The driver was asleep, held a lighter in one hand and two blunt cigarettes were on the car seat. The driver responded to verbal stimuli, indicated that he was “high” and that the cigarettes “possibly” contained marijuana. He denied alcohol consumption. Law enforcement reported that the driver had bilateral horizontal and vertical nystagmus, no odor of intoxicants, and subsequently failed the Walk-and-Turn (unable to maintain heel to toe position, lost count while walking, and raised arms repeatedly) and One Leg Stand (put foot down and used hands to balance) field sobriety tests. He was arrested for operating a vehicle while intoxicated and transported to the hospital. The driver’s blood sample and the blunt cigarettes were collected and sent to a state-level ISO-17025 accredited laboratory. Plant material from the cigarettes was confirmed via gas chromatography mass spectrometry (GC-MS) to contain the synthetic cannabinoid derivative 5F-ADB.

The DUI Investigation

The DRE program has done a great job explaining the signs and symptoms of a person under the influence of cannabis. Thanks to DRE’s and the studies that they have done, we know cannabis influence will have well characterized eye findings (e.g., absence of horizontal or vertical nystagmus, the presence of lack of convergence, normal to dilated pupils, normal to slowed pupillary reaction to light, injected conjunctivae), elevated heart rate, elevated blood pressure, normal to elevated temperature, body/eyelid tremors, confusion, relaxed inhibitions, poor performance on Standardized Field Sobriety Test and the odor of marijuana. But, what is the difference between cannabis influence and synthetic cannabinoid influence?

The Journal of Forensic Science’s review listed above had this to say about the difference:

One retrospective study compared the differing effects of marijuana to synthetic cannabinoids within a population of arrested drivers and concluded there was greater impairment (e.g., confusion, disorientation, and incoherence) among those under the influence of synthetic cannabinoids, compared to those under the influence of marijuana. A review of impaired driving cases in which AB-CHMINACA and AB-PINACA were detected in drivers’ biologic samples found that clinical indicators identified by drug recognition experts differed from those classically associated with marijuana use. For example, impaired drivers were found to have the presence of horizontal and vertical nystagmus, the lack of convergence was not always present, lowered blood pressures, and infrequent presence of eyelid tremor. Louis et al examined impaired driving cases associated with the use of XLR-11 and UR-144. They noted the slurred speech, lack of convergence, and body and eyelid tremors as the most consistent findings among 12 drivers examined by drug recognition experts. However, physical signs and symptoms are not specific to synthetic cannabinoids, are highly variable, and may be caused by non-drug-related neurologic conditions.

Call the Category You See, Not the One People Tell You It Needs to Be

There’s a few points I want to make about all of these studies and case reviews. I have evaluated a few people high on synthetic cannabinoids. Each time, I did not think that their influence fit in the Cannabis category. This is based on the drug evaluation, not what people say I should be placing it. It’s important to note these studies differences in Cannabis influence and Synthetic Cannabinoid influence. Call the category you see, not the one someone else tells you it should be.

The other point is nystagmus. Many people say they see horizontal gaze nystagmus (HGN). According to Horizontal Gaze Nystagmus: The Science and the Law, this is what nystagmus is:

“Nystagmus” is a term used to describe a “bouncing” eye motion that is displayed in two ways: (1) pendular nystagmus, where the eye oscillates equally in two directions, and (2) jerk nystagmus, where the eye moves slowly away from a fixation point and then is rapidly corrected through a “saccadic” or fast movement. HGN is a type of jerk nystagmus with the saccadic movement toward the direction of the gaze. An eye normally moves smoothly like a marble rolling over a glass plane, whereas an eye with jerk nystagmus moves like a marble rolling across sandpaper (note: the sandpaper reference has been removed from the latest edition of the DRE manual). Most types of nystagmus, including HGN, are involuntary motions, meaning the person exhibiting the nystagmus cannot control it. In fact, the subject exhibiting the nystagmus is unaware that it is happening because the bouncing of the eye does not affect the subject’s vision.

Are DRE’s really seeing nystagmus? I’ve seen it a few times and it reminds me of a vibrator being attached to the optic nerve. To me, at least, it doesn’t really look like nystagmus as the definition we give students. Another respected DRE at LAPD described it to me as an inability to follow directions. Other DRE’s have told me that they believe it is true nystagmus. To me, it feels as if I am watching brain damage in progress. It’s unfortunate and a sad reality (editors note: if you have a video of this, we would love it if you sent a copy to us for training).

What is your experience? What do you see when it comes to nystagmus with synthetic cannabinoids? Would you list it as the definition above, or would it be something else that is occurring physiologically that we haven’t yet figure out what it is? Put your thoughts down in the comments below.

Also, watch this video. Does this look like typical cannabis influence to you?

What to do If You Aren’t a DRE or One Isn’t Available

I love being a DRE. But, one thing I’ve discovered about some DRE’s is that they think an officer can’t do a DUID case if a DRE isn’t available. That is far from the truth. Some of the best DUID enforcers I’ve seen have never been to DRE school. With that said, the best thing you can do is to complete the DUI investigation just as you would any other DUI. That means doing the SFST’s you were trained to do:

1. Horizontal Gaze Nystagmus
2. Walk and Turn
3. One Leg Stand

I want you to add a couple of extra things. Add Vertical Gaze Nystagmus, the Modified Romberg Balance and Finger to Nose. A video of your stop will go a long way as well. Body worn cameras (BWC’s) are a great tool for law enforcement. The behavior you see will be great evidence in trial. I remember my first DUID. I was freaked out about being wrong. After getting a few under my belt, I realized how easy they were.

It’s Only Going to Get Worse

I’m writing this article because the problem is getting worse every day. New synthetic drugs are coming to market at the rate of one a day. It’s important to get this information out to officers on the street so that they can be effective on the street and help fight this scourge.