HANDOUT. Current Science &Technology to Detect and Monitor Alcohol and Drug Use in Impaired Driving Cases

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1 HANDOUT Current Science &Technology to Detect and Monitor Alcohol and Drug Use in Impaired Driving Cases Case Studies of Ignition Interlock Program (Follows PPT # 38) NHTSA April 2012 Points of Consideration: Program Strengths (support for stronger legislation, more efficient processes to monitor and supervise, developing & nurturing stakeholders) Suggestions for Interlock Program Developers (developing legislation, designing programs, implementing and managing programs, ) Interlock Program Areas for Improvement (provide for more interlock device oversight, perform routine and formal program evaluations, explore the role of interlocks in the broader context of highway safety, develop programs to combine administrative and judicial strengths more effectively i.e. move programs away from punishment model toward behavior modification. National Center for DWI Courts (Follows PPT #44) Ignition Interlock Device 10 Guidelines 1. Participants must follow the law. When legally allowed, participants should drive in an ignition interlock equipped vehicle. 2. DWI court team members need to understand state drivers license administrative law and procedure. 3. DWI court team members need to understand the devices available in their state. 4. Ignition interlock devices can be used to help monitor a participant s alcohol uses. 5. Use photo identification ignition interlock devices to provide proof positive of who provided the breath sample. 6. Participants must follow the law. When legally allowed, participants should drive in an ignition interlock equipped vehicle.

2 7. Incentives and sanctions are important in a DWI court ignition interlock program. 8. Indigence and program costs should be reviewed when using ignition interlocks. 9. Repeat DWI offenders are a dangerous target population keeping the community informed of this program is crucial. 10. DWI courts must provide clear written policy/procedures for the ignition interlock program. Breathalyzer Point in Time Testing Testing Schedule (Follows PPT # 48)

3 (Follow PPT # 48) Alcohol Monitoring System Lifetime Stats from 12/1/2002 through 3/25/2012 Overall CAM Only CAM + RF Overview # % # % # % Total Clients Monitored 222, , % 10, % Clients Currently on SCRAMx 14,743 13, % 1, % Total Readings 847,383, ,382, % 33,000, % Total Monitored Days 20,579,091 19,916, % 662, % Compliance Clients Completed 207, ,802 8,486 Compliant 158, % 151, % 7, % Non Compliant 48, % 47, % 1, % Confirmed Violations Overall 0 158, % 151, % 7, % , % 31, % 1, % , % 15, % % Breakdown of Confirmed Violations Drinking Only 7, % 7, % % Tampering Only 30, % 29, % % Both Drinking and Tampering 10, % 10, % % Overall Averages Avg. Days on Program Avg. Days on Program (Compliant) Avg. Days on Program (Non Compliant) Avg. Daily Non Compliance Avg. Days to First Situation Mary A. Celeste (c) 66 September 2012 NHTSA Report (Follows PPT #60) Trans dermal Monitoring Case Studies Six States (Co., Mo. Neb., N.Y., N.D., Wi.) SCRAM used in 1,764 Courts in 46 States Appears to be beneficial to courts, probation and parole in monitoring alcohol 1.4% offenders who completed SCRAM had a confirmed drinking event 16.9% had tamper violations More costly than Interlock ($5 $12 day vs. $2.25 $2.75 day). Concerns over low level drinking needing more investigation NHTSA is currently conducting the SCRAMx recidivism study, slated for release in mid 2013, which will take a broad range look at recidivism data for offenders in Neb, S.D. W Arguments For and Against Flashlight (Follows PPT # 76) According to the ACLU, the use of this tool by law enforcement is a violation of an individual's civil rights.

4 Because the passive alcohol sensor looks exactly like a flashlight, the driver would have no idea that they are being preliminarily screened for the presence of alcohol when an officer approaches their vehicle. Poses a serious disadvantage to designated drivers, who may be improperly asked to submit to chemical testing or field sobriety tests because alcohol was detected within their vehicle. More than a hassle and delay for a person doing the right thing. The flashlights are nothing more than an investigative tool. It is not the entire investigation. It lets officers know that there is alcohol in the air when someone. Is stopped. Police in most states have a right to conduct sobriety checkpoints to check for intoxicated drivers,. Proponents of the device claim it doesn't matter if the officer uses his own sense of smell or the device, it does not violate the plain sight doctrine. Alcohol and Urine Testing EtG (Follows PPT #84) False Positives Things that can increase or decrease EtG production due to changing enzyme systems Genetics Chronic alcohol use until liver failure Foods grapefruit juice, greens Medications erythromycin, St John s Wart (and many others) Pregnancy Diseases Gilbert s Syndrome, others (5% of population), (and many others) Is Electronic Supervision Authorized? (Follows PPT #87) if the supreme court will authorize the warrantless, unannounced entry and search of a probationer s home by his probation officer accompanied by police officers then use of GPS to track defendant is also allowed Griffin v. Wisconsin, 107 S.Ct.3164, 1987 Limitations to Electronic Monitoring (Follows PPT # 87) KRS (5) Kentucky mandates that no monitoring device capable of recording or transmitting: (a) visual images other than the defendant s face; (b) oral or wire communications or any auditory sound other than the defendant s voice; or (c) information as to the prisoner s activities while inside the home; shall be Approved.

5 NRS Nevada specifies that the [electronic supervision] device must be minimally intrusive and limited in capability to recording or transmitting information concerning the parolee s presence at his residence, including, but not limited to, the transmission of still visual images which do not concern the parolee s activities while inside his residence. a device which is capable of recording or transmitting: (a) oral or wire communications or any auditory sound; or (b) information concerning the parolee s activities while inside his residence, must not be used (b)(3) of the California Penal Code specifies that [electronic supervision] devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant which is to be used solely for the purposes of voice identification of the Home Detention Act, South Carolina defines an approved electronic monitoring device as one that is primarily intended to record and transmit information as to the defendant s presence or non presence in the home.... An approved electronic monitoring device may be used to record a conversation... solely for the purpose of identification and not for the purpose of eavesdropping or conducting any other illegally intrusive monitoring of the Home Detention Act, South Carolina defines an approved electronic monitoring device as one that is primarily intended to record and transmit information as to the defendant s presence or non presence in the home.... An approved electronic monitoring device may be used to record a conversation... solely for the purpose of identification and not for the purpose of eavesdropping or conducting any other illegally intrusive monitoring. Unreasonable Search of Home (Follows PPT #89) See for examples: Griffin v. Wisconsin, 107 S.Ct.3164, 1987 if the supreme court will authorize the warrantless, unannounced entry and search of a probationer s home by his probation officer accompanied by police officers then use of GPS to track defendant is also allowed See also People v. Daniel George Zichwic 94 Cal. App. 4th 944; 114 Cal. Rptr. 2d 733; 2001 Cal. App. Lexis 3413; 2001 Cal. Daily Op. Service 10683; 2001 Daily Journal Dar Unreasonable Search On Bond (Follows PPT #90) State v. Ullring, 741 A2d 1065 (Maine 1999), U.S. v. Scott, 450 F.3d 863, C.A. 9 (Nev. 2006). See also U.S. v. Gauthier, 2010 U.S. Dist. LEXIS (D. Maine Oct. 5, 2010) as a middle ground.

6 Double Jeopardy (Follows PPT #92) State v. Kovari, 1997 Wash. App. Lexis 718; Wash. Ct. App Due Process Electronic Monitoring (Follows PPT #93) See Cruz v. Texas Parole Div., 87 Fed. App. 346, 2004 WL (5th Cir. Jan. 30, 2004)(citing cases); Uresti v. Collier, 2005 U.S. Dist. Lexis 34292, 2005 WL (S.D. Tex. June 23, 2005); Taylor v. Remmers, 2002 U.S. Dist. Lexis 6518, 2002 WL (Apr. 12, 2002 n.d.i)but see People of the State of New York, v. Richard McNair, 87 N.Y.2d 772; 665 n.e.2d 167; 642 n.y.s.2d 597; 1996 N.Y. Lexis 326 (1996)given the probation statute's focus on rehabilitation, the catch all provision of that statute only permitted probationary conditions that were fundamentally rehabilitative. electronic monitoring was punitive. Cruel and Unusual Punishment (Follows PPT #94) Matthew E. Barton vs. Indiana 598 N.E.2d 623; 1992 Ind. App. Lexis Equal Protection (Follows PPT #95) Joshua Harris v. the Honorable Edsonya Charles, as Presiding Judge of the Seattle Municipal Court, et al.151 Wn. App. 929; 214 p.3d 962; 2009 Wash. App. Lexis

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