Drivers on Prescription Drugs Are Hard to Convict

By ABBY GOODNOUGH and KATIE ZEZIMA

The accident that killed Kathryn Underdown had all the markings of a drunken-driving case. The car that hit her as she rode her bicycle one May evening in Miller Place, N.Y., did not stop, the police said, until it crashed into another vehicle farther down the road.

The driver could not keep her eyes open during an interview with investigators, according to the complaint against her, and her speech was slow and slurred. But the driver told the police that she had not been drinking; instead, the complaint said, she had taken several prescription medications, including a sedative and a muscle relaxant.

She was charged with vehicular manslaughter and driving under the influence of drugs — an increasingly common offense, law enforcement officials say, at a time when drunken-driving deaths are dropping and when prescriptions for narcotic painkillers, anti-anxiety medications, sleep aids and other powerful drugs are rampant.

The issue is vexing police officials because, unlike with alcohol, there is no agreement on what level of drugs in the blood impairs driving.

The behavioral effects of prescription medication vary widely, depending not just on the drug but on the person taking it. Some, like anti-anxiety drugs, can dull alertness and slow reaction time; others, like stimulants, can encourage risk-taking and hurt the ability to judge distances. Mixing prescriptions, or taking them with alcohol or illicit drugs, can exacerbate impairment and sharply increase the risk of crashing, researchers say.

“In the past it was cocaine, it was PCP, it was marijuana,” said Chuck Hayes of the International Association of Chiefs of Police. “Now we’re into this prescription drug era that is giving us a whole new challenge.”

The police also struggle with the challenge of prosecuting someone who was taking valid prescriptions.

“How do we balance between people who legitimately need their prescriptions and protecting the public?” said Mark Neil, senior lawyer at the National Traffic Law Center, which works with prosecutors. “It becomes a very delicate balance.”

Some states have made it illegal to drive with any detectable level of prohibited drugs in the blood. But setting any kind of limit for prescription medications is far more complicated, partly because the complex chemistry of drugs makes their effects more difficult to predict than alcohol’s. And determining whether a driver took drugs soon before getting on the road can be tricky, since some linger in the body for days or weeks.

Many states are confronting the problem as part of a broader effort to keep so-called drugged drivers, including those under the influence of marijuana and other illegal drugs, off the road.

“We have a pretty clear message in this country that you don’t drink and drive,” said R. Gil Kerlikowske, President Obama’s top drug policy adviser, who wants to reduce drugged-driving accidents by 10 percent over the next five years. “We need very much to have a similar message when it comes to drugs.”

There is no reliable data on how many drivers are impaired by prescription drugs, but law enforcement officials say the problem is growing so quickly that states are putting hundreds of police officers through special training to spot signs of drug impairment and clamoring for better technology to detect it.

Even the prevalence of drug-impaired driving is unknown, since many states combine the arrest data with that for drunken driving. Mr. Kerlikowske points to a 2007 survey by the National Highway Traffic Safety Administration, which screened 5,900 nighttime drivers around the country and found that 16.3 percent tested positive for legal or illegal drugs.

The tests could not determine which drivers were impaired by drugs, but Mr. Kerlikowske said the results suggested a problem that had “flown below the radar” for too long.

“You don’t want to scare people,” he said, “but you certainly want to make them aware of the dangerousness. You can be as deadly behind the wheel with prescription drugs as you can with over-the-limit alcohol, and you are responsible for your own actions.”

In interviews, law enforcement officials around the country said anyone who drives while taking prescription drugs is at risk of arrest, not only those who drive recklessly. In one recent case near Bangor, Me., a pickup truck on a rural road was not swerving, speeding or otherwise hinting that its driver was impaired. A police officer stopped the truck because of its noisy muffler, then saw that the driver’s eyes were bloodshot and his speech slurred.

A Breathalyzer test found that the driver, Chester Annance, had not been drinking. Yet he was arrested based on the officer’s suspicion that he was on drugs, and a blood test later found opiate painkillers in his system.

Mr. Annance was convicted this month of driving under the influence of drugs. He received seven days in jail, a three-year license suspension and a fine. He is appealing the conviction.

“You don’t need to wait for a crash to happen before you charge someone,” said R. Christopher Almy, the district attorney in Bangor.

Defense lawyers say that in their zeal to make a statement about drug-impaired driving, the police are casting too wide a net and unfairly punishing people who are taking prescriptions as directed.

Tara Jenswold-Schipper, an assistant attorney general in Wisconsin, said she usually stuck to cases where drivers had mixed drugs, exceeded the proper dose or taken controlled medications without a prescription.

In one such case in that state, a former physician slammed his S.U.V. into a Honda Accord in April 2008, killing the pregnant driver and her 10-year-old daughter. Prosecutors said the physician, Mark Benson, had high levels of the sleep aid Ambien in his system, as well as Xanax, an anti-anxiety drug, and oxycodone, an opiate painkiller. Mr. Benson was sentenced to 30 years in prison.

Defendants can try to prove that they did not realize their medication would affect their driving, prosecutors said, but that argument may not hold up if the bottle had a warning label.

“Would you go home and start a chain saw and cut down a tree?” said Lt. Col. Thomas C. Hejl, the assistant sheriff in Calvert County, Md. “Why should you get behind the wheel of a vehicle when the same medication has the same side effects?”

Unable to prove impairment with blood tests, prosecutors in drugged-driving cases rely heavily on the testimony of “drug recognition experts,” law enforcement officers trained to spot signs of impairment in drivers. But there are only about 7,000 such officers nationwide, Mr. Hayes said, not nearly enough to respond to every traffic stop that may involve drugs.

“When they are involved,” he said of the experts, “our chances of convicting people are much higher.”

But persuading a jury to convict someone of impaired driving due to prescription drugs remains difficult except for the most egregious cases, said Douglas F. Gansler, the attorney general in Maryland.

“Because most people on the jury will also likely be taking prescription drugs for some ailment,” Mr. Gansler said, “whether it’s Lipitor or allergy pills or whatever it might be, they might think, ‘I don’t want that to become criminal.’ ”

http://www.nytimes.com/2010/07/25/us/25drugged.html?scp=2&sq=drugs&st=cse#

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Governor Brewer signs legislation into law

by Alia Beard Rau – Apr. 16, 2010
The Arizona Republic

Starting later this summer, U.S. citizens 21 and older can begin carrying a concealed firearm without a permit in Arizona.

Gov. Jan Brewer signed Senate Bill 1108 into law Friday afternoon. It eliminates the requirement for a concealed-carry weapons permit, but does require gun owners to accurately answer if an officer asks them if they are carrying weapon concealed. It also allows officers to temporarily confiscate a weapon while they are talking to an individual, including during a traffic stop.

“I believe strongly in the individual rights and responsibilities of a free society, and as governor I have pledged a solemn and important oath to protect and defend the Constitution,” Brewer said in a news release. “I believe this legislation not only protects the Second Amendment rights of Arizona citizens, but restores those rights as well.”

The law goes into effect 90 days after the Legislature adjourns for this session, which could happen in the next couple of weeks.

http://www.azcentral.com/news/election/azelections/articles/2010/04/16/20100416arizona-concealed-weapons-bill16-ON.html

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Jaxon Van Derbeken, Chronicle Staff Writer

Wednesday, April 7, 2010

The retired criminalist at the center of San Francisco’s drug lab controversy said Tuesday through her attorney that she will refuse to testify in a drunken driving case, asserting her right against self-incrimination.

Deborah Madden’s intention to invoke the Fifth Amendment is the latest fallout from a growing scandal that has forced local prosecutors to drop hundreds of narcotics cases.

The attorney for the alleged drunken driver had subpoenaed Madden – who is suspected of skimming drugs from the lab – because she had tested equipment used to measure suspects’ intoxication.

Madden’s attorney, Paul DeMeester, said the subpoena represented nothing more than an opportunistic bid to tarnish his client and the drunken driving case. Madden, he said, will refuse to testify about her time at the lab in that case or any other while she is under investigation.

The dustup over the misdemeanor drunken driving case underscores that Madden, 60, performed all sorts of tasks at the San Francisco crime lab in addition to testing drug evidence. It may also be a glimpse at things to come as prosecutors and defense attorneys try to contain, and exploit, the fallout.

Madden now faces unrelated cocaine possession charges filed in San Mateo County, but has not been formally charged with stealing drugs from the San Francisco lab.

Meanwhile, the drug lab has been shut since March 9 amid the Madden allegations and an independent audit that found the lab was sacrificing quality for quantity in testing drugs.

Many legal challenges

Madden’s history with the lab – detailed in 2,700 pages of documents that have not been disclosed – has rapidly become a target of legal challenges for lawyers in both federal and local cases. Prosecutors have dropped 250 cases before trial and are expected to drop hundreds more.

In one federal case against Dennis Cyrus Jr. – convicted last year and awaiting sentencing on 16 felonies, including three murders, in a federal drug racketeering case – the defense sought to reopen the issues surrounding Madden and the crime lab and asked to further delay sentencing.

The defense hopes to challenge the drug charges that are the basis of many of the federal offenses against Cyrus.

Prosecutors on Tuesday offered to allow only a two-month delay, but stressed in a court filing that the “the recent issues surrounding the SFPD Drug Laboratory raised by the defense cast no doubt on any of Cyrus’s multiple federal convictions.”

Prosecutors noted that Madden played only a limited role in the case against Cyrus, who faces three life-without-parole prison terms.

In the drunken driving case set to go to trial, Madden’s role was limited to testing equipment. The officer who arrested the defendant, not Madden, ran the repeated tests that showed the defendant was legally drunk.

In what may be the first in a string of court appearances, Madden was summoned to San Francisco court on Tuesday to be questioned about her role in the testing. But her lawyer told Superior Court Judge Newton Lam that she will assert her Fifth Amendment right.

“She would never have been subpoenaed if it were not for the current brouhaha,” DeMeester said after court. “If anyone wants to question her about the lab, sorry, the Fifth Amendment protects against that.”

The prosecutor, Maria Shih, told the judge she has no intention of calling Madden to the stand in the case against Robert Thomas, 41, who is held on his second drunken driving offense in 10 years.

Deputy Public Defender Maria Lopez told Lam she called Madden to answer for her role in testing instruments that implicated her client. Lopez added that she has a separate motion to seek 2,700 pages of documents related to the lab and Madden. Prosecutors have not responded to that request.

May face pressure

Lopez said Madden may be able to refuse to respond to some questions, but may be ordered by the judge to answer others.

Today, Madden will likely be called back to court to formally assert her refusal to testify.

E-mail Jaxon Van Derbeken at jvanderbeken@sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/04/07/BAL11CQLFE.DTL

This article appeared on page C – 1 of the San Francisco Chronicle

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Five Surprise residents decided two fired Surprise police officers should get their jobs back.

The city’s Personnel Appeals Board voted to overturn the Surprise Police Department’s termination of Michael Kennedy and Richard Yost, citing a lack of consistency in discipline meted out to officers.

Kennedy and Yost were fired in January after a Police Department investigation found they disobeyed a sergeant’s order not to confront a resident.

The man had claimed Kennedy took a laminated photo and 50 cents after an October arrest.The board voted 3-2 in Kennedy’s favor and 4-1 in Yost’s favor. It was the first time the city’s personnel board had been used for employee appeals.

When the decisions were announced after an emotional eight-hour hearing, about two dozen police officers and residents ran to Kennedy and Yost. There were hugs, cheers and tears.

Kennedy ran and leaped into the air in Surprise City Council chambers.

“I’ve never been more happy in my life. I can’t wait to go back to work,” Kennedy said. Later, a city official told him not to speak to the media.

Yost declined to comment.

Surprise Police Chief Dan Hughes said he respected the decision.

“They got a second chance,” he said. “They’ll make the best of it; we’ll make the best of it.”

The police chief said he appreciated that the board approved the police department investigation.

Board members said the investigation was fair and displayed “sufficient proof” of violations. The board also agreed the officers should have known they could be disciplined for their actions because they violated police department policies.

Assistant City Attorney Misty Leslie argued Friday that the officers willfully disobeyed their sergeant’s order 10 minutes after he told them not to go to the resident’s home.

Hughes was the only person to testify for the city although a handful of Police Department managers, including Sgt. Bert Anzini, attended.

The case started with an order last November from Anzini, who told Kennedy not to go to the home without him.

Kennedy, a two-year officer, has said he misunderstood Anzini’s orders when he decided to go to the Surprise man’s home.

A police department investigation found Yost disregarded the sergeant’s order by parking near the man’s home while Kennedy talked to him.

Yost, a three-year Surprise officer, said he didn’t violate his supervisor’s order because he never went to the man’s house. Yost said that he parked nearby, in an area he was assigned to patrol, because he wanted to ensure Kennedy’s safety.

Both officers said the Surprise resident involved had a history of threatening police officers.

The Surprise Police Employees Association requested a review of Anzini’s actions in the case. An El Mirage lieutenant who reviewed the investigation documents in late March cleared Anzini of any wrongdoing.

Phoenix-based attorney Judith Abramsohn told the board that the police department should have chosen a division manager to conduct the investigation into Kennedy and Yost’s actions, according to city policy.

Abramsohn gave examples of cases where other officers disobeyed orders and received written reprimands.

Two Surprise police officers testified on Kennedy and Yost’s behalf.

Officer Evan Becher drew cheers when he said Anzini’s orders about confronting the Surprise resident did not appear to be serious, but that an order he gave to officers that they write 10 citations per month was more direct.

Leslie objected to Becher’s statement.

In her closing statement, Leslie said it was clear the officers had violated the sergeant’s orders and that conduct warranted their termination.

Kennedy then gave a tearful statement, saying he never meant for Yost to lose his job. Abramsohn was last to speak, arguing that the officer’s terminations were unfair.

The officers’ actions didn’t warrant termination, Board Member Ted Grove said before the vote: “I can’t go home and tell my wife that I voted to terminate an officer’s employment

because of the facts that were presented.”

Severin Hall, vice president of the police association, said after the hearing the group was happy with the board’s decision. Association leaders said they planned to meet with Human Resources Manager April Reynolds to discuss several issues brought up during the hearing, including claims of inconsistent discipline.

Reynolds said she will meet with Kennedy and Yost next week to discuss the process of bringing them back to work.

Kennedy and Yost will receive back-pay and their employee benefits will be restored, she said.

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by Michael Ferraresi – Mar. 4, 2010 04:28 PM
The Arizona Republic

Phoenix police on Thursday announced the department is reviewing its process of disciplining officers accused of drunken driving.

A department spokesman said the decision to review the policy began months before the Jan. 3 arrest of a Phoenix officer who was stunned with a Taser and cited with driving under the influence following a tussle with Gilbert police.

Seth Castillo, 27, is still on patrol, Phoenix police Sgt. Tommy Thompson said.

Lab results showed Castillo had a 0.17 blood-alcohol level. The legal limit is 0.08. He was cited and released, though he faces misdemeanor DUI-related charges.

Castillo admitted to a Gilbert officer to drinking two 24-ounce beers and taking prescription Ritalin before officers found him passed out and slumped into the passenger seat of his SUV, according to police records. When officers woke Castillo, he made a threatening move and was stunned with the Taser, police said.

Castillo was never placed on paid administrative leave, though his actions prompted an internal investigation. Officers accused of felonies are often placed on paid administrative leave while cases like Castillo’s are handled by the officer’s supervisors, Thompson said.

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Following the finding of the jury, a criminal court judge fined Powell $300 and suspended his license for 90 days. Powell is also required to complete a DWI education program.

Powell had argued that he was not driving drunk in Manhattan when he was stopped by police in March of 2008. Police countered that Powell was driving erratically and a preliminary, roadside breath test showed the presence of alcohol, though under the .08% threshold for New York DWI. Powell refused to submit to a more precise blood alcohol test at the police booking station.

Powell has contended that police targeted him because of his position and family legacy in politics. He said, “the fact is that, again, when a cop lies, we can all be guilty of something.”

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