-off cans, prosecutors may have to consult with a DRE. Prosecutors should also call a toxicologist to the stand to explain half-lives and why a clean lab report is not a surprise.
Endnotes
[1] Note that an officer’s training, experience, and senses of sight and smell are sufficient to establish probable cause for marijuana possession even though hemp has become legal in Texas and can be confused for marijuana. Isaac v. State, 675 S.W.3d 116 (Tex. App.—San Antonio 2023, no pet. h.); State v. Gonzales, 676 S.W.3d 261 (Tex. App.—Dallas 2023, no pet. h.) (passage of the Texas Hemp Farming Act in 2019 did not preclude officers from relying on the odor of marijuana in justifying a warrantless search based on probable cause under the automobile exception because hemp and marijuana come from the same plant (Cannabis sativa L.) and can give off the same smell and appearance).
[2] www.ncbi.nlm.nih.gov/pmc/articles/PMC4987131.
[3] Tex. Agric. Code §121.001.