2013 ST. PATRICK’S DAY -- ONE TEAM BORDERLESS ENFORCEMENT Sgt. Ted Piche’ - Lewiston Police Department & Idaho Law Enforcement Liaison

Good luck has little to do with ensur-ing safe travel to and from St. Patrick’s Day festivities. For many years this holi-day has created significant problems for law enforcement in terms of dealing with impaired drivers as well as other typical problems found at drinking establishments. It is not just a Lewiston problem, nor an Idaho problem. It is a national problem! St. Patrick’s Day has become a big drinking event with the National Highway Traffic Safety Administration reporting 700 traffic fatalities during the St. Patrick’s Day holi-day from 2006 to 2010.

In recent years, with the assistance of over-time funding from the Idaho Transporta-tion Department’s Office of Highway Safety, the Lewiston Police Department targeted our enforcement efforts towards the impaired driver on St. Patrick’s Day. We have a goal of reducing the number of

serious injuries and deaths on our road-ways. Together we are working Towards Zero Deaths.

Three years ago we took a new approach of One Team Borderless Enforcement. The Lewiston Police Department partnered with the Nez Perce County Sheriff’s Office and the Idaho State Police to work together on high-visibility enforcement. We worked with the media in advance of the well-publicized Pub Crawl in Lewiston. We let the public know we would be conducting a high-visibility impaired driving enforce-ment campaign. A pre-event briefing was held at 7:00 PM to map out specific loca-tions of enforcement and operational needs for that holiday night. The One Team ap-proach netted 12 DUI arrests on St. Pat-rick’s Day in 2010.

(Continued on Page 5)

TABLE OF CONTENTS

DRE Not New or Novel 2-3

Traffic Law Update 4

One Team Continued 5

Websites 5

Trainings & Conferences 5

Last Call: Put it Down! 6

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FOR THE ROADApril 2013 -- Volume 7 Issue 2

Idaho Prosecuting Attorneys Association

DRE IS NOT NEW OR NOVELBy Jared Olson, Traffic Safety Resource Prosecutor Despite over 34 years of existence (17 in Idaho) the Drug Evaluation and Classifica-tion Program (DEC)1 has recently found itself being attacked as new or novel scien-tific evidence in some of our courtrooms. For example, as recent as last month, an Idaho magistrate would not bind over a felony DUI because the DEC program and Drug Recognition Expert’s (DRE) conclu-sions were not “scientifically proven.”

This author assumed the magistrate’s rul-ing was likely a result of an unpublished opinion by a Maryland circuit court in the Spring of 2012. That case gained some traction despite the overwhelming pub-lished case law reaching opposite conclu-sions. Hopefully, the most recent Maryland case (examined below) will put a stop to this aberrant Maryland ruling and put the DEC Program and DRE opinions in the proper context.

Maryland’s Brightful Case Revisited

In the October 2012 edition of For The Road the Maryland v. Brightful2 case was examined wherein a circuit court judge ruled the Drug Evaluation and Classifica-tion Program was a novel scientific tech-nique not generally accepted as reliable by “the relevant scientific community,” and that Drug Recognition Experts (DRE) are not qualified to render an opinion regard-ing possible drug-impairment of a suspect.3 This unappealable and unreported trial court ruling began to be hailed by DUI defense attorneys as a landmark decision exposing the DEC program as junk science unworthy of belief.

Maryland’s New Crampton Case

In Maryland, there is a new case in town – Maryland v. Crampton.4 On March 19, 2013, Judge David A. Boynton of the Montgomery County, Maryland Circuit Court heard a Frye-Reed motion to exclude DEC Program evidence. The result was completely opposite of the previous Brightful ruling. Judge Boynton denied the defendant’s motion Crampton, holding the DEC protocol and the DRE’s opinion based on that protocol are not new and novel scientific evidence and therefore the

Frye-Reed test is not applicable.5 It should be noted that both Brightful and Crampton are un-published Circuit Court cases in Maryland. However, one differ-ence is in Brightful the State did not have the right to appeal, wherein in Crampton, the defense does have the right to appeal. It remains to be seen whether the defense will choose to do so.

Regardless, the Crampton deci-sion now arms traffic prosecutors and DREs with a persuasive contrast-ing opinion. The value is in dissecting the two opinions and focusing on why the DEC program methodology is reliable and exactly what expert opinion a DRE can and cannot give.

Battle of the Expert Witnesses

The State called four expert witnesses to testify that the DRE program, DEC proto-col and opinions expressed by DREs are not based upon new or novel science. The defense called three experts to testify to the contrary. Upon hearing the testimony and considering the evidence, the Crampton court found, “the DEC protocol and DRE’s conclusions regarding impairment are not new or novel scientific evidence because they are not based upon new or novel sci-entific principles or techniques.”6

Holding of the Crampton Court

The court explained, “In performing the DEC protocol, the DRE makes a series of observations of a subject’s physical signs, symptoms, and behavior. While the major-ity of factors in the 12-step evaluation are clearly not scientific (e.g., interview of arresting officer, interrogation of the sus-pect), other steps are founded on scientific principles (e.g., vital signs, HGN, VGN).”7

Do DRE’s Make A Diagnosis?

The defense attempted to equate a DRE’s opinion regarding impairment with a “dif-ferential diagnosis” performed by doctors on a daily basis. The court found this was a “flawed comparison.”8 A differential

diagnosis is performed for the purpose of treatment. DREs do not engage in treatment of any kind. These highly trained officers are simply making obser-vations using the DEC protocol to form an opinion regarding a driver’s impairment and its likely cause.9

The court said, “In ruling out or finding the presence of a medical condition as the cause of impairment, the DRE is not per-forming a differential diagnosis for the purpose of medical treatment, but rather conducting a police investigation for the purpose of finding and eliminating alterna-tive innocent explanations for the observed criminal conduct.”10

This underscores what Maryland State DRE Coordinator, Lt. Thomas H. Wood-ward testified was the 3 things a DRE must determine: (1) whether there is impair-ment; (2) rule out medical impairment; and (3) determine the category of drugs caus-ing impairment. These conclusions are based on the “totality of the circumstances.”11

Battle of the Three Studies

The defense experts in this case relied on 3 studies12 to criticize the DEC protocol. The court determined the purpose of these stud-ies were not meant to gauge the reliability of a DRE’s accuracy in predicting impair-ment by a drug class. Therefore, the de-fense experts “should not have relied on these studies in being critical of the reli-ability of the DEC protocol.”13

(Continued on Page 3)

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DRE is Not New or Novel

The court explained that the Heishman studies were never meant to critically evaluate the reliability of DRE predictions. They were only meant to determine which indicators referenced in the DEC protocol had the highest predictive validity for drug presence. Similarly, the Shinar study was meant only as an evaluation of the ob-served signs and symptoms and predictors of drug impairment. The court concluded, “[R]eliance on these studies for any other purpose than those espoused by the authors is misplaced.”14

The court was very critical of defense wit-ness Dr. Jeffrey S. Janofsky’s testimony involving the three studies. The court said, “Because he used the Heishman and Shinar data for the very purpose it was never in-tended, his report and conclusions are vir-tually meaningless and not persuasive.”15 In addition, the court said Dr. Janofsky took the data from these studies “entirely out of context.”16

In contrast, the court found the testimony of Dr. Jack E. Richman and Dr. Donald W. Alves “particularly persuasive” because of their firsthand experience with the DEC protocol and DRE evaluations in the field.17 The court provided a summary of each witness’ qualifications and testimony. It is highly recommended for readers to review these summaries to understand why the DEC protocol is not new or novel sci-ence and why DRE opinions are credible, valid and compelling in determining im-pairment and its likely cause in criminal investigations.

Conclusion

There are currently 108 DRE officers in the State of Idaho. They should be allowed to provide their expert observations and opinions. I conclude this article directly quoting the court’s conclusion:

“The DRE collects data from physical ob-servations that are in the realm of the DRE’s specialized knowledge and training. Some of these observations require mini-mal training in a particular skill (e.g., the eye examinations), but they are not beyond the scope of the DRE’s experience. The DEC protocol and training allow the DRE

to become a specialized observer. Based on observed physical indicators and behav-ioral impairment, a DRE reaches an in-formed opinion based on the likelihoods and probabilities that the presence of these indicators is consistent with some drug category. The DRE’s training, education, and experience are fundamental to this task. For these reasons, the DRE’s opinion is not new and novel scientific evidence.”18

1 DEC is a program overseen by NHTSA and the International Association of Chiefs of Police (IACP). The program provides Drug Recogni-tion Expert (DRE) officers with their advanced training. 2 Maryland v. Brighful, et. al, No. K-10-04-259, Cir. Ct. Carroll County, MD (March 5, 2012).3 Id. at 34-37.4 Maryland v. Crampton, No. 121222-C, Cir. Ct. Montgomery County, MD (March 19, 2013).5 Maryland v. Crampton at 14. 6 Id. at 11.7 Id.8 Id. at 12.9 Id.10 Id.11 Id. at 4.13 Stephen J. Heishman, Edward G. Singleton & Dennis J. Crouch, Laboratory Validation Study of Drug Evaluation and Classification Pro-gram: Ethanol, Cocaine, and Marijuana, 20 J. Analytical Toxicology 468 (1996); Stephen J. Heishman, Edward G. Singleton & Dennis J. Crouch, Laboratory Validation Study of Drug Evaluation and Classification Program: Allpra-zolam, d-Amphetamine, Codeine, and Mari-juana, 22 J. Analytical Toxicology 503 (1998); and David Shinar & Edna Schectman, Drug identification performance on the basis of ob-servable signs and symptoms, 37 Accident Analysis and Prevention 843 (2005).13 Id. at 13.14 Id.15 Id.16 Id.17 Id. at 12.18 Id. at 14.

For a copy of the Maryland v. Crampton case decision contact Jared Olson by email at jared.olson@post.idaho.gov.

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DRE Not New or Novel -- From Pg 2

State v. Straub, (2013):Straub pled guilty to vehicular manslaugh-ter for the death of bicyclist David Web-ster. A post-crash blood draw showed Straub to have a 0.08 BAC. As part of the plea, Straub agreed to pay restitution for victims under I.C. §§ 18-4007 & 19-5304. The district court determined Straub owed $554,506.67 in restitution, primarily for lost wages. Straub appealed.

First, the Idaho Supreme Court rejected the State’s argument Straub had waived chal-lenges to the restitution order because the waiver was all inclusive and only allowed an appeal of the sentence under specified circumstances. The Court held the waiver only waived the rulings made prior to the entry of the plea agreement. Second, the Court rejected Straub’s argument he was entitled to have a jury decide restitution. The Court said it was evident by the Idaho Code and the Idaho Constitution that the legislature has not extended the right to jury trial in matters of criminal restitution. Finally, the Court held the restitution award was inappropriate and remanded the case for further proceedings. Although “actual out-of-pocket medical expenses and lost wages up to the date of sentenc-ing” may be awarded, future lost wages are speculative and may not be awarded.

State v. Morgan, (2013):Morgan contends there was no reasonable and articulable suspicion he was operating his vehicle contrary to traffic laws. In this case, an officer observed Morgan’s vehicle did not have a front license plate and began following him. Prior to the stop, the officer determined Morgan’s SUV was not li-censed in the State of Idaho, therefore was NOT in violation of I.C. § 49-428. Morgan made a series of left-hand turns, which led the officer to believe Morgan was trying to avoid him. Morgan pulled his SUV to the right but remained on the roadway. The officer believed this was blocking the roadway in violation of I.C. § 49-659 and made a traffic stop. Morgan was found to be driving under the influence and was arrested. The district court denied his mo-tion to suppress holding the officer had a reasonable suspicion to believe Morgan had violated I.C. §§ 49-428 and 49-659.

The Idaho Supreme Court disagreed. The Court held the front license plate require-ment does not extend to vehicles registered in other states. Therefore, the district court mistakenly held there was reasonable sus-picion to stop the vehicle on these grounds. Next, the Court rejected the officer had reasonable suspicion to believe Morgan had violated I.C. § 49-659 because the officer had testified there was an irrigation ditch next to the roadway and that it was “not a fair shoulder to pull onto.” Based upon the absence of evidence it was “prac-ticable” to stop off the roadway, reasonable suspicion was lacking.

Note: The State attempted to argue there was a city ordinance that Morgan had vio-lated as justification for the stop. The Su-preme Court denied the State’s motion to augment the record on due process grounds, holding Morgan did not have a fair opportunity to present evidence re-garding the city ordinance. Therefore, the Court would not consider this justification for the stop.

State v. Wright, (Ct.App.2013):Wright was convicted for “leaving the scene of a property damage crash” under I.C. § 49-1301. Two witnesses saw Wright slide off an icy road and hit a traffic sign, breaking the sign post and damaging his vehicle. He drove away from the scene and the witnesses reported this to police. Wright admitted to striking the sign when contacted by police over the telephone, but denied driving when the police later con-tacted him in person. Wright appeals his conviction arguing I.C. § 49-301 applies only to drivers involved in multi-vehicle accidents resulting in damage to a vehicle driven or attended by another person.

The Court of Appeals agreed with Wright holding I.C. § 49-1301(1) can apply only when the accident involves a second at-tended vehicle. The Court reasoned that the language of this subsection would be superfluous if the statute were interpreted as applying to single-vehicle crashes caus-ing damage to the driver’s own vehicle because this vehicle will always be “driven or attended.” In addition, the Court reasoned the requirement to stop and remain at the scene absent anyone

else to exchange information with would be absurd.

Note: The Court of Appeals in footnote 4 leaves an indication that Idaho Code § 49-1304 – “Duty upon striking fixtures upon or adjacent to a highway” may have been applicable in this case.

State v. Dycus, (Ct.App.2013): Dycus appeals her possession of drug paraphernalia conviction arguing her war-rantless arrest involved an unlawful search and seizure. An officer who knew Dycus had a suspended driver’s license from pre-vious contacts, observed Dycus driving. While the officer was confirming the status of Dycus’ license, she pulled into a con-venience store parking lot and went inside. The officer entered the commercial estab-lishment to arrest Dycus. She was in the restroom and would not open the door. The officer asked the store clerk for a key and was given the key to the restroom door. The officer entered the restroom and ar-rested Dycus and searched a jacket on the restroom floor. A marijuana pipe was found in the jacket. Dycus contends the officer violated her constitutional rights in entering the restroom.

The magistrate and district court relied on the inevitable discovery doctrine in hold-ing the search was constitutionally permis-sible. However, the Idaho Court of Appeals held the search was permissible under the search incident to a lawful arrest excep-tion. No warrant was required for the offi-cer to effect the arrest of Dycus on the premises of a commercial establishment open to the public. The officer had prob-able cause to arrest Dycus when she en-tered the store. The Court held the officer’s incidental intrusion of entering the restroom did not transform the arrest into a search. Even if the entry into the restroom could be construed as a search, the Court found it was made with the consent of the store clerk. Dycus’ conviction was upheld..

[4]

Idaho Traffic Law Update

Disclaimer: This newsletter is a publication of the Idaho Prosecuting Attorneys Association, Inc. Readers are encouraged to share varying viewpoints on current topics of interest. The views expressed in this publication are those of the authors and not necessarily of the State of Idaho, IPAA, or the Idaho Department of Trans-portation. Please send comments, suggestions or articles to jared.olson@post.idaho.gov.

This year, I wanted to try a different ap-proach because St. Patrick’s Day truly is a different enforcement challenge com-pared to other holidays. Our goal has never been to see how many DUI arrests can be made – our goal is to make sure everyone makes it home safe. We again teamed up with the Office of Highway Safety and added in additional law en-forcement partners from Idaho and neighboring Washington.

The Pub Crawl also did their part by be-ing well-organized and making a media announcement publicizing free cab rides home for participants. The Pub Crawl registration was from 2 PM to 4 PM, with the actual event starting at 4 PM. In past years, we did not begin our high-visibility enforcement efforts until later in the eve-ning. This year we decided if they were starting at 4 PM, we should begin at the same time.

Our plan was high-visibility enforcement in a 12-block area around Main Street. As participants walked from bar to bar they had a firsthand experience with our high-visibility enforcement. Law enforcement officers from all the participating agen-cies were able to have positive interac-tions with the participants. Most of the party-goer’s were large groups of 50-60 people walking from bar to bar. They were in good spirits (pun intended) and were friendly towards us, even when we were on traffic stops.In our target area over 100 traffic stops were made for traffic violations. Again, an opportunity to make an impression

was made. Many of the drivers told us they were aware of the One Team Borderless Enforcement and therefore they were the sober designated driver. It was fantastic to see so many designated drivers.

As 1:00 AM approached, I became con-cerned because the bar parking lots were full and I was unsure how our night would turn out. Amazingly, we ended up with only 2 DUI arrests, both occurring before 11:00 PM. Only one of the two arrests was made in our targeted enforcement area. Saturating the target area with our high-visibility paid off!

Of great significance to me is that many of the bar parking lots remained mostly full of vehicles even after closing time. This was a welcome sight and was a different experience from years past. I could only conclude our presence made the impres-sion we wanted and we reached our goal for the participants to make it home safe on St. Patrick’s Day.

It had nothing to do with luck – it was One Team Borderless Enforcement that helped us achieve our Idaho goal of Towards Zero Deaths.

Sergeant Ted Piche’ of the Lewiston Po-lice Department has over 25 years of law enforcement experience. Since 2008 he has served as the Idaho Transportation Department’s Chair of the Law Enforce-ment Liaison program. In 2012 he earned the NHTSA “Safety Champion Award” -- one of only three such national awards ever given in the State of Idaho.

[5]

WEB SITES

Idaho TSRPwww.TSRP-Idaho.org

Idaho Prosecuting Attorneys Associationwww.IPAA-prosecutors.org

ITD Office of Highway Safetyhttp://itd.idaho.gov/ohs/

Idaho POST Academywww.post.idaho.gov

National Highway Traffic Safety Administrationwww.nhtsa.gov

National Association of Prosecutor Coordinatorswww.napc.us

NDAA’s National Traffic Law Center (NTLC)www.ndaa.org

Idaho State Police Forensicswww.isp.idaho.gov/forensics/

Alcohol Beverage Controlwww.isp.idaho.gov/abc/

Training & Conferences Notice(Click on Course Names for More Information)

Idaho Law Enforcement Phlebotomy School — April 8-19, Boise, ID2013 Lifesavers Conference — April 14-16, Denver, Colorado

2013 Idaho Highway Safety Summit — May 1-2, Coeur d’ Alene, ID

2013 IPAA Summer Conference — August 7-9, Boise, ID

One Team Borderless Enforcement . . . Continued from Page 1

LAST CALLApril is National Distracted Driving

Awareness Month. We all know that using our cell phones while driving is distracting, but that doesn’t stop most people from continuing to do it. While anything that takes your eyes off the road, hands off the wheel, or mind off the task of driving is a hazard, there is a heightened concern about the risks of texting while driving because it combines all three types of distraction -- visual, manual and cognitive.

Over the last 3 years (2009-2011), there have been 146 fatal crashes and 1,073 serious injury crashes involving dis-tracted drivers in Idaho. This has resulted in 160 deaths and 1,375 people seriously injured.

I found it fascinating to learn that most (64%) of the vehicles involved in these fatal and serious injury distracted driving crashes were going straight. These were

not drivers negotiating curves, making turns or engaged in other difficult driv-ing tasks. They were going straight!!

This should be a strong reminder that there is absolutely no good time to use your cell phone while driving. Unfortunately this problem requires strong legislation and consistent en-forcement. At least, this is what the current research is showing. Click Here to read a an article on whether texting bans reduce traffic crashes.

Research shows that high visi-bility enforcement works, because with many distracted drivers, the fear of a citation and significant fine outweighs the fear of being injured or killed in a crash. The national campaign states, “We bust you because we care.”

In this issue, the One Team Border-less Enforcement program was high-lighted. Sgt. Ted Piche’ provided a great example of how high-visibility enforce-ment changes behaviors and saves lives.

We know a person who is ticketed for traffic infractions is more likely to crash & kill than a driver who complies with the law. This is why it is so important for us to “not give breaks” or take traffic infractions lightly. Don’t be the next statistic. Please be safe and put the phone down as we work together Towards Zero Deaths. --- Jared Olson

FOR THE ROADJared D. OlsonTraffic Safety Resource ProsecutorIdaho POST Academy700 S. Stratford DriveMeridian, Idaho 83642

Phone: 208-884 7325Fax: 208-884-7295Email: jared.olson@post.idaho.gov

Addressee Name4321 First StreetAnytown, State 54321

Put it Down!

This material was developed through a project funded by the Idaho Transportation Department’s Office of Highway Safety.

Jared D. Olson

Traffic Safety Resource Prosecutor

Idaho POST Academy

PO Box 700

Meridian, Idaho 83680

Phone: 208-884-7325

Fax: 208-884-7295

Cell: 208-559-1217

Email: jared.olson@post.idaho.gov

This material was developed through a project

funded by the Idaho Transportation

Department’s Office of Highway Safety. WE ARE O N T H E WE B!! WWW. T SRP- I D AH O . O RG

Disclaimer: This newsletter

is a publication of the Idaho

Prosecuting Attorneys Associa-

tion, Inc. Readers are encour-

aged to share varying viewpoints

on current topics of interest. The

views expressed in this publica-

tion are those of the authors and

not necessarily of the State of

Idaho, IPAA, or the Idaho

Department of Transportation.

Please send comments, sugges-

tions or articles to Jared Olson at

jared.olson@post.idaho.gov.

UPCOMING TRAININGS & CONFERENCES NOTICE

Idaho Alcohol Law Enforcement Training — October 19, 2007, Twin Falls.

Idaho Alcohol Law Enforcement Training — October 23, 2007, Coeur d’ Alene.

IPAA New Prosecutor Course — November 12-16, 2007, Meridian @ POST.

2007 NAPC Winter Conference — December 10-13, 2007, Nashville, TN.

2008 IPAA Winter Conference — February 6-8, 2008, Boise.

Last Call: Halloween is here! Part of the festivities includes educating our children on how to protect them-

selves while trick-or-treating. In Pocatello, I lived near a neighbor that attracted bus loads of kids

due to the distribution of king size candy bars. Unfortunately, an impaired driver struck one of

these candy seeking children. Every year NHTSA provides a promotional planner to warn the

public of these dangers. The planner includes messaging and templates that you may choose

from to support your impaired driving initiatives surrounding Halloween. These materials carry

the tagline, “Don't let Halloween turn into a nightmare,” a reference to both the spirit of Hallow-

een and the possibility of arrest or crashes due to impaired driving. I have localized these materi-

als for your use and placed them on my website at www.TSRP-Idaho.org under the “Press Re-

leases” tab. Please select, tailor and distribute these materials in a way that best fits your local

situation. Download the news releases, plug in your own name and send it out to the media. This

is free publicity for your prosecutor’s office and reminds the public of the dangers of impaired

driving. Feel free to contact me if you need the addresses handing out the candy bars. — Jared

Idaho

Prosecuting

Attorneys

Association, Inc.

IdahoProsecuting AttorneysAssociation