The 2nd meeting of the Interim Joint Committee on Judiciary was held on Friday, October 19, 2007, at 9:00 AM, in the Multipurpose Room of the Robert Stephens Circuit Courthouse, Lexington, Kentucky. Representative Kathy W. Stein, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Robert Stivers II, Co-Chair; Representative Kathy W. Stein, Co-Chair; Senators Perry B. Clark, Ray S. Jones II, Gerald A. Neal, and Dick Roeding; Representatives Kevin D. Bratcher, Jesse Crenshaw, Joseph M. Fischer, Derrick Graham, Stan Lee, Steven Rudy, Robin L. Webb, and Brent Yonts.
Guests: Steve Bayers, the University of Kentucky; Eric Gregory, Building a Better Bluegrass Coalition; Captain Lusk, Kentucky State Police; Allen George, Woodford County Attorney; Captain Frazier, Kentucky Vehicle Enforcement; Larry Roberts, Fayette County Attorney; Mr. Robert Lotz, Kentucky Association of Criminal Defense Lawyers; Mr. Mark Bubenzer, Kentucky Association of Criminal Defense Lawyers; Mr. Byron Wesley, retired supervisor of the KSP Laboratory's Toxicology Division; Mr. Damon Preston, Trial Division Director for the Department for Public Advocacy.
LRC Staff: Norman Lawson, CSA, Jon Grate, Ray Debolt, Joanna Decker, and Michelle Coyle.
A quorum was not present. The first speakers were Steve Bayers of the University of Kentucky and Eric Gregory representing the Building a Better Bluegrass Coalition who described the mission of the coalition as promoting the needs of the Bluegrass part of Kentucky and who welcomed the members of the committee to the court house.
The first main speaker was Captain ____ Lusk of the Kentucky state police representing the Kentucky State Police, Kentucky Vehicle Enforcement, Department of Criminal Justice Training, Kentucky State Police Central Crime Lab, and the Kentucky Office of Drug Control policy, who gave a power point presentation in support of 08 RS BR , 08 RS BR , and 08 RS BR which relate to extending the "per se" provisions of driving under the influence provisions to driving under the influence of drugs and lowering the aggravating circumstance alcohol level from 0.18 to 0.15 in order to reduce accidents and earn additional federal funding.
Captain Lusk indicated that the National Highway Traffic Safety Association defines drugged driving as "Driving when a drug renders the driver incapable of driving safely or causes the driver to be impaired. Captain Lusk indicated that the current driving under the influence statute, KRS 189A.010, has per se limits for alcohol intoxication but does not have such limits for drugs which results in accidents causing loss of life and injuries.
Captain Lusk then presented statistics related to drug use in Kentucky. The Captain indicated that 8.5% of Kentuckians had used prescription drugs for nonmedical purposes in the past year and observed that Kentucky leads the nation in this problem; that 9.5% of Kentucky 12th graders reported using prescription narcotics within the past 30 days; that from 1999 to 2004 Kentucky prescription overdose deaths increased by 14%; in 2006 4,785 collisions resulted in an arrest for DUI and that 20% of those arrests involved drugs; the KSP Crime Laboratory examined 7,532 cases for drugs and that 63% of the cases tested positive for drugs in 2006. Captain Lusk then presented details of three cases involving drug driving deaths in what the Captain alleged that prosecution was dropped, or there was no conviction because there was no per se law.
Captain Lusk indicated that presently 15 states have driving under the influence of drugs per se laws and that 10 of these states have "zero tolerance" laws where the presence of any drug automatically brings a driving under the influence conviction. Captain Lusk then presented comments from prosecutors in Knott, Warren, Henderson, and Letcher counties regarding the increase in drug driving cases and the difficulty of proving impairment in such cases because of the unavailability of expert witnesses to prove that the drugs impaired the person's driving and the costs of providing such witnesses.
Senator Roeding indicated that he has supported drug driving per se legislation in the past and favors the proposed legislation. Representative Bratcher asked if a person would be presumed to be under the influence of drugs if prescription drugs were used. Captain Lusk replied that if the drug was legally prescribed and was within the therapeutic limits the bills provide for a defense to the charge. Senator Jones indicated that in Eastern Kentucky a coal truck hit a school bus and the driver of the truck was under the influence of drugs and had drugs in the vehicle. Senator Jones indicated that commercial drivers are frequently under the influence of drugs while driving in his part of the state and that cases involve both illegal drugs and the illegal use of legal drugs.
The next speaker was Woodford County Attorney Allen George who indicated that he supports the bills and that just recently in Woodford County the defense won a directed verdict of acquittal in a drug driving case because the Commonwealth was unable to present an expert witness to testify that the amount of drug in the blood of the driver would have caused the driver to be impaired. Mr. George further indicated that under present law the Commonwealth must prove that the driver was impaired by the type and amount of drugs used. Mr. George indicated that he also favors reducing the blood alcohol concentration for aggravating DUI offenses from 0.18 to 0.15. Representative Fischer indicated that he supports the zero tolerance approach. Senator Jones indicated that defense attorneys in drug driving cases have the blood test evidence suppressed because the Commonwealth cannot prove impairment by the drug taken and the amount of the drug present in the blood. Once the blood test is suppressed the only evidence is that of impairment if the officer observed impairment but that in many cases there is no such evidence because the driver may be dead, the driver may have been taken to the hospital, or no one saw the conduct leading up to the accident.
Representative Graham, commenting on a statement by Captain Lusk that Kentucky, Florida, and California were among the highest illegal drug use states, asked if Florida or California had passed per se or zero tolerance drug driving legislation to which the Captain replied, no. Senator Jones observed that the present proposals provide a defense in the case of legally taken prescribed drugs which are within therapeutic doses. Senator Roeding commented that many drugs, including over the counter drugs, impair persons even when taken within therapeutic limits. Chairman Stein asked "what are we trying to prevent?" to which Captain Lusk replied, loss of life.
The next speaker was Captain Frazier of Kentucky Vehicle Enforcement who coordinates that department's Drug Recognition Expert program in which officers are trained to identify impairment, the type of drug, involved, and be able to testify as to the effects of the drug taken. Testing involves not only the traditional tests such as the one leg stand, walk and turn, and horizontal gaze tests but includes blood pressure, pulse, pupil reaction in dark light and bright light, and other tests which are then correlated with information received in training and evidence at the scene to identify the drug taken and the level of impairment. Captain Frazier indicated that the evidence presented is being accepted by more and more courts and that other departments, including the Lexington Metro Police, are receiving the training. Captain Frazier indicated that, following training, the officer using a standard evaluation form, must have correctly identified the drug and impairment in at least 12 cases which were verified by laboratory results. Captain Frazier observed that chronic cocaine users and methamphetamine users actually do better on the walk and turn and one leg stand tests than people who are not impaired.
Fayette County Attorney Larry Roberts observed that a problem in many drugged driving cases is that there is no field sobriety or other on-scene testing of the driver because the driver was taken to the hospital and that a hospital blood test is the only evidence available. Mr. Roberts indicated that he favors the zero tolerance approach because judges are granting defense motions to suppress evidence and that there is no money to hire experts to testify as to impairment. Representative Webb observed that "we are getting convictions now" and that she sees people every day who drive with valid prescriptions. Mr. George asked, where was the impairment when the General Assembly passed the .02 alcohol limit for persons under 21? Senator Stivers asked why with a blood test showing drugs and police officer observations of driving or other evidence of impairment shown by field testing that a conviction could not be obtained under the present law. A reply was given that in some cases where there was impairment that it might be impossible to prove that the drug caused it. Senator Stivers observed that the KSP Laboratory should hire more personnel and train them to the expert level so that they could testify in court as to the level of drug which would cause impairment in DUI cases. Senator Stivers indicated that many jurors have "CSI syndrome" where they expect expert witness testimony in all cases and are not willing to convict where the evidence is not presented.
The next speaker was Mr. Robert Lotz for the Kentucky Association of Criminal Defense Lawyers accompanied by Mr. Mark Bubenzer from the same organization. Mr. Lotz indicated that his association agreed with the need for more trained KSP laboratory personnel. Mr. Lotz observed that under the present legislation a person would be guilty of drugged driving under the proposed legislation with 0.001 percentage of a controlled substance in the blood. Mr. Lotz indicated that DUI was not a minor charge and that job loss, inability to drive to work, family break up and other problems stemmed from such a conviction. Mr. Lotz observed that under the proposal no impairment would have to be shown in order to be convicted. Mr. Bubenzer observed that the proposal would take discretion away from the jury because once a drug was present in the blood there would be nothing for the jury to determine since impairment would not be a fact issue. Mr. Bubenzer indicated that the bill contains no objective standard for the offense of therapeutic levels of legally prescribed drugs in the blood. Mr. Byron Wesley, retired supervisor of the KSP Laboratory's toxicology section, indicated that there is no national standard for impairment for any drug, that there is no valid test for determining drug impairment, and the there was no correlation between having a drug in the blood and being impaired.
Mr. Damon Preston, Trial Division Director for the Department for Public Advocacy indicated that the proposed legislation has numerous problems. One is that drugs remain in the system for some time after being taken so even though there may be no impairment the drug may still be present. Mr. Preston further observed that there is no Daubert standard. The defense that a person had a valid prescription also does not work because persons who are being given methadone for abuse problems are routinely arrested and convicted for DUI in Eastern Kentucky under the present law. Mr. Preston observed that in cases involving deaths there would be more murder prosecutions under the proposed legislation because if drugs were involved conviction for DUI would lead to murder prosecutions under the present murder statutes and that prosecution and defense costs would rise. Mr. Preston observed that the allegations that prosecutors would dismiss cases in the pretrial phase of the case if there was a valid prescription would not happen because the statute specifies that this is a defense which must be raised at trial and that it is improper to raise the defense prior to trial. Mr. Preston also observed that the costs for expert defense witnesses would rise because therapeutic levels and impairment would always be an issue under the law as proposed.
Mr. Wesley indicated that at present the KSP laboratory does not have enough trained personnel and facilities to do the required testing and provide expert evidence on impairment in court. Senator Stivers asked Mr. Lotz if driving was a privilege, to which Mr. Lotz replied, yes; Senator Stivers then asked Mr. Lotz if it was the General Assembly that set policy, to which Mr. Lotz replied, yes, but that for the policy to be effective it must be reasonable and not hurt the citizen's belief in government. Mr. Lotz observed that what the prosecutors want to do under the proposed legislation is to convict people without proof just to make conviction easy. Mr. Lotz then commented on a National Highway Traffic Safety Administration study which indicated that drivers on cocaine and methamphetamine actually make better drivers, that some drugs stay in the system for 30 days or more and that the study concluded that there is no valid test showing drug impairment. Upon questioning by members Mr. Lotz indicated that new field tests using swabs can indicate the presence of drugs without a blood test.
Senator Roeding indicated that he supported the proposal that if an illegal substance is present that it should be unnecessary to show impairment. Representative Webb indicated that she felt that the legislation did not address the real problems of prescription drug abuse that there should be more focus on penalizing the drug companies. Representative Yonts indicated that he opposed the removal of the right to contact an attorney during the alcohol testing process. Representative Yonts also indicated that the defendant should be given a written implied consent warning because the oral warning given by the officer may be garbled and not properly understood.
The meeting was adjourned at 10:40 AM.