One Night in November, Part 4: Because I (Allegedly) Got High

What happens if Driver and Pedestrian both had positive drug tests after the accident?  A whole lot of discovery and motion practice.

There were trace findings of marijuana in the post accident blood samples.

  • The findings in the post accident blood sample.

Nevada Highway Patrol responded to this accident.  NHP’s report stated “[w]hile troopers on scene that spoke with [Driver] did not detect any signs of impairment, the blood results showed [Driver] had levels of THC (6.8 ng/mL) and the marijuana metabolite (59.9 ng/mL) above the legal limits.”  The investigating officer “did not find [Driver] at fault for the crash nor to be the proximate cause of [Pedestrian]’s death….”

NHP also received the results of testing from [Pedestrian]’s post-mortem blood draw.  “The peripheral blood samples contain 11-Hydroxy Delta-9 THC at a level of 1.0 ng/mL, Delta-9 Carboxy RHC at a level of 18 ng/mL, and Delta-9 THC at a level of 4.3 ng/ML.”

  • Witnesses who interacted with Driver detected no signs of impairment.

Numerous witnesses were deposed who interacted with Driver before and after the accident.  None detected any signs of impairment.  For instance, a NHP trooper interacted with Driver but detected no signs of impairment, or else he would have pursued a criminal investigation.

12         Q.    Sir, you have invasive DUI impairment
13   detection —
14          A.    Yes.
15          Q.    — training?
16          A.    Yes.
17          Q.    If you had detected impairment during your
18   actions with [Driver], what would you have done?
19          A.    A field sobriety test.
20          Q.    Walk me through it.  What’s a field
21   sobriety test?
22          A.    The horizontal gaze nystagmus, walk and
23   turn, and the one-leg stand.
24          Q.    Can you estimate how much time you spent
25   with [Driver] at the scene?
1          A.    No.  I couldn’t give you a fair answer.
2          Q.    At any point during your interactions with
3   [Driver] at the scene, or back when you did the blood
4   draw, did you have any reason to suspect that he was
5   impaired in any way?
6                MS. [Opposing Counsel]:  Object to form.

20                THE WITNESS:  No.

Driver’s direct supervisor that night was deposed and also testified he had no reason to suspect Driver may have been using marijuana that night. Company Risk & Claim Director was present during a post accident interview with Driver, discussed in the first post.  Director had prior experience as a risk manager for transportation companies where he administered drug and alcohol programs based upon training he received from a federal agency.  This included acute impairment detection training.  He too saw no signs of impairment.

18          Q.    When you were with [Driver] on that morning
19   and observing the interview, were you doing any type of
20   inspection of him, or were you looking to see if he had
21   any signs of being intoxicated or in any way
22   inebriated?
23          A.    Well, I would say this:  Based on my
24   background in transportation — and I used to be a drug
25   and alcohol program manager trained through
1   [a federal agency] — it’s just automatic that I
2   would have observed any behaviors.
3          Q.    Did you look or did you attempt to observe
4   any behaviors of [Driver] that morning?
5          A.    I did.
6          Q.    And when you say “observe any behaviors,”
7   what were you looking for?
8          A.    His response time; how he answered
9   questions; was he slurred speech; did he have a swag
10   walk.  You know, was he — did he have bloodshot eyes,
11   dilated pupils, those type of things.
12          Q.    And did you see any of those?
13          A.    I did not.

There were no witnesses who testified they saw signs that they believe evidenced impairment.

  • The parties’ toxicologists offered no opinion about impairment.

The parties mutually disclosed toxicologists as initial expert witnesses.  Driver’s toxicologist concluded there is not yet a scientifically reliable methodology that would permit an analysis of whether the toxicological test results indicated Driver was impaired due to marijuana when the accident happened.  If there is not a reliable methodology to assess whether Driver was impaired, then the same analysis applies to whether Pedestrian was impaired.

Pedestrian’s toxicologist concluded only that it was likely Driver’s testimony about his last marijuana usage was inaccurate.  He discussed the effects of THC, but never stated an opinion that Driver was impaired when the accident occurred.  He confirmed this opinion, twice, at his deposition.

23 Q In your report, your only opinion is that it is
24 certainly more likely than not that the concentration
25 found in [Driver]’s post-accident blood draw would not
1 remain after 12 days of abstinence from smoking; is that
2 correct?
3 A Yes, sir.
4 Q Your initial report contains no opinion
5 indicating that [Driver] was impaired while he was
6 driving the Escalade, correct?
7 A No, I was not —
8 MS. [Opposing Counsel]: Object to form.
9 THE WITNESS: Excuse me, I’m sorry. I was not
10 asked to address that.
12 Q Were you asked to address [Pedestrian]’s own
13 post mortem blood draw and the toxicological findings
14 from that blood draw?
15 A No, sir, I was not.

22 The scope of your first report was to evaluate
23 whether [Driver]’s testimony about smoking, last smoking
24 12 days before the accident was consistent with the
25 findings in the post-accident blood draw?
1 A Yes, sir, that is correct.
2 Q The December 19 single page addendum you have,
3 what was the general purpose of preparing that?
4 A I was asked to address two issues. One, is
5 there any correlation between traffic crashes and the
6 presence of THC, and to address the appropriateness and
7 accuracy of using the two models of estimating last time
8 since smoking from a THC and carboxy THC blood levels.

12 Q [Sir], you have no opinion as stated in
13 your original report that [Driver] was impaired when this
14 accident occurred, correct?
15 MS. [Opposing Counsel]: Object to form.
16 THE WITNESS: I did not address that issue in
17 the original report.
19 Q And that was because you weren’t asked to,
20 correct?
21 A That’s right.

Plaintiff’s toxicologist later agreed with Driver’s toxicologist that a scientifically reliable methodology has not yet been developed to assess marijuana impairment.

7 Q And even with all the information you have,
8 it’s not possible to pinpoint exactly how this affected
9 [Driver] at exactly that time because the literature
10 doesn’t give us those exact answers and you don’t know
11 the exact levels he had at the moment, we can only come
12 to probability conclusions; is that correct?
13 A Yes, I think that’s fair. There is not a
14 direct correlation between THC concentration and
15 behavior, but we know that THC effects lasts anywhere
16 from two to six hours. It can still have effects even
17 though the blood is fairly low because it’s stored in
18 the brain, and we also know that in the occasional
19 smoker, they would have been much higher three hours
20 earlier, so I think if this were an occasional smoker,
21 there is an extreme likelihood of impairment at the time
22 of the incident. If it’s a chronic smoker, that’s not
23 quite as clear.

3 Q [Sir], in cases like this, is it
4 possible for experts to say exactly how someone was
5 affected by marijuana at this exact time, is there
6 literature out there to support it?
7 MR. LOWRY: Objection, speculation. Go ahead.

Was the marijuana evidence was admissible?

All of this discovery led to a motion in limine arguing the evidence and testimony was all inadmissible.

  • The evidence was not sufficient to establish impairment.

The Supreme Court of Nevada has twice addressed this topic in the context of alcohol impairment.  FGA, Inc. v. Giglio was a slip and fall in a restaurant.  It was established that the plaintiff and her witness had been drinking in the restaurant before she fell, but there was apparently conflicting testimony, as to the quantity of alcohol consumed.[1]   The district court excluded that evidence from trial.

On appeal the Supreme Court partially reversed.  “Evidence of a party’s possible intoxication may be probative of the issues of causation and comparative negligence.”[2] However, evidence of possible intoxication “should not be admitted if there is no support for finding a causal link between the alleged impairment and the injury.”[3]  But “evidence of intoxication is also relevant to a person’s ability to perceive and, thus, may be admissible to attack a witness on [his or] her ability to perceive and remember.”[4]

As to the plaintiff’s intoxication, Giglio concluded it was not necessarily an abuse of discretion to exclude the evidence.  The restaurant “offered testimony that one witness who interacted with Giglio observed that he smelled alcohol on her breath and that she had slurred speech.”[5]  The plaintiff’s key witness “testified that Giglio had two beers within 45 minutes of the fall.”[6]  Despite that, the accident report that was completed did not reference any signs of intoxication, nor did “the medical records from when Giglio was taken to the hospital after the fall.”[7]  The district court concluded insufficient evidence of intoxication was presented to admit the evidence and the Supreme Court affirmed.

Yet the Supreme Court reversed as to the witness.  It concluded his “alcohol consumption is relevant to his ability to perceive whether there was a foreign substance on the floor. Additionally, we can see no prejudice that would result from allowing evidence that a man of legal drinking age had consumed alcohol.”[8]

A similar topic arose in Las Vegas Metro. Police Dep’t v. Yeghiazarian, which concerned Yeghiazarian’s death from a car accident.[9]  At trial, Metro wanted to admit evidence of Yeghiazarian’s blood alcohol content at the time of the accident, which was 0.049%.[10]  The Supreme Court concluded the district court had correctly excluded that evidence.  “[A]dmission of a person’s BAC requires additional evidence suggesting intoxication from either a percipient witness or an expert who can testify regarding that person’s commensurate level of impairment.”[11]  Admitting evidence of Yeghiazarian’s “BAC on its own would have required the jury to speculate as to its effects on [his] reaction time and judgment at the time of the accident. Thus, [his] BAC alone reflects the fact that he consumed alcohol but does not establish his level of intoxication or impairment at the time of the accident.”[12]  As there no other evidence was presented suggesting Yeghiazarian was intoxicated when the accident occurred, the district court was correct to exclude the BAC results.[13]

I argued the analysis from Yeghiazarian and Giglio applied here, for both marijuana test results.  Admitting evidence of the results for Pedestrian or Driver would establish that they consumed marijuana at some point, but not that either was impaired when the accident occurred.  The jury would have been required to speculate as to how marijuana might have affected their reaction times and judgment when the accident occurred.

Admittedly, Giglio did conclude evidence that a witness consumed alcohol was relevant to perception, but did not explain how that analysis did not then make the evidence that the plaintiff consumed alcohol also relevant to her perception.  Presumably a plaintiff’s ability to perceive is just as important as a witness.  But I argued if Giglio’s exception applies only to witnesses, then the exception cannot apply here because the evidence concerned the parties themselves.

  • Evidence of marijuana usage to imply impairment was unfairly prejudicial.

Although Giglio saw “no prejudice that would result from allowing evidence that a man of legal drinking age had consumed alcohol,”[14] the same is not true of marijuana.  Although Nevada voters subsequently legalized recreational marijuana, it was an illegal substance when the accident happened.  I was able to locate a federal decision from Arizona that was at least on topic.

Celaya v. Hankook Tire Am. Corp. alleged a defective tire caused an accident in which the driver died.[15]  A post-mortem blood sample found the driver’s “blood contained traces of the sedative alprazolam, pain medications oxycodone and hydrocodone, and remnants of marijuana.”  The driver’s estate moved to exclude that evidence from trial.  The district court excluded the defendant’s expert who concluded the driver was intoxicated when the accident occurred.  It then evaluated whether the post-mortem blood sample results should be admitted at all and excluded them.

Arizona law “holds that anyone who is under the influence of any drug and is ‘impaired to the slightest degree’ may not drive a vehicle.”[16]  Another statute held “anyone with various drugs, including THC and its metabolites, in his or her system may not drive a vehicle regardless of impairment.”[17] These statutes did not create a legal presumption of impairment “solely because he had THC in his system.”  Based upon this, the evidence was excluded because its “limited probative value is countered by the high likelihood that evidence of an illegal drug would cause the jury to decide the case based on unfair prejudices rather than the evidence presented.”

Nevada law is substantively similar.  NRS 484C.110(2)(a) makes it unlawful for a person to operate a motor vehicle who is “under the influence of a controlled substance.”  Alternatively, NRS 484C.110(3) makes it unlawful for anyone to operate a motor vehicle with certain amounts of chemicals in their system, regardless of actual impairment.  Neither statute creates a legal presumption of impairment solely because of a post-accident blood draw.  Given these similarities, I argued the Arizona court’s decision to exclude evidence of marijuana usage because its “limited probative value is countered by the high likelihood that evidence of an illegal drug would cause the jury to decide the case based on unfair prejudices rather than the evidence presented” was strongly persuasive.

  • What happened?

The case settled, but this would have been a fun issue to argue.

[1] 128 Nev. 271, 276, 278 P.3d 490, 493 (2012).
[2] Id. at 285, 278 P.3d. at 499.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id. at 285-86, 278 P.3d at 499.
[9] 129 Nev. Adv. Op. 81, 312 P.3d 503 (2013).
[10] Id. at 506.
[11] Id. at 505.
[12] Id. at 507.
[13] Id.
[14] Id. at 285-86, 278 P.3d at 499.
[15] No. CV-11-00429, 2016 U.S. Dist. LEXIS 192856 (D. Ariz. Mar. 29, 2016).
[16] Id. (citing ARS 28-1381(A)(1)).
[17] Id. (citing ARS 28-1381(A)(3)).