Category: DUI, Drugs & Driving

The Drug War Theory -Jus Ad Bellum?

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The Just War Theory (hereinafter JWT) is a subset of moral philosophy that addresses the questions about the moral justification for going to war (jus ad bellum) and the moral constraints on conduct within war (jus in bello). The theories underlying the JWT are illustrative of the rules used by attorneys in conducting the prosecution and defense of criminal defendants.  The five rules or requirements set forth to justify governmental aggression are: just cause, last resort, proportionality, right intention and right authority.

In war theory, the most basic rule of aggression is that one may only aggress if one has just cause. Once the legislative authority decides to proscribe certain conduct as being “criminal,” the rules of the Constitution, and the ethical rules of practice create a just cause for imposing the power of the government upon an individual citizen. So greatly do we prize our liberty that we have come to expect a trepidation in using the power of the State against the individual, that we follow the rules of JWT that aggression (in this case creating a category of crime) should be the last resort.  If another plausible alternative to government prohibition exists, the underlying theory supporting the State action is morally questionable. 

Let us now apply JWT to the current War on Drugs being practiced in ernest.  Is it morally justifiable to use aggression, via legislation, against drug users?  Many proponents of reform suggest that treating drug users as criminals is not morally justifiable.  Instead of using the power of the State to put these people in prison, the proper response is to shift the focus of State intervention to treatment.  In many countries in Europe, the State has taken the treatment approach with amazing results.  Ad bellum proportionality requires the aggression to be proportional to the harms caused to society.  The success of these programs calls into question the ad bellum proportionality of sending people to prison for long sentences, depriving their families of their support and causing a generational punishment.  It was the philosopher John Locke that sought to limit our “right to punish” because humans naturally tend to underestimate the injuries they cause others and to overestimate the injuries others cause to them.

As the War on Drugs progressed, it became apparent that it was having a disparate effect on poor communities and communities of color. The racist impact of the laws create a problem for Just War Theorists.  It was Thomas Aquinas who said that, “It may happen that a war is declared for a just cause… and yet be rendered unlawful through a wicked intention.” see his Summa Theologica I, questions 18-21; for Aquinus on war, see ST II, question 40.  Many have concluded that the justice of the aggression was diminished or nullified by the racist ulterior motives.  Putting more African-American men in prison than were ever held is slavery violates the ad bellum rule of right intention.  The War on Drugs was also a war conducted not in the eyes of the public, but in the secretive world of prosecutorial discretion. The motives of local officials are not divorced from the passions of the community, nor are the subject to the oversight of the legislature. Instead, the ad bellum rule of right authority is called into question because of how we allowed the War on Drugs to be prosecuted.

According to traditional JWT, resorting to aggression is justified if and only if all conditions supporting the action are present.  If even one of these requirements are not met, the actions of the aggressor (in this case the government) are not morally permissible.  I think that strong arguments exist that would make prosecution of the War on Drugs wrong.  Apologists for the War on Drugs appeal to the morally important ends at stake – protecting our children from addiction and our communities from violence. But these arguments are undermined at every turn by not only the failure of the War on Drugs but by the failure to justify the continuation of the failed policies when clear alternative exist.

Having raised significant questions about the jus ad bellum justification for the War on Drugs, let us now turn to the method in which the “war” was being and is being prosecuted, to wit the jus in bello analysis.  Just as it is incumbent upon aggressors to weigh the costs and benefits of aggressing in the first place, they must also take care to ensure that their actions within the War on Drugs are proportionate.  Thus, are their beneficial consequences of aggression outweighed by the known and quantifiable harms.  Judges have to ask if weakening the Constitution to make prosecution of drug crimes easier is outweighed by the detrimental effects to our society.  Police officers have to ask if holding prosecutions over an addicts head so as to send that person into dangerous situations for more arrests is ethical. Prosecutors have to ask if making more arrests and sending people to prison for longer and longer sentences benefits the communities they are ethically bound to serve and protect.  Legislators must ask if the endless parade of mandatory drug sentences is serving to make our society better.  The “war” of a criminal trial has clearly delineated boundaries.  As a criminal defense attorney, the moral justification for punishment is met only when I provide a vigorous defense within the rules of the game.  If I fail to provide a proper defense or if I am prevented from making beneficial arguments on my client’s behalf, the “war” becomes unfair and the impact of the laws disproportionate.

The second in bello rule of aggression requires that agents of aggression must discriminate between legitimate and illegitimate targets. They are bound to distinguish between the innocent and those deserving of punishment. The entirety of the requirement of discrimination is reliant upon a good faith execution of the aggression based on solid information.  Is it not true that the War on Drugs has been a campaign fueled by misinformation, fear and undertones of racist memes?  Is it not also true that the continued targeting of Americans is supported by the desire for local law enforcement agencies to co-opt tons and tons of money? If there exists a financial incentive to target people for arrest, then no argument exists that the aggression is discriminate.

This article has attempted to set forth the reasons that the War on Drugs is not justified according to the Just War Theory.  Both the jus ad bellum and jus in bellum theories have been explored and found wanting.

Ohio Medical Marijuana Timeline

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handcuffsWe finally have a timeline for implementation of the Ohio Medical Marijuana plan.  It was just released and here is what we know so far.

Timeline

  • May 26, 2016
    • House Bill 523 Passage
  • September 6, 2016:
    • Effective Date of Bill
    • Affirmative Defense Begins
  • October 6, 2016
    • Appointment of Advisory Committee
  • November 6, 2016
    • Advisory Committee First Meeting
  • May 4, 2017
    • Dept. of Commerce Establishes Rules and Standards for Cultivation
  • September 6, 2017:
    • Dept. of Commerce Establishes Rules and Standards for Processing and Labs
    • Board of Pharmacy Establishes Rules and Standards for Dispensaries and Registration ID Cards
  • September 6, 2018
    • Ohio Medical Marijuana Program Fully Implemented
Take note of the date that you will be allowed to assert an affirmative defense based on the provisions of the act – September 6, 2016.  Full implementation will not take place until September 6, 2018.  We have yet to hear how local courts will treat people who are found to be driving under the influence of marijuana, but you can expect a crackdown.  Why? Because Ohio law enforcement will pick favorable courts to implement laws restricting the ability to drive after consumption. Currently, Ohio law says that driving with a metabolite of marijuana is driving under the influence of drugs (DUID).  If this does not change, a person could conceivably consume legal marijuana and have possibly illegal metabolite in their body for weeks.  
If you have a question about the marijuana laws or the implementation of the current law, please do not hesitate to contact Charles M. Rowland II, DaytonDUI at (937) 318-1384.

Drugged Driving: What Does The State Have To Prove

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You are getting older. So you are prescribed DrugX by your physician.  You take DrugX responsibly, but a police officer stops you and because you exhibit some evidence of impairments (bloodshot eyes or constricted pupils..). The officer arrests you for OVI and the prosecutor allows the officer to testify as to the effects of DrugX.  With the “expert” testimony of the officer a jury finds you guilty. Is the officer’s opinion enough, or must the State prove that the impaired driving was caused by DrugX?

In State v. Hammond, an officer was using the latest tool given to Ohio law enforcement officers – ARIDE (Advanced Roadside Impaired Driving Enforcement).  It is being used to augment an officer’s observations in standardized field sobriety tests to prove impairment by a variety of prescription and illicit drugs. Here, “a relatively inexperienced state trooper testified affirmatively to leading questions on redirect examination that Hammond’s consumption of prescription drugs impaired his ability to operate a motor vehicle to a noticeable degree.” A urine test revealed the presence of N-Desmethyldiazepam, Oxazepam, and Temazepam in the 70 year-old defendant. The Defendant’s wife testified he takes medications for blood pressure, cholesterol, sleep and pain. She further testified he had been taking those medications for 15 years, and they did not impair his driving. She explained he suffered two strokes, he has degenerative disc disease, he has an artificial ankle, and he walks with a cane.

A bench trial was held before a judge. Without proving a nexus between the drug and the impairment, all the court heard were the officer’s conclusory and definitive opinion that the old man was impaired.  Amazingly, the judge found the Defendant guilty.  Upon appeal, the court reversed holding that the prosecution must prove a nexus between the drug(s) ingested and the impaired driving ability. The court commented the prosecution could prove that nexus with either expert testimony regarding the potential side effects of the medication or testimony from a non-expert regarding the side effects of that particular medication on that particular defendant.

We conclude the state failed to establish the required nexus between Hammond’s impaired condition and the prescription medications he took. We sustain Hammond’s first assignment of error, reverse the judgment of the trial court, and remand the cause to the trial court to vacate her OMVI conviction and sentence.

The prosecution did not introduce either type of evidence in this case. The officer was not an expert: he was not qualified to testify regarding the side effects of N-Desmethyldiazepam, Oxazepam, and Temazepam. The officer also did not have personal knowledge of how those medications effect Hammond. Without such testimony, the prosecution failed to prove the requisite nexus between the drug(s) ingested and Hammond’s impaired driving ability. Therefore, the evidence was insufficient to prove Hammond’s guilt, so the conviction was overturned.

My takeaway from this case is that ARIDE is faulty and dangerous. If this man can be found guilty based on nothing more than an inexperienced officer’s opinion, none of us are safe from a false conviction. Drugged driving is dangerous, but a better solution must exist than allowing police to target anyone, and anytime for arrest.

 

Drugged Driving Defense Requires Experience

00Alcohol & Drug Treatment, DUI, Drugs & DrivingTags: , , ,

driving under the influence of drugsDriving under the influence of drugs is the next generation of OVI (operating a vehicle impaired) enforcement in Ohio. It has become a priority of the Ohio State Highway Patrol.  Here are some studies suggesting why they are focusing on this issue.

According to the 2012 National Survey on Drug Use and Health (NSDUH), an estimated 10.3 million people aged 12 or older (or 3.9 percent of adolescents and adults) reported driving under the influence of drugs during the year prior to being surveyed. This was higher than the rate in 2011 (3.7percent) and lower than the rate in 2002 (4.7 percent). By comparison, in 2012, an estimated 29.1 million persons (11.2 percent) reported driving under the influence of alcohol at least once in the past year. (This percentage has dropped since 2002, when it was 14.2 percent.) According to the National Highway Traffic Safety Administration’s (NHTSA) 2007 National Roadside Survey, more than 16 percent of weekend, nighttime drivers tested positive for illegal, prescription, or over-the-counter drugs. More than 11 percent tested positive for illicit drugs.  According to NSDUH data, men are more likely than women to drive under the influence of drugs or alcohol. And young adults aged 18 to 25 are more likely to drive after taking drugs than other age groups.  One NHTSA study found that in 2009, 18 percent of fatally injured drivers tested positive for at least one illicit, prescription, or over-the-counter drug (an increase from 13 percent in 2005).

Law enforcement from across Ohio has received specialized training via the state’s Drug Recognition Expert (DRE) course. Officers participate in an intensive three-week course. The first two phases of the course are held locally, and the third phase takes place at the Maricopa County Jail in Arizona. This facility processes an average of 900 inmates per day and will provide officers the opportunity to conduct hands-on drug evaluations for all seven drug categories. “I am pleased this training is being offered to our law enforcement partners,” said Ohio Office of Criminal Justice Services (OCJS) Executive Director Karhlton Moore. “This will be an invaluable resource in our fight to curb impaired driving, as well as focus on emerging issues such as the prescription drug epidemic currently affecting so many communities across Ohio.”

I have been critical of this approach because it reinforces the mistaken belief by many in the law enforcement community that you can arrest your way out of a drug epidemic.  It funnels resources away from programs designed to help people and into programs to lock people away.  It should be no surprise to anyone that law enforcement likes this new tool.  As the old saying goes, if the only tool you have is a hammer; every problem is a nail. Law enforcement officers will use this tool to do what they are designed to do and that is make arrests.  It is up to us to question whether society is benefited by making more criminals than more recovered addicts.

I have taken courses in the Drug Recognition Expert Protocol and have studied the material relied on by DREs in making arrest decisions.  I am one of the only DUI attorneys in Ohio that has received this training and I am in a great position to help you if you are charged with a drugged driving charge. Call me at (937) 318-1384 or 888-ROWLAND (888-769-5263).

Ohio House Passes Medical Marijuana Bill

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For years, I have dedicated myself to ending the mistaken “War on Drugs” and treating addiction like a medical condition and not a crime. Today was a day I thought I would never see. The Ohio House of Representative passed a medical marijuana bill with support from both parties. This will give Ohio families much needed access to a medicine that has proven effective in other states.