2015 Opinion No. 11
As Corrected July 29, 2015.
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge; Hon. Theresa Gardunia, Magistrate.
Decision of district court on intermediate appeal affirming judgment of conviction for driving under the influence of drugs, affirmed.
Alan Trimming, Ada County Public Defender; Heidi M. Johnson, Deputy Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
LANSING, Judge. Chief Judge MELANSON and Judge GUTIERREZ CONCUR.
Following a jury trial, Victoria Bea Morin was convicted of driving while under the influence of drugs. On appeal, Morin argues that the magistrate court erred by denying her motion to compel the State to produce a more detailed disclosure of anticipated expert witness testimony and by denying her motion to exclude a blood test showing the presence of carboxy-THC, an inactive metabolite of marijuana.
Morin was charged with operating a vehicle while under the influence of drugs in violation of Idaho Code § 18-8004(1)(a). Prior to trial, she filed a motion to compel a discovery response and a motion in limine to exclude evidence. In the motion to compel, Morin argued that the State had failed to provide a " written summary or report" relating to any expert witness testimony it would present at trial, as required by Idaho Criminal Rule 16(b)(7). In the motion in limine, Morin sought to exclude any test results showing the presence of carboxy-THC in Morin's blood and any testimony linking carboxy-THC and intoxication. Both of these motions were denied and the case proceeded to trial.
According to the testimony at Morin's trial, the charge arose from the following facts. Morin was parked just off of a major roadway with her hazard lights activated when another driver stopped to help. The other driver testified that Morin had slurred speech, " had a hard time logically explaining what was going on," and " didn't seem quite right." Morin asked for help getting to a gas station, but the other driver called law enforcement because she was concerned that Morin could not safely operate a vehicle.
Corporal Jayne, an Idaho State Police officer and a certified Drug Recognition Evaluator, was sent to the scene. Morin told the officer that she had been driving and had run out of gas. According to his testimony, Jayne made several observations that led him to believe that Morin was intoxicated or otherwise impaired: Morin had dilated pupils and white crust on her lips; her speech was slurred and her responses were strange and often inappropriately emotional; and, she was unable to complete simple tasks like finding her wallet. Consequently, the officer decided to administer field sobriety tests. He concluded that Morin had failed the " walk and turn" test and the " one leg stand" test. These tests indicated that she might be under
the influence of alcohol, but Jayne did not observe any abnormalities indicative of alcohol intoxication during a horizontal gaze nystagmus test. The officer therefore believed that Morin was under the influence of a substance other than alcohol. He confirmed this by administering a breath test that showed that Morin had not been consuming alcohol. The officer then asked Morin to complete additional tests to determine what category of drug Morin had used. In one test, the officer observed a " lack of convergence" of Morin's eyes. In that test, a sober person's eyes cross, i.e., they converge, as they focus on an item that the officer moves closer to the person's face. Morin's eyes did not cross. The officer also observed that Morin had significant difficulties estimating time, failed the finger-to-nose test, had eye tremors and dilated pupils, and had a " yellow-green paste" on her tongue. Finally, both Jayne and another officer detected the odor of burnt marijuana.
In addition to making these physical observations, Jayne asked Morin if she had taken any drugs, and Morin reported that she had taken several drugs, including a few prescribed psychotropic medications. She also acknowledged using marijuana, first stating that she had used it nine days earlier and then amending her description to say that she had used marijuana the prior weekend, which would have been five to seven days earlier.
Upon considering his observations and the drugs Morin had reported using, Corporal Jayne concluded that marijuana was the drug most significantly affecting Morin. He knew that a " lack of convergence" indicates intoxication by central nervous system depressants, inhalants, dissociative anesthetics, or marijuana. He believed that several of those categories could be excluded. For example, Morin did not exhibit the rigid muscle tone that is caused by dissociative anesthetics, such as PCP, and she did not display horizontal gaze nystagmus, which central nervous system depressants usually cause. After considering all of these factors, Jayne concluded that Morin was under the influence of marijuana. He obtained a blood sample in order to confirm his opinion.
The forensic scientist who analyzed the blood sample at the Idaho State Police lab explained that the lab did not look for tetrahydrocannabinol (THC), the active ingredient in marijuana, or any active metabolite of THC, because the lab equipment used was not sufficiently sensitive. The lab did find venlafaxine (a drug sold under the trade name Effexor), an active metabolite of venlafaxine, an amphetamine, and carboxy-THC. Carboxy-THC is an inactive metabolite of marijuana that has no pharmacological effects and is, therefore, not a cause of intoxication. Rather, it can ...