JUSTICE SUMMER 2012
From The ABA and The National Highway Traffic Safety Administration
dWI SatUratIon patrolS and enForCement QUotaS – a FIne lIne?
Hon. Neil Edward Axel stops. The use of saturation patrols, however, may raise issues
Judicial Outreach Liaison, NHTSA Region 3 from time to time for the trial judge to consider.
Ellicott City, MD
A recent case in Maryland points out that there may be a
According to statistics maintained by the National Highway Traffic fine line between permissible saturation patrol performance
Safety Administration (NHTSA) more than 10,000 people died in measures and illegal quotas that may impact the outcome of a
drunk driving crashes in the United States in 2010, accounting DWI trial. In order to avoid a future cut-off of funding, the police
for 31% of all traffic deaths that year.1 In 2000, alcohol-related agency quantified a performance measure for those officers
crashes in the United States cost the public in excess of $50 who volunteered to participate in the saturation patrol. The
billion in monetary costs and approximately $63 billion in quality performance measure was set forth in a written memorandum
of life losses.2 Efforts to combat drunk driving have included to the officers that stated that an average of 2-4 citations must
law enforcement, prosecution and adjudication, prevention, be written hourly by each officer on the saturation detail.6 When
community outreach, and alcohol treatment to name just a challenged in court, this performance measure was perceived
few.3 In the areas of law enforcement and prevention, one of to be a quota requiring officers to write a minimum number of
the proven effective countermeasures against drunk driving is the tickets in a given time frame. Although Maryland law does not
use of DWI saturation patrols. prohibit quotas in general, it does prohibit the use of performance
quotas as the “sole or primary criterion for promotion, demotion,
Saturation patrols involve law enforcement deploying additional dismissal, or transfer” of a police officer.7 The trial court, however,
police officers to targeted roadways during select time periods interpreted this provision more broadly and held that the grant
to detect and apprehend impaired drivers. Typically the use of performance measure was a prohibited quota and suppressed
saturation patrols is publicized to the community in advance. The the evidence obtained during and following the traffic stop.
purpose of this heavier police presence, coupled with advance
publicity, is to deter impaired driving by increasing one’s perceived Although it is unlikely that future prosecutions will fail under
risk of arrest.4 This dual approach of enforcement and publicity the above circumstances, judges may be called upon to decide
has been proven to be effective in saving lives and preventing whether a police officer’s testimony is credible where grant
would-be drunk drivers from even getting behind the wheel of funding requires the collection and reporting of arrest and
a car.5 citation statistics. In almost any trial, a judge is called upon to
weigh a witness’s credibility. In weighing and assessing one’s
To encourage the use of saturation patrols and to assist States testimony, judges apply their own common sense and every day
in meeting the costs of increased patrols and overtime for law experiences to a number of factors including demeanor on the
enforcement officers, as well as the cost of publicity, Federal witness stand, opportunity to observe, accuracy of the witness’s
grants have been awarded to local jurisdictions. These grants may memory, motive, bias, and consistency with other evidence
require that the police agency report the number of arrests and presented.8 In the case of saturation patrols, it is important for
citations issued on a quarterly basis. This reporting requirement is judges to recognize and understand that grant funding typically
in place to ensure that tax dollars are well spent in programs that requires the reporting of certain performance measures in order
are designed to prevent and detect impaired driving offenses. to comply with the grant. Unlike in the recent Maryland case, it
Saturation patrols are legal in all 50 states, and do not present
many legal issues beyond those associated with routine traffic (continued on page 2)
editor’s note Dwi saturatiOn patrOLs anD
enForCement QUotaS – a FIne lIne?
Highway to Justice is a publication of
the American Bar Association (“ABA”)
and the National Highway Traffic Safety (continued from page 1)
Administration (”NHTSA”). The views
expressed in Highway to Justice are those of is unusual for these performance measures to be quantified as a specific
the author(s) only and not necessarily those requirement and conveyed to the officers on the street. The fact that
of the ABA, the NHTSA, or the government performance measures exist should be only one of many factors for the
agencies, courts, universities or law firms Court to consider in weighing the testimony of the arresting officer in a
with whom the members are affiliated. DWI trial.
Similarly it is important for police agencies to be careful that their
We would like to hear from other judges. If procedures do not convey, suggest or require the imposition of an illegal
you have an article that you would like to quota, or set forth performance criteria that might call into question the
share with your colleagues, please feel free objectivity or reliability of an officer’s observations, or his or her credibility.
to submit it for inclusion in the next edition
of Highway to Justice. ___________________________________________________________
To submit an article, please send it to Marc
Christopher Loro, Senior Legal Advisor, Office 2 Taylor, Dexter; Miller, Ted; and Cox, Kenya. “Impaired Driving in the United States Cost
of the Secretary of State, Department of Fact Sheets.” Washington, DC: National Highway Traffic Safety Administration, 2002.
Administrative Hearings, firstname.lastname@example.org. http://www.nhtsa.dot.gov/people/injury/alcohol/impaired_driving_pg2/US.htm
Please also copy Gena.Taylor@americanbar. 3 Countermeasures That Work: A Highway Safety Countermeasure Guide for State
org. Highway Safety Offices, Sixth Edition 2011, at page 1-3 (DOT HS 811 444).
4 Countermeasures That Work: A Highway Safety Countermeasure Guide for State
The deadline for submission of articles for Highway Safety Offices, Sixth Edition 2011, at page 1-20 (DOT HS 811 444).
the Fall, 2012 issue is August 22. 5 Countermeasures That Work: a Highway Safety Countermeasure Guide for State
Highway Safety Offices, Sixth Edition 2011, at page 1-20 (DOT HS 811 444).
6 Judge Throws Out DUI Case, Citing Quotas, The Baltimore Sun, January 6, 2012, at
7 §3-504, Public Safety Article, Annotated Code of Maryland.
8 Maryland Pattern Jury Instructions MPJI-Cr 3:10 (1999).
Can iMpaireD Driving stakehOLDers
Hon. Karl Grube
Florida Judicial Outreach Liaison
St. Petersburg, FL
Can local judges, prosecutors, defense attorneys, probation officers, po-
lice, driver license representatives, court clerks, and treatment providers
ethically meet to discuss Driving Under the Inﬂuence (DUI) Issues? Can
judges ethically organize and serve on stakeholder committees whose
purpose is to improve the delivery of justice in DUI and other traffic-re-
lated cases? There is evidence that judges can not only meet and work
with stakeholders but that they are ethically encouraged to do so.
The concept of criminal justice stakeholders meetings began some years
ago when the National Highway Traffic Safety Administration (NHTSA)
invited representatives from the judicial, executive, and administrative
branches of state governments to discuss enforcement, prosecution, ad-
judication, supervision, sentencing and treatment issues involved in im-
paired driving cases. The purpose was to see if there were practices and
(continued on page 3)
Can ImpaIred drIvIng StakeholderS reaSon together?
(continued from page 2)
approaches that could be implemented nationwide to improve Discussing DUI issues and resolving matters such as schedul-
the delivery of justice in impaired driving cases without compro- ing and discovery is allowed, but discussing pending or im-
mising the independence of any of the various criminal justice pending cases of individual defendants must be avoided.
system stakeholders. While the Florida Supreme Court Ethics Committee’s opinion
addressing Judicial ethics Concerns of meeting does not have precedential value in other states, it may how-
with Criminal Justice Stakeholders ever be a valuable indication of how other ethics advisory
committees would rule if presented with a similar inquiry.
The major concern regarding the concept of stakeholder meet-
Other states that have already issued favorable judicial eth-
ings came from the judges. Would meeting with law enforce-
ics opinions on stakeholder meeting issues include Illinois, in
ment, prosecutors, and defense attorneys compromise their in-
Opinion 98-1, and South Carolina, in opinion 23-2006.
dependence and give the appearance of impropriety in so far as
discussing issues in the very cases that they were sworn to judge Implementing dUI Stakeholders meetings
fairly and impartially? When judges are concerned about the One Florida state court that relied on Opinion 04-14 was the
ethical propriety of contemplated conduct, they can seek ethi- Pinellas County Court, which serves Clearwater and St. Pe-
cal guidance from a number of sources. These sources include tersburg, Florida. Under the leadership of County Judge Wil-
the Code and Canons of Judicial Conduct, commentary to the liam Overton, stakeholders in the DUI adjudication process
Canons, treatises on ethics, reports of disciplinary committees joined together to discuss the impact of the State’s manda-
and the opinions of ethics advisory committees that have been tory Alcohol Ignition Interlock Device (IID) law. In addition to
created to provide guidance to judges concerning contemplated a demonstration of the device, prosecutors, criminal defense
extra-judicial activities. lawyers, probation officers and judges discussed in what cas-
Judges in Florida requested a judicial ethics advisory opinion be- es the device would be mandated, how compliance would
fore deciding whether to consider gathering with criminal jus- be monitored, and how violations of court ordered compli-
tice system stakeholders to discuss impaired driving issues. The ance would be addressed and processed. The meeting also
request to the Florida Supreme Court Ethics Committee for an resulted in cooperative efforts to provide information to the
opinion posed the following question: practicing bar and the public concerning the operation of the
“May a judge implement a local Criminal Advisory Com-
mittee that would include representatives from the offic- In conclusion, a criminal justice advisory committee, such
es of the State Attorney and Public Defender, the criminal as the one implemented in Florida, is an effective means of
justice bar, the Sheriff’s department, local law enforce- bringing stakeholders together to listen to and learn from
ment, felony and misdemeanor probation departments, each other and to reason together and address common is-
clerk of the court, court administrator’s office, the depart- sues. It provides the opportunity to improve the delivery
ment of motor vehicles, and drug and alcohol treatment of justice in DUI and other criminal traffic cases. Can DUI
providers involved in the disposition of felony, misde- stakeholders reason together ethically? The answer is yes.
meanor, and traffic cases?” Perhaps just as important, the implementation of such stake-
holder’s conferences should be encouraged.
a Favorable Judicial ethics advisory Opinion
Opens the Door _________________________________________________
1 See the Code of Judicial Conduct for the State of Florida, as amended
The answer of the Florida Supreme Court ethics advisory com- through July 3, 2008, and Canon 4: A Judge Is Encouraged to Engage in
mittee was “yes.” In its Opinion 04-14 the committee pointed out Activities to Improve the Law, the Legal System, and the Administration of
that Canon 4B provides that a judge may speak, write, lecture, Justice
teach, and participate in other quasi-judicial activities concern-
ing the law, the legal system, and the administration of justice Editors Note: The University of Illinois at Springfield Institute for Legal,
Legislative, and Policy Studies (ILLAPS) organized and held a DUI System
subject to the requirements of the Code.1 The commentary to
Stakeholder conference on its campus on July 26th, 2011. Titled “Best Prac-
Canon 4B recognizes that as a judicial officer and person specially tices for Sentencing, Supervising, Evaluating and Treating the DUI Offend-
learned in the law, a judge is in a unique position to contribute er,” the Institute is launching a multi-year effort to reduce the recidivism
to the improvement of the law, the legal system, and the admin- rate for DUI offenders in Illinois. Judges, probation officers, evaluators,
istration of justice and to the extent that time permits, a judge is and treatment providers participated in multi-disciplinary discussions and
small group activities towards a long term goal of improving public safety
encouraged to do so, either independently, or through a bar as- through better DUI policy and practice in Illinois. As a follow up to the con-
sociation, judicial conference or other organization dedicated to ference, a preliminary report of the conference’s results will be published
the improvement of the law. Opinion 04-14 came with a caveat: this summer.
DruggeD Driving: On everybODy’s raDar, part 2
Hon. Peggy Fulton Hora crafted to ferret out these issues and ensure an unbiased
Judge of the Superior Court (Ret.) jury venire.
Judicial Outreach Liaison, NHTSA Region 9
Walnut Creek CA Motions in limine regarding the arresting officer’s testimony
are likely in a drugged driving case regarding the scientific
Part 1 of this article, published in the Spring, 2012 issue of validity of tests such as HGN or Standard Field Sobriety Tests
Highway to Justice looked at the scope of the problem of (SFSTs) as they relate to drugs other than alcohol. What
drugged driving, how drugs affect driving and how different drugs, if any, cause HGN or Vertical Gaze Nystagmus (VGN)?
states have responded to the issue with per se and non- Is the Daubert/Frye standard met with these tests as related
per se laws. The article may be found at: http://www. to drugs?1 These are all issues likely to be raised by the
americanbar.org/content/dam/aba/publications/judicial_ defense in a drugged driving test.
SFSTs are validated for alcohol and consist of the Horizontal
Unique Legal Issues Gaze Nystagmus (HGN) test, Walk and Turn test, and One
Leg Stand test. One court held HGN is a scientific test
There are unique legal issues that may arise in a drugged subject to Frye;2
driving or combination alcohol and other drug case, such as:
some courts say it satisfies Daubert and find it is acceptable
• suppression motions and other pre-trial matters scientific testimony.3 Eight states say it is just another SFST
and not a scientific test at all. After the court determines
• public opinion about illicit drugs affecting jury voir dire whether it is admissible and as what, they it must decide
who can testify. If it is a SFST, then the arresting officer
• Daubert/Frye scientific evidence issues
who administered it may testify. If it is a scientific test,
• the validity of field sobriety tests, including then expert testimony may be needed. And the
Horizontal Gaze Nystagmus (HGN). court should always be clear about the SFST’s
applicability to drugs other than alcohol. For
• confrontation issues with lab results, and instance, HGN is present with depressants but not
• admissibility of lay and/or expert opinion
Bullcoming v. New Mexico4, the 2011 U.S.
The initial stop in a drugged driving case may be Supreme Court case regarding the admissibility
different from that seen in alcohol impairment of forensic lab reports, is bound to raise many
cases. Does marijuana cause weaving? Speeding? complications in conducting a trial for drugged
What’s the effect of Ambien? Cocaine? Is there driving. That case said the prosecution may
an odor of marijuana, alcohol or both? Can not introduce a forensic lab report containing
pill bottles be seized or a joint in an ashtray a testimonial certification through the in-court
preserved for evidence? All these issues testimony of another scientist. In other words,
and more could lead to suppression the defendant has a right to be confronted with
issues necessitating a pre-trial the analyst who made the certification (unless he
evidentiary hearing. The court or she is unavailable at trial and the defendant has
will need to hear evidence from a had an opportunity to cross-examine him or her prior
qualified witness on the issue of what to trial.) This is contrary to the practice in many states
drugs affect driving and how that is where a forensic toxicologist from a certified laboratory
exhibited. comes in and testifies about the validity of a result
regardless of whether that scientist is the one who did
The ability to seat a fair jury is the
the test. For jurisdictions in which the prosecutor’s
hallmark of due process in a trial.
office sends tests out of state, that necessitates
There may be public attitudes about
bringing in the lab worker from another state.
marijuana or other drugs that could
Since this is a relatively new case, it remains to be
affect this outcome. Do jurors think
seen what other ramifications may be presented.
marijuana is a “soft drug”? What
about “medical” marijuana? Is there a Federal Rules of Evidence §701 allows “Lay
difference in a juror’s mind between Opinion” testimony that is rationally based on
impairment caused by an over-the- the perception of the witness and would be
counter or prescribed medication helpful to a clear understanding of testimony of
compared to an illicit drug? Voir witness, or determination of a fact in issue. It is
dire questions must be carefully
(continued on page 6)
FunDing avaiLabLe FOr state JuDiCiaL COntaCt inFOrMatiOn
To learn more about programs offered by
NHTSA, please contact one of the following:
The Impaired Driving Division of the National Highway Traffic Safety Hon. Neil Edward Axel, Judicial Outreach
Administration (NHTSA) is pleased to announce a funding opportunity Liaison, Region 3 (North Carolina, Virginia,
for State Judicial Outreach Liaisons. The purpose of this grant program Kentucky, West Virginia, Maryland, Delaware,
is to provide funding to State Highway Safety Offices (SHSOs) and/or District of Columbia): NeilAxel49@gmail.com
State Judicial Educators (SJEs) to create State Judicial Outreach Liaisons
(State JOLs) in their states. Through a competitive process, NHTSA will Hon. Kent Lawrence, Judicial Outreach Liaison,
provide assistance for up to ten (10) JOL positions in an amount not to Region 4 (Alabama, Florida, Georgia, South
exceed $50,000.00 per position. NHTSA funds will be used by the State Carolina, Tennessee): email@example.com
to support a State JOL for a period of 30 months.
Hon. Thomas P. Panichi, Judicial Outreach
All SHSOs and SJEs within the United States are eligible to receive Liaison, Region 5 (Minnesota, Wisconsin,
funding. Priority will be given to States that do not already have a State Illinois, Michigan, Ohio, Indiana, Illinois):
JOL or equivalent. To apply, please use this link:
https://apply07.grants.gov/apply/UpdateOffer?id=124390 Hon. Keith Rutledge, Judicial Outreach
Liaison, Region 7 (Arkansas, Missouri, Kansas,
These grant funds are intended to focus on the use of a State JOL who Nebraska, Iowa): firstname.lastname@example.org
can assist the SHSO and the judiciary in addressing impaired driving
and other traffic safety issues through the promotion of DWI Courts Hon. Mary A. Celeste, Judicial Outreach Liaison,
and ignition interlock devices and court, sentencing and supervision Region 8 (Nevada, Utah, Wyoming, Colorado,
practices, and judicial education regarding impaired driving and other North Dakota, South Dakota): email@example.com
traffic safety issues. States/agencies must also submit an assurance that
they will comply with the reporting requirements of this program, as well Hon. Peggy Hora, Judicial Outreach Liaison,
Region 9 (Arizona, California, Pacific
as any subsequent guidelines and regulations.
Hon. Mary Jane Knisely, Judicial Outreach
Liaison, Region 10 (Montana, Idaho, Oregon,
Washington, Alaska): maryjaneknisely@
Hon. Harvey J. Hoffman, NCSCJ Judicial Fellow,
Marc C. Loro, NCALJ Judicial Fellow, mloro@
Florida: Hon. Karl Grube: firstname.lastname@example.org
Texas: Hon. Mark Atkinson: matkinson@
appLiCatiOns nOw being aCCepteD Dates tO reMeMber
FOr JuDiCiaL FeLLOws
august 15 – september 3, 2012
National Highway Traffic Safety Administration (NHTSA) Impaired Driving
Judicial Fellowships are excellent opportunities for members National Enforcement Crackdown
of the Judicial Division to take part in judicial outreach and
share expertise regarding traffic safety issues. The mission
of the Judicial Fellow will be to serve as a conduit to deliver
resources, research and educational opportunities available
through NHTSA and its cooperative partners to judges and
citizens in their jurisdictions and where possible, promote For more information visit:
NHTSA’s priorities. www.stopimpaireddriving.org
Applications for the 2012-2013 Fellowship from the National
Motorcycle Safety - Drunk Riding Prevention
Conference of Specialized Court Judges (NCSCJ) and National
Conference of the Administrative Law Judiciary(NCALJ) are
now being accepted. Please visit the NCSCJ website (www.
ambar.org/jd/ncscj) or the NCALJ website (www.ambar.
org/jd/ncalj) for a more detailed job description and the
application. Deadline for applications is July 13, 2012.
If you have questions on either of the opportunities, please
contact Gena Taylor at 312.988.6716, 800.285.2221 ext.
6716, or Gena.Taylor@americanbar.org.
Alcohol affects those skills essential to riding a
motorcycle - balance and coordination. So it plays a
particularly big role in motorcycle fatalities.
For Marketing Materials visit:
(continued fron page 4) Motorcycle+Safety/Stop+Impaired+Riding
not based on scientific, technical or specialized knowledge. For General NHTSA Information visit:
While it is clear that lay witnesses may offer an opinion on someone
else’s state of sobriety regarding alcohol, it is not clear whether a
lay witness may testify about someone being under the inﬂuence of June 18, 2012
other drugs. Might that require scientific, technical or specialized National Ride to Work Day
knowledge thus making a lay witness’s opinion inadmissible? One Share the Road with Motorcycles
court found “lay testimony of drug intoxication is questionable, thus
requiring expert testimony of effects and interactions.”5 DREs may
usually testify as expert witnesses in drug cases and whether their
conclusion as to an ultimate fact (i.e., was the person “under the
inﬂuence”) is admissible depends upon the state.
As the detection of drugged driving becomes more common and
as more prosecutors become willing to charge these cases, many
challenges will be presented to the trial court and much new law will
1 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923).
2 llinois v. McKown (2010), 236 Ill.2d 278, 924 N.E.2d 941.
3 See the trial record in the case of People v. Brightful, et al., docket no. K-10- For Share the Road Materials visit:
40259, Carroll County, Md. http://www.trafficsafetymarketing.gov/CAMPAIGNS/
4 Bullcoming v. New Mexico 557 U.S. ___ (2011) (5:4). See a discussion of this Motorcycle+Safety/Share+The+Road
case in the Fall 2011 issue of Highway to Justice.
5 Commonwealth v. Griffith, 2009 PA Super 120 (Pa. Super. Ct. 2009)
thanks tO brian ChODrOw useFuL inFOrMatiOn at
The American Bar Association Judicial Division National Conference
of Specialized Court Judges wishes to express its deep appreciation
to Mr. Brian Chodrow who has been the Program Manager for NCSA has released their Leading Cause of
the Cooperative Agreement between the National Highway Traffic Death Fact Sheet. For the first time since
Safety Administration (NHTSA) and the ABA since the inception of 1981, motor vehicle crashes is not among
the top ten causes of death in the US. Motor
the program. The growth of the program and its success would not
vehicle crashes fell to number 11 overall.
have been possible without the support of NHTSA and its Program Motor vehicle crashes are still the leading
Manager. Brian has worked tirelessly to advance understanding of cause of death for children 8-11, youth 16-
issues faced by the judiciary in enforcing traffic safety laws. He has 20, and young adults 21-24.
been instrumental in providing information and resources needed
by the judiciary. His work has benefited judges throughout the http://www-nrd.nhtsa.dot.gov/
country. We are indebted to him for his support of the ABA Judicial Pubs/811620.pdf
Division, its mission and all judges.
Judge Kent Lawrence, a current Judicial Outreach Liaison, said the
following, “Brian Chodrow has for many years been viewed by The Bureau of Justice Assistance has a
law enforcement officers, prosecuting attorneys, and judges as an new publication available on Drug Courts.
invaluable resource to the legal system by providing continuing The document lists a number of useful
information on current public safety issues for NHTSA on a national resources.
level. In addition, Brian has proven to be an outstanding asset to both
Judicial Fellows and Judicial Outreach Liaisons. More importantly, nij/238527.pdf
Brian Chodrow is a loyal servant of utmost integrity and outstanding
character. I am blessed to have worked with him over several years,
and particularly pleased to view him as a “good friend”.
Using a cell phone while driving - whether
We appreciate his dedication to this project, and wish him the best it’s hand-held or hands-free delays a driver’s
in his new assignment. reactions as much as having a blood alcohol
concentration at the legal limit of .08 percent.
(University of Utah)
weLCOMe saM sinCLair
For more information on distracted
driving, see www.distraction.gov
The National Highway Traffic Safety
Administration (NHTSA) recently named *************************
a new manager for the Cooperative Do you want to know more about ignition
Agreement with American Bar Association. interlocks?
Sam Sinclair is now the manager of the
Judicial Fellowship – Judicial Outreach http://www.nhtsa.gov/staticfiles/nti/impaired_
Liaison project. Sam hails from Texas driving/pdf/811246.pdf
originally, where he worked for the Texas
Department of Transportation’s Traffic
Safety Office. He has over eight years of
experience leading projects related to occupant protection, speed,
impaired driving, traffic records, and select traffic enforcement.
He joined the NHTSA Impaired Driving Division in September of
2011 and is looking forward to working with the ABA to continue
the successful judicial outreach effort. Outside of work Sam enjoys
playing golf, long distance running, and spending time in Washington
DC’s various parks with his wife Halley and their two miniature
schnauzers, Dutch & Vito.
Our long standing NHTSA manager, Brian Chodrow, will be taking
over emerging initiatives in the Impaired Driving Division, such as
drugged driving and developing a traffic safety leadership model.