DUI Appeal of the Day (DAD) - Coming down from drugs, indictment variances

In United States v. Gonzales, Slip Copy, 2010 WL 5392644 (D.Ariz.), the driver was charged with DWI after admitting that she passed out or fell asleep at the wheel, having used cocaine and amphetamine/methamphetamine the night before the crash. Gonzales sought to preclude testimony from government expert witness Terrence O'Hara (“O'Hara”). O'Hara is expected to testify regarding the signs and symptoms of impairment by cocaine and methamphetamine, regarding the toxicological effects of those two drugs, that a person will come down from the use of the drugs and may pass out or fall asleep, regarding the depressant effects of the drugs on the human body, and that the behavior and driving behavior of Gonzales was consistent with someone under the influence of the substances. Gonzales asserted that O'Hara was not an expert on the topics he proposes to testify about, that O'Hara did not conduct an evaluation of Gonzales at or near the time of the Defendant's driving, and that O'Hara's testimony is irrelevant to the charges. Gonzales argued that a drug recognition expert (“DRE”) is generally dispatched to the scene of a traffic stop, at the request of another officer who is investigating a DUI, where the DRE examines the suspect for certain characteristics. The DRE will then make a determination of whether there is probable cause to arrest based on the suspected used of drugs; a suspect is then ordered to submit to a chemical test or tests which would conclusively establish the presence or drugs in the person's system. Gonzales pointed out that she was not arrested, nor did police conduct a field investigation relating to impairment. In other words, no one made an assessment of Gonzales' physical characteristics to determine if she was under the influence of alcohol or drugs at the time of driving. The defendant argued that, although O'Hara was a certified DRE, the failure to perform a DRE evaluation rendered any opinion that O'Hara may give susceptible to exclusion under Daubert. Additionally:

Gonzales argues that the experts have stated unequivocally that one cannot conclude that, because drugs or metabolites are found in an individual's system, that the individual still had some amount of drugs in her system, or that the individual was “coming down” from the drugs, or even when the individual had ingested the drugs and that there are too many variables involved to conclude with any degree of medical accuracy whether the individual was under the influence of drugs, based on the presence of drugs in their urine. This, however, is an issue to be presented and argued to a jury rather than precluding the witness; i.e., this argument goes to the weight of the evidence rather than its admissibility.


The trial court denied the defendant's attempt to bar the expert pre-trial, and instead found the issue went to weight rather than admissibility. Additionally, the defendant sought to dismiss Count 1 on the basis that the government was going to prove a different theory of guilt than that for which she was indicted:

Gonzales argues that the original indictment charged her with committing aggravated assault because she was intoxicated and under the influence of drugs (not that she was tired), thereby causing an accident which resulted in serious physical injury to the child. Gonzales argues that the government constructively amended its theory of the case, claiming that at the time of the accident, Gonzales had come down from the effect of the drugs she had previously ingested, as a result of which she became sleepy.

The law on constructive amendment states that, after an indictment has been returned, its charges may not be broadened except by the grand jury itself. Stirone v. United States, 361 U.S. 212 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887) (court cannot permit a defendant to be tried on charges that are not made in the indictment against him). A constructive amendment occurs when the terms of the indictment are effectively modified by the presentation of evidence or by actions of the court so that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment. United States v. Thomas, 274 F.3d 655, 669 (2nd Cir.2001). Further, an unconstitutional amendment of the indictment occurs when the charging terms are altered either literally or constructively, such as where the evidence offered at trial proves facts materially different from those alleged in the indictment. See e.g. United States v. Helmsley, 241 F.2d 71 (2nd Cir.1991); United States v.. Zingalo, 858 F.2d 94 (2nd Cir.1988). When a prejudicial variance, i.e., when the charging terms of the indictment are not changed but evidence offered at trial proves facts materially different from those alleged in the indictment, United States v. Frank, 156 F.3d 332 (2nd Cir.1998), dismissal is appropriate.

In denying the motion to dismiss, the appeals court reviewed the grand jury transcript, and found that Count 1 of the indictment, alleging an assault "while under the influence" did not limit government proof to the traditional element of a state-law-DWI; rather, it allowed for proof of an assault by any consequence of DWI, including the possibility of "coming down". Therefore the motion to dismiss was denied.

The case itself is interesting, as the theory of "coming down" from drugs is unique. However, from a defense standpoint, the two motions presented by the defense are valuable - if a DRE tries to opine without performing a DRE evaluation, is this evidence subject to a Daubert hearing? Secondly, if the government's theory of guilt changes post-indictment, can it be barred/dismissed under due process? I have filed motions in limine in the past, where the defendant is arrested while passed out in a car, but at trial the government argues to the jury to find the defendant guilty because he likely drove while under the influence to get there. This motion has prevailed on several occasions to prevent such an argument.


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