Driving While Addicted to a Drug
by Matt De Moura Yolo County deputy district attorney. Reprinted with permission of the author.
The United States finds itself in the middle of what has been deemed by the New York Times as the worst drug crisis in America's history.1 Part of this drug crisis has been playing out on the roadways. Statistics show that more people have reported driving under the influence of a drug and more are testing positive for drugs.
Americans are driving more miles than ever before.2 At the same time, the number of people using and abusing drugs is at its highest levels. In 2017,
21.4 million people of driving age drove under the influence of alcohol, while another 12.8 million drove under the influence of illicit drugs.3 According to the 2017 National Survey on Drug Use and Health, approximately 19.7 million people aged 12 and older had a substance use disorder, with 7.5 million specifically having an illicit drug use disorder.4
While these numbers are staggering, beyond them lies a hidden danger and less talked about consequence of the drug crisis: drug-addicted driving. These are people not necessarily impaired by a drug at the time of driving, but rather struggling with their addiction at the time they drive. This group includes those addicted to everything from prescription narcotics to illegal street drugs, and they pose a significant and unique risk to other drivers given their chemical dependence and minimal ability to safely operate a vehicle in the absence of a drug. California specifically recognizes this problem and prohibits drug addicts from driving.
For example, on October 15, 2015, Edward Kamakeeaina, Jr., a long-term methamphetamine user, was driving slowly through West Sacramento when Yolo County Sheriff's Deputy Gary Hallenbeck pulled him over for not having a front license plate. Hallenbeck noticed that Kamakeeaina's pupils were unusually constricted for the time of day (midnight) so he conducted a seven-step drug evaluation. The evaluation confirmed what Hallenbeck suspected: Kamakeeaina was under the influence of a controlled substance.
Kamakeeaina told Deputy Hallenbeck that he had used methamphetamine for 15 years and used it every day to every other day; he had quit three times before and went to rehab; he started using again because he has to work a lot; and he feels tired when not using meth. When asked, he said his meth use is an addiction. Kamakeeaina was convicted by a jury of driving while addicted to a drug.5
As a major point of entry for drugs, coupled with lax drug laws, the problem may be bigger in California than anyone truly knows. To put addiction in California in perspective, in San Francisco, there are more drug addicts than high school students.6 While that statistic does not look at the number of addicts driving, it goes to show just how widespread addiction is, thus increasing the potential of drug-addicted driving. During a time where there has been a significant shift in the last few years from prosecution of addicts for their crimes to treatment and rehabilitation, there is still a concern about drug usage, addiction, and public safety.
Users of alcoholic beverages may drive unless they are under the influence or have a prohibited blood-alcohol level at the time, but drug addicts cannot drive at all.7 Through Vehicle Code section 23152(c), the Legislature and courts have strongly stated that drug addicts are dangerous, and public safety trumps their privilege to drive.8
The Case of Stuart Marston
On December 31, 2014, Stuart Marston drove through a DUI checkpoint in Woodland. Yolo County Sheriff's Sergeant Sam Machado, a certified Drug Recognition Expert (DRE), contacted
Marston when he entered the checkpoint and observed that he had red and watery eyes, retracted eyelids, dilated pupils, and rapid speech. Marston also appeared extremely nervous. Machado took Marston to a nearby trailer to conduct an evaluation of whether Marston was under the influence. Machado observed that Marston's pulse was elevated at 132 and 112 beats per minute (BPM), his pupils were 5.5 millimeters in room light, and his blood pressure was 170/86.
During a DRE examination, Machado observed that Marston had rapid speech and movements, was fidgety, had a "sucked up" face, bad breath, was grinding his teeth, and had poor dental hygiene. Observed signs of ingestion included raised and inflamed taste buds on the rear portion of the tongue and a number of track marks on his arms and hands.
During an interview, Marston stated that he began using methamphetamine when he was 15 years old. He had been prescribed several medications as a teenager for ADHD, but said he thought meth was better for him. He stated that he had been using methamphetamine daily for years with intermittent times of sobriety, but that he has had to up his dosage over the years in order to obtain the same desired effects. He told Machado he was using two-tenths of a gram at a time and that the amount will keep him high for approximately eight hours. Due to some personal reasons, he was trying to cut back to two-to-three times a week. Marston said that he smokes and injects methamphetamine. He explained that when he injects meth, it is a "calmer high" than when he smokes it. Marston added that when he smokes, "It hits me hard and all at once," and that he gets super jittery and wants to "Go, go, go." He further explained that when he injects, he is not so jittery, and it is easier to control himself. He said that using meth made him feel normal, but when he was off the drug, he would feel down and depressed. Marston's dental hygiene had been impacted by his meth use such that he has several decaying teeth and other dental issues. As a result, Marston said that he has been proscribed Norcos for his mouth/teeth pain but continues to use methamphetamine despite its physical harm.
Based on the totality of the circumstances, Machado did not believe that Marston was driving under the influence of a drug, but was driving while addicted to a drug. A jury agreed and convicted Marston.9
The Crime of Driving While a Drug Addict
Under Vehicle Code section 23152(c), "It is unlawful for a person who is addicted to the use of any drug to drive a vehicle." A drug is defined as
any substance or combination of substances, other than alcohol, which could so affect the central nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a motor vehicle in the manner that an ordinary prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.1101
For purposes of this section, it does not matter whether the drug is prescribed (e.g., some opiates) or illegal (e.g., methamphetamine).
The California Supreme Court in People v. O'Neil analyzed the legislative intent of the statute. Section 23152(c), formerly section 23105, was "designed to prohibit the use of the highway to classes of persons whose perception, judgment, and reaction time may be adversely affected due to their use of drugs."11
What Is "Addiction"?
In O'Neil, the defendant was a disabled war veteran who suffered from rheumatoid arthritis. A narcotics officer stopped him on his way home from getting a prescription filled. The defendant showed the officer a large vial of pills. The officer observed old and new needle marks on the defendant's arm, so he arrested the defendant for a violation of section 23105. A doctor saw the defendant and opined that he was in the early stages of withdrawal. The defendant stated that he had been using morphine intravenously for a year-and-a-half and more recently had been taking four to six dolophine tablets a day. The defendant was not under the influence of any drugs at the time of his arrest.
The O'Neil court analyzed when a person is "addicted" for purposes of reaching the point where he or she should not be driving. The question before the court was "at what point in the addictive process the individual exhibits characteristics which could operate to impair his driving ability."12 For the court, this required an analysis of the factors set forth in People v. Victor, namely:
[N]arcotics addiction is not so much an event as a process. ... Among the identifiable stages in this process may be listed the following:
(1) introduction to and initial experimentation with the drug; (2) 'joy popping' or occasional use to satisfy personal gratification or social pressures;
(3) increasingly frequent use coincident with development of a growing degree of emotional dependence on the drug; (4) bodily reaction to such use by development of increasingly physical tolerance; (5) temporary cessation (whether voluntary or not) of use of the drug, resulting in manifestation of physical dependence in the form of withdrawal symptoms; (6) realization by the user of the fact that it was his failure to maintain his intake of the drug that caused the withdrawal distress; (7) continuing use of the drug thereafter for the conscious and primary purpose of forestalling or alleviating withdrawal distress; and (8) concomitant side-effects, such as tendency towards lowering of the user's anxiety threshold so that normal (non-addict) instances or nervousness or discomfort become misinterpreted as signs of an impending withdrawal experience and hence increase even further the user's recourse to and dependence on the drug.1131
The O'Neil court focused on when a person becomes physically dependent on a drug and when that person begins to experience and display "abstinence syndrome" and when those symptoms reach their "peak." The court stated, after the withdrawal symptoms reach their peak through things such as vomiting, diarrhea, and fever, "the individual continues his drug intake not so much to achieve a sense of euphoria as to avoid the painful withdrawal symptoms. It is also at this state that the individual, realizing he is physically dependent upon the drug, becomes cognizant of the fact that he is 'addicted.'"14
It is here that we get the elements of driving while addicted.
To prove that an individual is driving while addicted to a drug in violation of section 23152(c), the prosecution must show:
1.      [You have] become physically dependent on the drug, suffering withdrawal symptoms if [you are] deprived of it;
2.      [You have] developed a tolerance to the drug's effects and therefore [require] larger and more potent doses; and
3.      [You have] become emotionally dependent on the drug, experiencing a compulsive need to continue its use.[15>
In other words, as the O'Neil court stated, "[W]hen an individual has reached the point that his body reacts physically to the termination of drug administration, he has become 'addicted.'"16 It is important to note that section 23152(c) does not require a person to be impaired by a drug to be convicted. In the cases of Kamakeeaina and Marston, neither was determined to be violating section 23152(e). The significance of not requiring an "under the influence" element is that the law recognizes that someone who is addicted to drugs poses a continuous and long-term risk to the motoring public in a similar manner as someone who is immediately under the influence.
The National Institute of Drug Abuse (NIDA) defines addiction as, "a chronic disease characterized by drug seeking and use that is compulsive, or difficult to control, despite harmful consequences."17 While this is not the legal definition, it is nevertheless important to know because it provides a greater explanation of how and why addicts continue to use drugs despite the harm. Drug usage rewires a person's brain and continued usage to the point of addiction can lead to behavioral and psychological changes in that person.18 In other words, it is an unhealthy obsession with a drug where the individual cannot function without it. Addiction is often confused with misuse of a drug.19 Misuse is the "incorrect, excessive, or non-therapeutic use of body- and mind-altering substances."20 Once a person is no longer able to moderate or cease intake of the substance, he or she is addicted.21
For example, a person who uses cocaine at a party is misusing the drug but is not necessarily addicted to it. If that same person must use cocaine to start the day and cannot function without it, that person has reached the point of addiction. When the drug becomes a means to function and operate on a daily basis, a user has reached the point of addiction. A simple way to look at addiction is the continued use of a drug despite the harm. Machado noted that Marston continued to use methamphetamine despite harmful consequences. This is crucial because it begs the question of why someone would continue to use a substance that does such harmful things to him or her. The short answer is because that person is an addict.
Physical Dependence and Withdrawal
As discussed above, drug addiction creates hazards on the road that are akin to actually being under the influence of the drug itself. DREs will tell you that going through withdrawal due to addiction is as dangerous as someone actively under the influence. The O'Neil court recognized this when it noted that addicts will start using again not to get the euphoric effects from the drug, but rather to avoid the "abstinence syndrome or withdrawal illness."22 For example, if a person with a heroin addiction goes through withdrawals, he or she will have symptoms akin to a bad case of the flu.23 As such, he or she is physically dependent on the drug. An addiction that creates symptoms such as flu-like ones can be debilitating both physically and mentally making a person extremely unsafe to drive. For Kamakeeaina, withdrawal from methamphetamine made him tired; thus, he was physically dependent on it to be able to work.
This is the case for Christopher Ludlow, a 21-year-old heroin addict. On May 31, 2013, Officer Kim Walker with the Davis Police Department was dispatched to a local gas station for a report on a subject who appeared to be passed out behind the wheel of a car. The reporting party stated that the driver appeared to have injected an unknown substance and was in and out of consciousness. When she and her partner arrived on the scene, they found two subjects passed out on the car surrounded by drug paraphernalia including hypodermic needles. Based on the totality of the circumstances, it appeared that the suspect was addicted to drugs and the driver was arrested for driving while addicted to heroin.
During a DRE exam, California Highway Patrol Officer Travis Herbert observed old puncture marks on Ludlow's left arm along the radius just below the wrist. On his right arm, there were tattoos covering a majority of the arm and what Ludlow claimed were old puncture marks. There were fresh puncture marks on his left foot midway between his pinky toe and ankle. Ludlow said he had been using opiates since he was 16 and first started by using OxyContin® recreationally. He switched to heroin because the high was better. He was trying to quit and used Suboxone® for several months twice a day. However, he had not taken any on this date. At the hospital.
the driver consented to a blood draw, but he had no usable veins in his body for nurses to obtain a blood sample. As a result, a doctor had to draw blood out of the driver's femoral artery. While this is typically a painful process, the driver was relaxed by the use of the needle.
In this case, the driver was under the influence of a drug, but it was not until after he stopped driving. Based on Walker's observations, there was such an extreme level of physical dependence on the drug that Ludlow could not even make it home before he had to inject.
In investigating a subject for driving while addicted, an officer should look for physical symptoms of dependence such as excessive track marks, abscesses, lack of usable veins, and other physical signs of usage that appear harmful. By being able to show longÂterm continued use despite outward harm to the body, one will be able to prove physical dependence. In addition, an officer should look for physical withdrawal symptoms such as the appearance of being sick. The officer should follow up with questions about how often the driver uses, as well as what happens when he or she is not using, or when he or she misses a dosage. The purpose of using drugs and how that person feels when using drugs are also relevant questions.
Tolerance
Like many things in life, repeated use can build up a tolerance to the effects. As such, the only way to experience the effects is to up the dosage and/or potency. This principle applies to drugs. Although not defined in the Vehicle Code or case law that discusses driving while addicted to a drug, "tolerance" can be defined as "the capacity of the body to endure or become less responsive to a substance (such as a drug) or a physiological insult especially with repeated use or exposure."24 Take the case of Marston, he told Machado that he had to up his dosage of methamphetamine over the years in order to obtain the same desired effects. Those desired effects made him feel normal as opposed to down and depressed. For Ludlow, he had to switch from OxyContin® to heroin for a better high. This was the more "potent dose" for him.
Questions for an officer to ask here include how much the subject was using when he or she first started taking drugs; how much is he or she using now; has he or she had to increase the dosage and, if so, why; has the method of ingestion changed; at what point does he or she feel the effects; what would happen if he or she took a lesser dosage.
Emotional Dependence
"Emotional dependence" is a belief that you cannot function without a drug. The drug has become such a central part of an individual's daily habits and routine that its absence causes fear and anxiety in that individual. For example, in sports, there is a common superstition that beards may bring good luck to a team in the playoffs. As such, teams and fans may refuse to shave out of fear that shaving will cause the team to lose. This is just one of many examples in sports where teams, players, and fans become emotionally dependent on something that they do not believe they can accomplish without it. The same analysis applies to drugs. Addicts are convinced they need the drug to function and will compulsively use without a second thought or hesitation.
As the Victor court noted, the degree of emotional dependence coincides with increasingly frequent drug use.25 The more one uses, the more one feels the need to use and vice-versa.
Officers should ask subjects if they can skip a dosage; what happens if they skip a dosage; how do they start the day; do they fear what happens if a dosage is skipped; do they do whatever it takes not to miss a dosage and, if so, why.
Defenses
Simply because someone has a drug history including use and abuse, does not necessarily rise to the level of addiction.
Section 23152(c) includes a built-in defense for someone who is "participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code" and cannot be prosecuted for driving while addicted.26
The driver must be enrolled in the program at the time of the offense; it is immaterial that someone enrolls after being arrested for this charge. Enrollment in a program should not be confused with someone who is simply being prescribed other drugs such as Suboxone® to deal with an addiction. Treatment and participation in an approved program are two different things. Take the case of Ludlow: at the time of his arrest, he was prescribed Suboxone® but was not participating in a drug treatment program. As such, he did not have a legal defense under this section.
Habitual drug users are often stereotyped as drug addicts. The courts, however, have made a clear distinction between habitual users and addicts with the former not rising to the level of the latter, thereby not meeting the legal standard required to convict under section 23152(c).27 A habitual user has the desire without compulsion, while an addict is so dependent on the drug that his or her body undergoes the "abstinence syndrome" or "withdrawal illness" on a sudden cessation, making the person a potential danger on the highway.28 In People v. Washington, the court cited O'Neil and held:
[I]n distinguishing an addict, the following characteristics of a person habituated to the use of drugs: 1) a desire (but not a compulsion) to continue taking the drug for the sense of improved well being which it engenders; 2) little or no tendency to increase the dose; 3) some degree of psychic dependence on the effect of the drug, but absence of physical dependence and hence an abstinence syndrome; and 4) detrimental effects, if any, primarily on the individual.1291
The level of dependence and need for a drug is what distinguishes a habitual user from an addict. While an addict is a habitual user, a habitual user is not an addict.
Conclusion
Physiologically, the body is designed to maintain its status quo in a healthful state. When you repeatedly introduce something from the outside (e.g., a drug), the body now has to try and maintain its status quo in the presence of that drug, which means it is now changed. The brain is also changed, and it will change again when a person stops taking that drug. This leads to addiction and an addict's desire to maintain the new status quo. Without doing so, the addict experiences severe and dramatic effects to the body. These effects make it dangerous for the person to operate a motor vehicle, much in the same way he or she would be a danger while under the influence. It is because of this threat—this danger—that drug- addicted drivers are prohibited from operating on California roads without criminal consequences. â–
ENDNOTES
1. Jessica Bruder, "The Worst Drug Crisis in American History" (Jul. 31,2018) New York Times <https://www.nytimes.com/2018/07/31/books/review/beth- macy-dopesick.html> (accessed Sep. 4,2019).
2.  David Schaper, "Record Number of Miles Driven in U.S. Last Year" (Feb. 21,2017) National Public Radio <https://www.npr.org/sections/thetwo- way/2017/02/21/516512439/record-number-of-miles-driven-in-u-s-last-year> (accessed Sep. 4,2019).
3.<https://www.drugabuse.gov/publications/drugfacts/drugged-driving> (accessed Sep. 4,2019).
4. <https://www.samhsa.gov/data/nsduh/reports-detailed-tables-2017-NSDUH> (accessed Sep. 4,2019).
5. Yolo County Superior Court No. YOSU-CRM-2015-7516-1.
6.Phil Matier, "San Francisco-where drug addicts outnumber high school students" (Jan. 30,2019) San Francisco Chronicle <https://www.sfchronicle.com/bayarea/ philmatier/article/San-Francisco-where-street-addicts-outnumber-13571702. php?psid=65Y09> (accessed Sep. 4,2019).
7.  See People v. Berner(1938) 28 Cal.App.2d 392,394.
8. People v. Lamb (1964) 230 Cal.App.2d 65,69.
9. Yolo County Superior Court No. YOSU-CRM-2015-1514-2.
10. Veh. Code §312.
11. People v. O'Neil(1965) 62 Cal.2d 748,752.
12. Id.
13. Id. at 752, fn. 4, quoting People v. Victor (1965) 62 Cal.2d 280,301-302 [emphasis in original].
14. Id. at 753.
15. CALCRIM 2112.
16. OWe/7, supra, at 753.
17. <https://www.drugabuse.gov/publications/drugfacts/understanding-drug-use- addiction> (accessed Sep. 4,2019).
18. <https://www.ihs.gov/asap/familyfriends/warningsignsdrug/> (accessed Sep. 4,2019).
19. Adam Felman, "What is addiction?" (Oct. 25,2018) Medical News Today <https://www.medicalnewstoday.com/articles/323465.php> (accessed Sep. 4,2019).
20. Id.
21. Id.
22.  OWe/7, supra, at 752.
23. <https://www.addictioncenter.com/drugs/heroin/withdrawal-detox> (accessed Sep. 4,2019).
24. <https://www.merriam-webster.com/dictionary/tolerance> (accessed Sep. 4,2019).
25.O'Neil, supra, at 752, fn. 4, quoting People v. Victor(1965) 62 Cal.2d 280.
26. CALCRIM 2112.
27. O'Neil, supra.
28. Id. at 752.
29. People v. Washington (1965)237 Cal.App.2d 59,67, citing OWe/7, supra, at 755.
PROVING UP VEHICLE CODE § 23152(c) CHECKLIST CALCRIM 2112
1. The defendant drove a vehicle; AND
2. When (he/she) drove, the defendant was addicted to a drug.
A drug is a substance or combination of substances, other than alcohol, that so could affect the nervous system, brain, or muscles of a person that it would appreciably impair his or her ability to drive as an ordinary cautious person, in full possession of his or her faculties and using reasonable care, would drive under similar circumstances.
A person is addicted to a drug if he or she:
1. Has become physically dependent on the drug, suffering withdrawal symptoms if he or she is deprived of it;
2. Has developed a tolerance to the drug's effects and therefore requires larger and more potent doses; AND
3. Has become emotionally dependent on the drug, experiencing a compulsive need to continue its use.
[It is not a defense that the defendant was legally entitled to use the drug.]
Most Common Drug Categories
1.  Central nervous system stimulants (e.g., methamphetamine and cocaine)
2.  Narcotic analgesic (e.g., heroin)
These are the two easiest drug categories to investigate because of how highly addictive they are and the objective signs of addiction associated with them. But most stimulants and/or opiates can qualify. Remember: Addiction is the continued use despite the harm.
Objective Signs to Document
1.  Track marks
a. Usable veins left
b.  Tattoos covering them
c.  Abscesses
d. Officer needs to know how many injection sites are within an inch of suspect's arm; how many times you can inject; how many days of use that equates to.
2.  Sunken cheeks
3. Emaciated frame
4. Dirty/disheveled
5.  Dental hygiene (i.e., how many teeth does the subject have)
6. Blisters
7. Burn marks
8. Old booking photos
9. How many Vehicle Code section 11550 arrests does the subject have?
Investigative Questions to Ask
1.  Are you addicted to X drug?
a. What happens if you don't use?
b. When were you last sick? Were you using or not using when you got sick?
2. When did you start using?
3. What was the first drug you started using?
4. When did you switch to X drug?
a. Why did you switch to this drug?
b. Why do you shoot up?
c. Has a doctor ever told you to shoot/snort/smoke?
d. Is the high better? Longer?
e. Why do you shoot versus snort?
5. How did you start ingesting X drug?
a. If the subject switched the method of ingestion, why did he or she start using this way?
b. If the subject shoots up in areas other than his/her arms, ask why.
6. How do you typically get high?
a. Shoot/snort/smoke?
7. How much do you use per day?
8. How much do you spend on drugs per day? a. Has this amount increased?
9. How much do you use each time you shoot/snort/smoke?
a. How much did you start out with?
b. Why did you start increasing the dosage?
c. What would happen if you started decreasing the amount you use/go back to what you used when you first started?
10.  Do you ever use less per day?
a. What happens if you use less/skip a dosage?
11. Have you ever gone through withdrawals?
a. When?
b. What does that feel like?
c. What happens when you are going through withdrawal?
d.  How do you cope with that?
e. What happens if you don't get your fix?
12. If the subject has abscesses, has he or she been treated for them? If so, how many times?
13. How long does your fix last?
14. Have you ever been in a treatment program?
a.  Where? When?
b.  Why?
c. How many times?
d. Did you continue to use afterwards?
e. Did you use in the treatment program?
f. Did you successfully complete the program?
g. If yes, why did you start using again?
h. If not, why did you fail? Did you continue to use? Was the inability to use making you sick? How did it make you feel?
15. How many times a day do you think about drugs/ingesting?