Wednesday, August 25, 2010

Defense attack on lack of injured in 173 Case Study

Recently, a Drug Recognition Expert officer was questioned in a deposition about aspects of the Los Angeles Field Validation Study, commonly referred to as the 173 Case Study. (Since this case is on-going, I will not divulge the specifics of the case.)

In this case, the defendant was injured, resulting in the DRE not being able to administer the complete 12 step evaluation. Nonethess, the DRE was able to form an opinion which was subsequently supported by toxicology. The defense challenged the DRE's testimony by pointing out that injured suspects were excluded from the 173 Case Study. In addition, the defense also pointed out that only blood was taken in the 173 Case Study. The prosecution expects the defense to attempt to have the DRE testimony excluded at trial, by arguing that the DRE evaluation was never intended to be performed on injured suspects.


In 1985, I was loaned to the LAPD's Traffic Coordination Section for the specific purpose of assisting in the development of the protocol (the steps) and the training of the officer-participants in this study. The Los Angeles Field Validation Study (later known as the 173 Case Study) was designed to assess the abilities of DREs, in a field (as opposed to laboratory setting) setting, using a step-by-step protocol, to determine if an individual was under the influence of drugs, and the specific category (s) of drug (s). The toxicological portion of study's design required blood draws. The sponsors of the study, primarily NHTSA, but also the National Institute on Drug Abuse, and researchers, decided to to use only blood as the toxicological confirmation specimen. (Ideally, if cost, time, and logistics weren't factors, we would also have taken urine, saliva, and even hair samples.) The sponsors and researchers also wanted to limit any interference with this purpose. Thus, we needed people who could perform the DRE evaluation without delay. Injured suspects obviously needed to have their injuries treated, often resulting in a delay, as well as compromised ability to perform some of the psycho-physical tasks. Also, as part of treatment for injuries, patients often are given other drugs.

No study can study everything. Although the 173 Case Study was limited in its scope, as all studies are, it was never intended to suggest that DRE assessments shouldn't be done on injured crash victims. Two additional points: First, the expertise of DRE comes from the trained officer, NOT the procedure (12 steps). The 12 steps are a tool to help the officer reach his/her opinion. Secondly, as I teach, testify, and have written, a DRE may be able to reach a supportable opinion of drug-influence even though the individual may not have been able to perform all parts of the evaluation. However, this NOT does entitle the officer to have a so-called lower standard of evidence to reach his/her opinion.

Finally, I suggest that all DREs reaquaint themselves with the 173 Case Study before they testify.

Monday, August 23, 2010

New stimulant being marketed directly to the public

The Medical Letter on Drugs and Therapeutics, published by The Medical Letter, Inc., of New Rochelle, New York, is a twice monthly nonprofit publication. I rely (and have relied for about twenty-five years) on this publication for accurate and unbiased information on pharmaceuticals.

The August 9, 2010 issue reports that the non-amphetamine stimulant armodafinil (brand name Nuvigil by Cephalon) is being promoted directly to to the public for excessive daytime sleepiness related to shift work. Armodafinil is related to modafinil (Provigil), which was approved by the FDA in 1988 for treatment of excessive sleepiness associated with narcolepsy. Modafinil is also used to treat excessive sleepiness caused by other conditions. There have been media reports that modafinil is being used by college students to stay awake, as well as by military personnel to endure lengthy missions.

Interestingly, The Medical Letter reports that the mechanism of action of armodafinil or modafinil to counter excessive sleepiness is unknown.

In clinical studies, common adverse side effects include nausea, dizziness, insomnia, and headache.

The Medical Letter cites reports of euphoria and illicit use of modafinil by students. The Letter states that armodafinil and modafinil increase dopamine levels in the brain, including the nucleus accumbens, and that drugs that increase dopamine in this part of the brain have a potential of abuse.

Armodafinil is a Schedule IV drug.

Frankly, I expect a certain portion of the population to seek out armodafinil and modafinil for not only their therapeutic benefits in treating excessive sleepiness, but for euphoric effects. After all, as DREs know, what can be used, can be abused.

Effective Police Report Writing, Tip#5

It's impossible to accurately predict which case will go to trial.

Los Angeles Deputy City Attorney Rosemary Chavez has prosecuted Driving Under the Influence of Drugs defendants for twenty years. She also teaches in the LAPD's Drug Recognition Expert school, as well as in the related Impaired Driver Apprehension (IDA) course.

In Rosemary's experience, cases you would think would go to trial, often don't, usually because the defendant pleads to the charge. The converse is also true, in that it's not uncommon for apparently strong cases to unexpectedly go to trial. Rosemary's point is that your DUI arrest report should thoroughly document all the elements of the offense, including the three phases of DUI detection, and the drug influence evaluation, if any.

Rosemary also reminds officers that "You can't ever not do your job." A comprehensive, accurate, and descriptive report is part of your job.

Tuesday, August 17, 2010

Effective Police Report Writing, Tip #4

The Prosecutor reviews your report over a cup of coffee.

Tom Beadle, an Assistant Prosecuting Attorney with the Wayne County (Detroit) Prosecuting Attorney’s Office, reminds us that the prosecutor wasn’t at the arrest scene. Neither was the jury. Rather, the Prosecutor reviews your report in a climate-controlled office while sipping a cup of coffee. As Tom says, “I want to smell the person. And I want the jury to smell the defendant and hear the defendant. Your report should take me back to the scene.” Part of your job as a professional is to prepare a comprehensive, accurate, and descriptive report. The prosecutor, the judge, and the jury rely on you to take them back to the scene.

Saturday, August 14, 2010

Effective Police Report Writing, Tip #3

Put something unique about the suspect/arrestee in your report.

This tip comes from Ellen Sarmiento, a Supervising Assistant City Attorney of the Los Angeles City Attorney’s Office. Ellen has served as the supervisor of the Metropolitan Court in Los Angeles for many years. Located in downtown LA, Ellen’s staff has prosecuted DRE cases since the beginning of the DRE program.

Having an “independent recollection” of an incident enhances your credibility with the judge and jury. By documenting something unique about the person, your independent recollection may be triggered. For example, if the suspect was wearing colorful socks, or had a visible gold tooth, including these facts in your report will help you remember the facts of the incident.

Wednesday, August 11, 2010

American Optometric Association Resolution supports DRE

Thanks to E. Robert Bertolli, O.D., of Connecticut, for sharing this with me. Dr. Bertolli has informed me that the resolution was unanimously passed by the House of Delegates on May 19, 2010.

American Optometic Association Resolution 1975

This is an excerpt from the Connecticut Association of Optometrists Newsletter, the President's column:

The American Optometric Association Resolution 1975 is an endorsement by the AOA of the Drug Recognition Expert program, which is a program used by highly trained police officers to detect people under the influence of drugs and alcohol. The program uses pupil and ocular motor tests as two of its testing components. Optometrists teach officers how the eyes react when under the influence of drugs or alcohol. The AOA is the first major medical community to endorse the program and this will be a major benefit for law enforcement and prosecutors. Resolution 1975 was a joint effort between the Connecticut and New Jersey associations.

I need to give Connecticut’s own Drs. E. Robert Bertolli and Robert Pannone credit for spearheading the concept. The CAO was the first Optometric Association to endorse the program after Dr. Bertolli presented the proposal to our Board of Directors twice last year. Shortly after learning of our resolution, New Jersey
followed our lead and passed a similar version. Our two State Associations then worked together for several months and countless hours in order to get this passed on a national level. This is expected to be a large public safety measure. This is a huge victory for us all and should make it much easier to introduce DRE testimony and evidence in court nationwide.

The AOA Endorsement could not have happened without the combined efforts of all of these folks, from consulting to face to face proposing and educating the AOA House of Delegates, and testifying for the Resolution Committee.

Optometrists

*****Connecticut Association of Optometrists (CAO)
E. Robert Bertolli, O.D. Board of Directors
Christopher L. Agro, O.D President
James Boccuzzi, O.D.President-Elect
D. Robert Pannone, O.D., Member
Lynn Sedlak, Executive Director

*****New Jersey Society of Optometric Physicians (NJSOP)
Michael J. Siegel, O.D.President
Charles H. Fitzpatrick, O.D. President-Elect
Harvey B. Richman, O.D., Immediate Past President
Maria S. Richman, O.D., Board of Directors
Jack E. Richman, OD, Member and Consultant
Howard Cooper,Executive Director

Law Enforcement Consultants:

Sgt. Kyle Clark, Florida State DEC Coordinator, Institute of Police Tech. & Management, Jacksonville, FL
Captain Terri Dioquino, Pinellas County Sheriff's Office, Largo, FL
Stephen Talpins, Chairman and CEO, National Partnership on Alcohol Misuse and Crime, Washington DC
Mark Neil, Senior Attorney, National Traffic Law Center,National District Attorneys Association,Alexandria,VA
Tom Page, DRE Emeritus
Congratulations everyone!!!!!!

Friday, August 6, 2010

Effective Police Report Writing, Tip #2

Juries want corroboration of the officer’s observations.

This tip comes from City of Minneapolis, MN Prosecutor Karen Herland. Karen, who served for many years on the IACP’s DRE Technical Advisory Panel (TAP), successfully prosecuted the landmark State v. Klawitter case. This was the first time that DRE testimony passed the scrutiny of a State’s Supreme Court.

Right or wrong, today’s juries don’t automatically assume that the police are infallible. Juries may not even believe that police officers always tell the complete truth. Therefore, your report should include the names and identifying information of others, particularly civilians, who witnessed the driving, the personal contact phase, the SFSTs, or other relevant aspects of the investigation. These witnesses may be valuable in corroborating your observations.