As of November 2008, in 16 states (Arizona, Delaware, Georgia, Indiana, Illinois, Iowa, Michigan, Minnesota, Nevada, North Carolina, Ohio, Pennsylvania, Rhode Island, Utah, Virginia, and Wisconsin), it is illegal to operate a motor vehicle if there is any detectable level of a prohibited drug, or its metabolites, in the driver's blood. This means the State does not have to prove the drugs in your system had any impact on your ability to drive a car. New Hampshire still defines "drugged driving" as driving when a drug causes the driver to be impaired. The Standard Jury Instruction of “under the influence” reads:
“Under the influence” means a person has taken into his/her system a sufficient quantity of [intoxicating liquor] [or any controlled drug][or any combination of intoxicating liquor and controlled drug] so that his/her ability to operate a vehicle is impaired to any degree.
In 2010, a bill was introduced, in New Hampshire as follows:
House Bill 665: "This bill changes the prohibition on driving under the influence of a controlled drug to driving under the influence of a chemical substance, natural or synthetic, or its metabolites." (This would include caffeine, nicotine, Viagra or numerous other prescribed medications which may impact the ability to drive to "some degree"). The substance of this bill has now become law in this state effective January 1, 2013.
Although the "zero tolerance" approach used in other states makes for easier prosecution of individuals charged with driving under the influence of Drugs, it is not supported by any science, and is actually contrary to what we know about the effects of certain drugs and their metabolites on the human body;
"Current research does not enable one to predict with confidence whether a driver testing positive for a drug, even at some measured level of concentration, was actually impaired by that drug at the time of crash." -- US Department of Transportation, State of Knowledge of Drug-Impaired Driving: FINAL REPORT, September 2003
"Drug tests detect drug use but not impairment. A positive test result, even when confirmed, only indicates that a particular substance is present in the test subject's body tissue. It does not indicate abuse or addiction; recency, frequency, or amount of use; or impairment.” -- US Department of Justice, Drugs, Crime, and the Justice System, December 1992
“The concentration at which the drug is present shouldn’t be an issue, because it isn’t possible to relate concentrations to “impairment” with any degree of reliability.” JANUARY, 2006 DRE STUDENT MANUAL
There has been, and likely will continue to be, efforts to have New Hampshire join the “zero tolerance” states where you are convicted of “DUI” even when no evidence of “impairment” exists. It remains to be seen how aggressive Law Enforcement will be in arresting for driving while on your prescription medication, over-the-counter medications, REDBULL or cigarettes under the new DWI law adopted January 1, 2013.
WHY CAN'T WE PROSECUTE, AND DEFEND, UNDER THE INFLUENCE OF DRUG CASES JUST LIKE ALCOHOL CASES? ISN'T ALCOHOL JUST A DIFFERENT DRUG?
Alcohol is a special drug. Chemically speaking, the alcohol molecule is very simple compared to the molecules of other drugs. Scientists have had many opportunities to study alcohol’s effects under carefully controlled experimental conditions. The scientific community has a relatively clear understanding of how alcohol works on the body and brain. These statements generally can’t be made about other drugs.
Drugs are metabolized in complex ways, and sometimes the metabolites are also drugs. Apart from post-mortem studies of lethal levels, there haven’t been routine opportunities to correlate drug concentrations with degrees of impairment. Ethical concerns limit the ability to study illegal drugs, especially at “street” dosages. In some instances, it is possible that a positive chemical test reflects drugs that the person took long before being arrested, and that were metabolized and no longer causing impairment prior to his or her arrest. The metabolite for marijuana, for example, can remain detectable for weeks after the drug is consumed when the “effects” of the drug clearly would not impact the ability to drive.
Thus, the prosecution, and defense of under the influence of drug cases requires a high level of sophistication and awareness of the real differences in the effects various drugs have on the human body. For the prosecution this has given rise to the "DRE" program.
What is a "DRE"?
"DRE" is an acronym for “Drug Recognition Expert”. To become a DRE a police officer must generally complete two days of preliminary classroom training, a seven day DRE school, and complete twelve on site DRE evaluations before being certified as a DRE. The DRE program started in California in the 1970’s and is now used nationwide. In New Hampshire the State Police started a program in 1991 and it has expanded state wide. DRE certification is good for two (2) years and requires both classroom training (8 hours) and evaluations (four during the two years) in order to recertify.
What does a DRE do?
Although discussed in more detail in other sections of the site, a “DRE” is trained, in theory, to detect whether somebody is under the influence of drugs and, if so, what is the classification of that drug. The theory is that reliable detection is accomplished by administering a standardized and systematic evaluation that includes a breath test, a series of psychophysical tests, checks of vital signs, a series of eye examinations including measuring pupil sizes under various conditions of light, and an interview of the arresting officer.
At the completion of the evaluation, a DRE believes they can reliably opinionate a category or categories of drugs which may impair the suspect from safely driving a motor vehicle. This opinion is then confirmed by the toxicology results of a blood test. Some of the drug categories frequently opinionated are Central Nervous System Depressants, Central Nervous System Stimulants, Narcotic Analgesics, and Cannabis THE PROTOCOL OF A DRE EXAMINATION
A DRE exam requires a very cooperative suspect, as 12 steps are involved:
DECP 12 Step Evaluation Process 1. BREATH ALCOHOL TEST 2. INTERVIEW OF THE ARRESTING OFFICER 3. PRELIMINARY EXAMINATION a. First pulse assessment (Normal 60-90 BPM: (30 seconds x 2)). b. Initial angle of onset check (HGN) c. Initial estimate of pupil size (room light) 4. EYE EXAMINATION a. HGN: (LOSP, DNMD, 0NP45̊) b. VGN c. Lack of convergence 5. DIVIDED ATTENTION TESTS a. Romberg Balance b. Walk and Turn Test c. One Leg Stand Test d. Finger to Nose Test 6. VITAL SIGNS a. Second pulse assessment (Normal 60-90 BPM: (30 seconds x 2)) b. Blood pressure assessment (Normal Systolic 120- 140 mmHg) c. Body temp. assessment (Normal Body Temp: 98.6 +/- 1 degree F) 7. DARK ROOM EXAMINATION a. Pupil size assessment i. Room light (Normal 2.5 to 5.0 mm) ii. Near total darkness (Normal 5.0 to 8.5 mm) iii. Direct light (Normal 2.0 to 4.5 mm) b. Ingestion Assessment i. Check nasal area ii. Check oral cavity 8. MUSCLE TONE ASSESSMENT a. Normal b. Flaccid c. Rigid 9. INJECTION SITE ASSESSMENT a. Third pulse assessment (Normal 60-90 BPM: (30 seconds x 2)) 10. INTERROGATION OF SUSPECT 11. OPINION OF EVALUATOR 12. TOXICOLOGY a. Collect urine or blood sample for toxicological analysis.
If you are charged with driving under the influence of a controlled drug it is critical for you to retain a lawyer with experience in “DUID” (Driving Under the Influence of Drugs) cases. Our firm has trained lawyers statewide for the New Hampshire Criminal Defense Association on defending “DUID” cases as well as litigating the controlling New Hampshire case on the issue; State v. Anthony Dilboy, 160 N.H 135 (2010) argued at the New Hampshire Supreme court, successfully appealed to the United States Supreme court, back to the New Hampshire Supreme Court. A very long, and strange, trip indeed.
Andrew Cotrupi, Esquire, 428 Lafayette Rd., Suite 102, Hampton, NH 03842 Phone: (603) 926-5818 Fax: (603) 758- 6376