The Texas Prosecutor, November-December 2017

Need help with your drugged driving case?

A personal confession: I never tried a marijuana DWI. But after spending hours with prosecutors from Colorado, Oregon, and other “recreational” states, I know that we had better learn how. From talking to prosecutors across Texas, I know they need help right now, so let me tell you about some assistance that is available.

DWI Resources page
The DWI Resources page at www.tdcaa.com/dwi is a constantly evolving center for prosecutors to help other prosecutors. There, I archive articles on DWI, post documents and written resources made for prosecutors by prosecutors, and keep a huge library of both training videos and videos made for prosecutors to use in their own DWI training.
    Please keep an eye on the DWI Resources page for new materials, articles, updated caselaw, and standardized field sobriety test (SFST) reviews. A quick request to go with it: If you invent something great, please share it with me (at Clay.Abbott @tdcaa.com) so I can share it with everyone else. When one of us does well, we all do well—that is one of the coolest things about being a Texas prosecutor.
Proving Drug Intoxication with Experts. Recently, two new training videos have been put up, and you can stream or even download them. The first is titled “Proving Drug Intoxication with Experts.” It is a walk-through of how to use forensic scientists from your local lab or the Department of Public Safety (DPS) lab in Austin and Drug Recognition Experts (DREs) as experts in trying a drugged driving case. In my time using toxicologists to prove drug possession cases, I became very complacent in putting a toxicologist on the stand. That’s because the toxicologist in a drug case is about the easiest witness to have on the stand. But the same is simply not true of the toxicologist in the drugged driving case. Finding and quantifying drugs in a blood sample is just not as easy as proving the contents of an evidence bag containing a controlled substance and giving its weight. You, like I did, may have picked up some bad habits and gotten complacent with toxicologists in these drugged driving cases.
    Secondly, we ask toxicologists a question to which they simply can’t give a valid opinion from the blood sample alone. We want to ask our scientist, “Was the defendant intoxicated?” and when we do, we get hit in the face with an answer we don’t like (“I cannot give an opinion on that”). This video models a better way to examine the honest and qualified expert and even gives step-by-step instructions on how to question such an expert on direct.
    The video goes on to emphasize the need for qualified experts not only on what was in the defendant’s blood, but also how it was affecting him. This expert is almost always a Drug Recognition Expert, or DRE, a specially trained and experienced peace officer. To help prosecutors question a DRE, the video models how to put this expert on the stand and walks through, question by question, how to glean information from him.
    There is no easy or quick solution to tangling with these difficult cases, but there are methods that work. Please take a look before your next trial with a drugged-driving defendant. Heck, please take a look before you dismiss or make an offer on your next drugged driving case.
Testing Blood for Drugs in Texas. The other new video on TDCAA’s DWI Resources page is Part Two of a training video on breath testing. (If you have an upcoming breath-test case, you need to see Part One; it’s here.) This new video is titled “Testing Blood for Drugs in Texas,” and it is a walk-through of the Toxicology Section of the DPS Lab in Austin. (Find it at TDCAA’s website, and search for Testing Blood for Drugs in Texas.) That is where the great majority of lab reports in our drugged driving cases come from. I received unbelievable help in producing the training from the excellent scientists in that section—every single one of them makes an appearance in the video.
    While I echo the advice these forensic scientists give prosecutors (to attend an open house at the lab to see it for themselves), until you can get to Austin for such a field trip, this video is your chance to observe what happens to a blood specimen before you present it at trial. The video will not answer every question you have about labs, toxicology, and drugs we find in impaired drivers, but it is a good start. It will also not be our last effort to provide help in these cases. But the simple truth is I can’t bring every expert to a regional training in your jurisdiction for a live presentation; these videos let me put the information on your computer for you to see and review before that difficult trial.

Regional DWI training
Speaking of live training in your jurisdiction, this year’s regional DWI training will include two separate courses. The first is a continuation of our “Effective Courtroom Testimony” course for pros- ecutors and officers. New prosecutors and old hands alike should give it a shot—besides lots of great tips, it also provides a day with your local officers discussing this important topic.
    The second course is “Rolling Stoned: Investigating and Prosecuting the Drug-Impaired Driver.” This course is new, and it is the follow-up to one of the presentations during the general session at September’s Annual Criminal & Civil Law Update from my good friends from Colorado and Oregon. They discussed the challenges they’ve seen since their states legalized the recreational use of marijuana. Many of you commented that the talk gave insight into the challenges of drugged driving cases, but you also noted that it did not offer enough solutions. This course will, I hope, be the start of doing exactly that, though I will not pretend to have a solution to every challenge. But meeting with local officers investigating these cases and the prosecutors trying them is the right place to start. Please check our training calendar at www.tdcaa .com/training, and come join us in a town near you. Oh, and send your officers.

And finally, big thanks
I would be remiss for not thanking some folks who were instrumental in these video projects. Big thanks to the DPS Toxicology Section for letting me take over the lab for a day and interview them for the camera. More thanks to Dee Hobbs, County Attorney in Williamson County, and his whole talented staff. They all put up with me interrupting their workdays, memorizing lines, repeating those lines over and over for filming, and generally sharing their expertise with the rest of Texas. Thanks also to TDCAA’s Brian Klas and Sarah Wolf for appearing on camera and for hours of behind-the-scenes support. (You get bonus points if you can spot Sarah in the video!) Thanks to Bill Conerly, our producer, who has worked with me on three DWI Summits and dozens of video projects, for bringing his skills to bear on making excellent and watchable videos.
    And finally, thanks to all of you for trying these difficult cases and for blazing the trail for prosecutors across the country. I know many of you hoped that Colorado and the other recreational drug states would work all these drug-related difficulties out for us. And while I appreciate prosecutors in other states sharing their experiences and solutions to date, there is still much work we will have to do ourselves. The best advice I can give is to help me help you, and I look forward to working on solutions together.