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Drug DUI and Cannabis

What are the effects of THC on the brain of a driver?

DUI and cannabis information needs to be shared. For both DUI attorneys and medical experts in the courts, this is a concept known as THC Kinetics and involves the concept of Hysteresis. Recently I attended a seminar that covered key issues, Questions and Answers on Drug DUI with Dr. Stefan Rose of University Medical & Forensic Consultants, Inc. We learned that during the time of smoking marijuana and during the intoxication period (if one occurs) the blood and brain THC concentrations are in disequilibrium with each other. Another term for disequilibrium is “counterclockwise hysteresis”. When the THC blood levels are high the intoxication is low. When the THC blood levels are low, the intoxication (if present) is high, but only for a short time (minutes to an hour or so). Therefore it is IMPOSSIBLE to predict any pharmacologic effect at any point in time based on a blood THC test result. Nevertheless, there are harsh sanctions / penalties for refusing to take a test, when asked.

What is the scientific basis for urine testing and prediction of impairment by a driver?

NHTSA addresses Urine THC Kinetics in Drugs and Human Performance Study. With respect to Interpretation of Urine Test Results: Detection of total THC metabolites in urine, primarily THC-COOH-glucuronide, only indicates prior THC exposure. Detection time is well past the window of intoxication and impairment.

What do controlled clinical studies tell us about DUI and drug impacts on THC Cannabis impairment?

Published excretion data from controlled clinical studies may provide a reference for evaluating urine cannabinoid concentrations; however, these data are generally reflective of occasional marijuana use rather than heavy, chronic marijuana exposure. It can take as long as 4 hours for THC-COOH to appear in the urine at concentrations sufficient to trigger an immunoassay (at 50ng/mL) following smoking. Positive test results generally indicate use within 1-3 days; however, the detection window could be significantly longer following heavy, chronic, use. Following single doses of Marinol®, low levels of dronabinol (same as THC) metabolites are present for more than 5 weeks in urine. Low concentrations of THC have also been measured in over-the-counter hemp oil products – consumption of these products may produce positive urine cannabinoid test results.

What do we know about drug driving and THC Kinetics?

1. When smoking marijuana, THC is rapidly absorbed into the bloodstream from the alveoli in the lungs

2. The peak blood THC concentration occurs within minutes near or after the end of smoking

3. The THC goes through the blood to the organs and tissues of the body

4. As the blood THC concentration is falling the brain THC concentration is rising (hysteresis) therefore NO correlation of blood THC concentration to intoxication exists

5. The blood flow–peak determines the time to reach maximum THC concentrations in the various organs and tissues. The organs with the most blood flow have THC concentration the quickest

6. The organs with the highest blood flow are the brain, liver, kidneys and lungs

7. Skeletal muscle has low blood flow and fat tissue has very low blood flow

8. Fat accumulates THC slowly, and releases THC back into the bloodstream for days, weeks and months after the last dose of THC

9. Chronic marijuana users may have measurable residual THC levels in the blood for days and weeks after the last dose

10. A single blood THC result cannot determine when a person smoked marijuana or how much marijuana a person smoked!

11. A single blood THC result by itself cannot determine a person’s impairment from THC. Clinical correlation is necessary!

Can a THC Result Can ever Predict Impairment?

1. THC Blood : Serum ratio not known (if sample is serum)

2. THC Kinetic curve unknown (THC at driving not known)

3. THC Hysteresis effect not known

4. Residual THC in blood not known

5. THC drug-dose response not known

6. THCt olerance not known

7. CBD content and effect not known

8. Neurologic exam for THC effect not performed

9. Even NHTSA says it cannot be done!

How can a lawyer and an expert Challenge Blood Drug Results?

1. Challenge the chemical analysis for quantitative and qualitative accuracy. The quantitative value ALWAYS has error and uncertainty associated with it. Challenge the quantitative value through the ISO 17025 standard. Inspect ALL documents from the Laboratory Litigation Package and look for qualitative errors. A successful challenge to a driver’s license suspension can avoid a suspension.

2. Challenge the idea that a single blood drug test predicts blood drug concentration at the time of stop or crash. Blood drug concentrations are a moving target, and constantly changing. Therefore blood drug concentrations at the time of a stop or crash are unpredictable with a single blood drug test result. In fact, the only way to know the blood drug concentration is to have a blood sample taken at the time of the stop or crash

3. A blood drug concentration can NEVER predict the pharmacologic effect, or impairment on any individual even with known blood drug concentration! Pharmacology studies include populations of people, and those studies do not predict the pharmacologic effect on any individual because of the wide range of response to any drug. Modern medical pharmacology holds that doctrine to be true and cannot be changed for the sake of litigation. Counter-clockwise hysteresis of THC makes the prediction of impairment from a blood THC result IMPOSSIBLE.

What are important cross examination questions to ask in Drug DUI cases?

1. What type sample was analyzed? Whole blood, serum, plasma?

2. If serum/plasma, what was the whole blood: serum THC ratio?

3. What sample type are you referring to regarding any study of pharmaco-kinetics/pharmaco-dynamics?

4. Have you made the necessary correction in your calculations if the sample type is different?

5. How do you know what the defendant blood: serum THC ratio was?

6. What is the target organ that THC affects? (BRAIN)

7. What is the BRAIN THC concentration that causes impairment?

8. Was the BRAIN THC concentration measured?

9. A low blood THC concentration can mean a high or low brain concentration, correct?

10. Blood THC concentration does not predict BRAIN THC, does it?

11. How do you know what the defendant’s BRAIN THC concentration was?

12. Even if you knew the BRAIN THC concentration you would not know if that caused impairment, would you?

13. There is no published correlation between blood THC, BRAIN THC and impairment, is there?

If you need a forensic consult on your case please contact Dr. Stefan Rose directly by email at toxdoc@umfc.com or call 561-795-4452. Questions and Answers from recent Class on Drug DUI with Dr. Stefan Rose. University Medical & Forensic Consultants, Inc. ©2015.

Florida Drug Recognition Experts DRE

Using Drug Recognition Experts (DRE), in Florida DUI cases and across the nation, law enforcement and prosecutors are trying to circumvent the ability of jurors and Judges to reach their own conclusions as to the impairment, if any, of criminal suspects.

We have obtained training manuals and reviewed the evidence used to support these “experts” and you may also conclude the ability of these witnesses to meet the stringent requirements for admissibility of “scientific” evidence is far from generally accepted within any communities other than law enforcement. Such witnesses should be stricken from Prosecutors’ witness lists. In five minutes you will know: What is the History and Origin of the DRE? What is done during Drug Recognition Experts (DRE) training? Who does the DRE training? What special skills are Drug Recognition Experts (DRE) taught that judges and jurors don’t already have? Does DRE “evidence” meet the standard for admissibility under Florida law and the Daubert standard?

What is the History and Origin of the Drug Recognition Expert (DRE}?

The Los Angeles Police Department developed this area of alleged expertise in the 1970’s. The federal law enforcement agency, the National Highway Traffic Safety Administration (NHTSA) soon jumped on the bandwagon. Strikingly, the “certification” is now issued by the cop’s own International Association of Chiefs of Police (IACP) and not by a generally recognized educational or scientific institution.

7 Days to a Better You (DRE)

What is done during DRE training?

A Seven (7) day school is supposed to cover a 706-page manual. The curriculum begins by citing the Frye standard for admissibility, a standard that was abandoned in Florida in 2013 (see discussion below: Does DRE “evidence” meet the standard for admissibility under Florida law and the Daubert standard ? ).

During the 7 day romp, cops are allegedly trained in the following areas: Eye examinations; Physiology; Vital signs; the Central Nervous System; Depressants; Stimulants; Physician’s Desk Reference; Dissociative Anesthetics; Narcotic Analgesics. That is only half of the allegedly scientific in-depth training.

Let’s visit the second half of this highly accelerated educational program: Inhalants, Vital Signs, Cannabis; Signs and Symptoms; Drug combinations; Writing a resume (Curriculum Vitae); and wrap it up with a list of questions defense attorneys will ask when the newly minted expert tries to spew this garbage in court.

Seven days to a better you – In short, street cops become quasi-medical professionals in only one week.

Who does the Drug Recognition Experts (DRE) training?

The National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP).

What special skills are Drug Recognition Experts (DRE) taught that judges and jurors don’t already have?

None. Generally, witnesses are not allowed to opine on the guilt or innocence of the accused. When police try to use these “experts” they are attempting to tell the jury how to rule and why. Since the alleged expert issues a highly prejudicial opinion on an ultimate issue in the case, courts must allow only legally admissible evidence to reach jurors.

Does Drug Recognition Experts (DRE) “evidence” meet the standard for admissibility under Florida law and the Daubert standard?

No. In July 2013, Section 90.704, Florida Statutes, was amended to read: “Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Since, 2013, there is little guidance from courts and judges on the validity of this testimony.

Florida Rule of Criminal Procedure 3.220 requires disclosure of “reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons . . . .” The rules also discuss, “expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify . . . .” In 1996, the rules also contemplated, “experts who have filed a report and curriculum vitae and who will not offer opinions subject to the Frye test.” FRCP 3.220 at 151 Note ( July 1, 2014).

Florida Drug Recognition Experts DRE are only alleged experts who issue highly prejudicial opinions on ultimate issues in the case, courts must allow only legally admissible evidence to reach jurors under the 2013 amendments to Florida law and the ruling of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and to no longer apply the standard in Frye v. United States, 293 F.2d 1013 (D.C. Cir 1923) . See generally, http://laws.flrules.org/2013/107 .

Standardized 12-Step Drug Recognition Experts Protocol

The 12-Step Drug Recognition Experts (DRE) Protocol is standardized because it is conducted the same way, by every drug recognition expert, for every suspect whenever possible. In the above video, the 12-Step Drug Recognition Experts (DRE) Protocol is not shown.

1. Breath Alcohol Concentration (BAC) Test administered to suspect
2. Interview with the Arresting Officer about BAC, the reason for stop & suspect’s behavior, appearance, and driving.
3. Preliminary Examination and First Pulse. DRE asks questions about health, recent food, alcohol, and drugs, including prescribed medications while DRE observes suspect’s attitude, coordination, speech, breath, and face. DRE examines pupils uses horizontal gaze nystagmus (HGN) and takes suspect’s pulse. If needed seek medical assistance immediately. Otherwise, the evaluation continues.
4. Eye Examination. behavior, appearance, and driving. DRE uses HGN, vertical gaze Nystagmus (VGN), and looks for a lack of convergence.
5. Divided Attention Psychophysical Tests. DRE administers the Modified Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose test.
6. Vital Signs and Second Pulse. DRE takes the subject’s blood pressure, temperature, and pulse.
7. Dark Room Examinations. DRE measures at pupil sizes under three different lighting conditions.
8. Examination of Muscle Tone. DRE examines the subject’s skeletal muscle tone (normal rigid, or flaccid).
9. Check for Injection Sites and Third Pulse. DRE looks for injection sites and takes suspect’s pulse.
10. Subject’s Statements and Other Observations. DRE reads Miranda, asks questions about drug use.
11. Analysis and Opinions of the Evaluator. DRE forms an opinion as the suspect is impaired. If DRE believes there is impairment, then the category of drugs will be indicated.
12. Toxicological Examination. DRE requests a urine, blood and/or saliva for toxicology lab analysis.

Sources: http://www.wsp.wa.gov/breathtest/dredocs.php

Tag: cannabis

Drug DUI and Cannabis in the Courts