The Texas Prosecutor, May-June 2018

An important new study on drugged driving

Just recently, I received a study and report from Washington state (which legalized the recreational use of marijuana in 2012) that Texas prosecutors who try DWI cases need to read. It serves as a warning of what is happening there—and what will happen here as marijuana use continues to rise. For example, in Washington, driver impairment due to alcohol and/or drugs is the No. 1 contributing factor in fatal crashes—alcohol and/or drug impairment is involved in nearly half of all traffic fatalities. Among drivers involved in fatal crashes between 2008 and 2016 who were blood-tested, 61 percent tested positive for alcohol and/or drugs, and 44 percent of those tested positive for two or more substances.
    As of 2012, poly-drug impairment (intoxication by a combination of alcohol and drugs or multiple drugs) is now the most common type of impairment among drivers in fatal crashes—more common than alcohol alone or drugs alone! In fact, since 2012, the number of poly-drug drivers involved in fatal crashes has increased an average of 15 percent every year. The most common substance in poly-drug drivers is alcohol, followed by THC (tetrahydrocannabinol, the chemical compound in cannabis responsible for the high). Alcohol plus THC is the most common poly-drug combination. (Not only are people smoking marijuana and getting behind the wheel, but they’re drinking booze too.)
    This study shows a trend that we in Texas are probably not identifying in our arrests and prosecutions. Look at your intoxication cases: How many involve only alcohol? Are we missing any other intoxicants? Why are we missing them, and how do we fix that? Do police in your jurisdiction treat every fatal crash as a potential crime? If not, how many people who are guilty of manslaughter are simply walking away from these crashes without arrests or criminal charges? How many intoxication manslaughter victims are denied justice because there is not even an investigation for prosecutors to review? Sure, we can blame police for this lack of investigation, but at some point, are prosecutors not complicit?
    When I started in prosecution in 1987, Texas peace officers and prosecutors were pretty bad at detecting and prosecuting alcohol-impaired drivers. We got better, though—a whole lot better. We secured search warrants for blood, and officers learned and administered SFSTs (Standardized Field Sobriety Tests). We got better at selecting juries, using dash-cam videos, and countering defense strategies. But while we caught up with drinkers, we remain way behind in how people become impaired in 2018. This study should open our eyes to these new norms.
    What else can we do? First, read the report, which is below. Start a dialogue with local law enforcement agencies: Do they have DREs (Drug Recognition Experts) on staff? If they don’t, how can prosecutors get the agencies to prioritize the need for them? Are officers getting ARIDE (Advanced Roadside Impaired Driving Enforcement) training? DREs and ARIDE training are essential for officers who are stopping impaired drivers on Texas roads.
    We are not Washington—yet. The number of marijuana-impaired drivers in Texas is probably lower than in Washington, but the trends there will be seen here soon enough. (Ask anybody in the Panhandle: There’s plenty of Colorado pot coming into Texas.) We will get better at detecting drug-impaired drivers. The first step in solving any problem is recognizing that we have one, and this study tells us we have a problem. Now let’s get to work solving it.