Issue #1: What are the major problems encountered in processing a drug-impaired driving case through the criminal justice system?
Many people practicing as forensic toxicologists come to the field with expertise in analytical chemistry, with limited training in the pharmacology of impairment in terms of drug impaired driving. The roles of the forensic chemist who performs or supervises the analysis of drugs in biological fluids are distinct from those of forensic toxicologists, who have the training and experience that qualifies them to interpret the results. Not all forensic chemists are necessarily qualified to go to court and provide interpretation of analytical results in impaired driving cases. Prosecutors also must critically assess the qualifications of their expert witnesses, and should not pressure witnesses to go beyond their areas of expertise.
The extent of the drug-impaired driving problem is still unknown. While there are growing but limited, resources for training and reference; there is also a lack of knowledge on the part of toxicologists about where to go to find the relevant information. Organizations such as the American Academy of Forensic Sciences (AAFS) and the Society of Forensic Toxicologists’ (SOFT) combined drugs and driving committee has done a lot to develop regular training opportunities for forensic scientists. Other programs such as Indiana University’s Center for Studies of Law in Action have also developed curricula in the effects of drugs on human performance and behavior. NHTSA supported an international consultative meeting of toxicologists in 2000, which resulted in the publication of Drugs and Human Performance Fact Sheets8. This is a concise resource on drug effects on driving. SOFT and AAFS, with support from NHTSA, have also developed detailed monographs concerning some of the priority drug groups for drug-impaired driving, published in Forensic Science Review.9
Forensic toxicologists often also have no ready access to the necessary medical and scientific literature, are not current with research developments in this field, and do not know what the standards of practice are, or what their peers are testifying to. Professional organizations and toxicology laboratory managers need to continue to promote training opportunities and to develop and distribute resource material. One missing resource is a listserv for peer consultation on drugs and driving issues. Another missing resource is a central Web site that would serve as a repository for publications, studies, fact sheets, and promote training opportunities. While groups such as the National Traffic Law Center10 (NTLC) also maintain lists of expert toxicological witnesses; however, this is not widely known and should be better publicized by professional organizations of prosecutors, toxicologists, and DREs.
In light of these considerations, the panel recommends that:
Most prosecuting attorneys arguing DWI and DUID cases are relatively inexperienced and can find the presentation of expert and scientific evidence intimidating. Due to large caseloads, their low comfort level with the issues and limited ability of the courts to try complex cases, many DUID cases get plea-bargained or dealt down to reduced charges. Most often more straight-forward cases involving alcohol are the ones that go to trial. Without a conviction for impaired driving, offenders do not get the sanctions their conduct merits, and incentives to change their behavior are correspondingly reduced, making them a continued menace on the roads.
Accordingly, this panel recommends that:
While prosecuting attorneys can turn to the law enforcement officers and toxicology experts on their witness lists for advice and one-on-one training on the specific technical issues at hand in a DUID case, they often do not know who to turn to for advice on legal issues involving drugs and driving, or on the presentation of expert testimony. Predicate questions can be helpful but they have limitations as the most effective use of a witness is based on the specific circumstances of the case.
The American Prosecutors Research Institute’s National Traffic Law Center is a resource available to all prosecutors across the nation. Additionally 26 States currently have a designated Traffic Safety Resource Prosecutor, a position partially funded by NHTSA. This individual maintains a brief bank, helps to coordinate similar issues between jurisdictions, can provide lists of experts, organizes and participates in local training, and can assist in motions hearings. This panel recommends that this program should be expanded to all 50 States.
The State Traffic Safety Resource Prosecutor should also coordinate between local jurisdictions and national organizations such as the American Prosecutors Research Institute, which maintains a national brief bank, a database of toxicological and other experts, and other services.
8 Couper, F.J., and Logan, B.K. “Drugs and Human Performance Fact Sheets.” Washington, DC: NHTSA, Technical Report No. DOT HS 809 725 (June 2004).