2013 DWI Sentencing – Chaos In The Court System – Part II

Last week, I wrote about how a new legislative enactment, effective January 1, 2013, instilled chaos and confusion in the sentencing process for individuals convicted of driving while intoxicated in New Hampshire.

The law also will make it a lot easier for prosecutors to obtain a conviction, particularly for those accused who do not hire legal counsel. That’s because until 2013, to prove a DWI, the NH prosecutor had to prove that the accused was operating a motor vehicle on a public way while under the influence of a intoxicating liquor and/or controlled drug(s).

As of January 1, 2013, the scope of the law expands dramatically to cover any person in NH driving under the influence of intoxicating liquor or any controlled drug, prescription drug, over-the-counter drug, or any other chemical substance, natural or synthetic, which impairs a person’s ability to drive or any combination [of the above].”

Yes, you read that correctly – the NH “DWI” law now covers driving under the influence of anything. Unlike alcohol, where we as a society have (for better or worse) set a “legal limit” of .08% blood alcohol concentration, there are no “legal limits” for prescription drugs and over the counter drugs, much less for “any chemical substance, natural or synthetic….” Thus, there are no standards guiding how a police officer or prosecutor should act in a given case.

This will inevitably lead to injustice, because overzealous police officers and prosecutors will use it as a driftnet to stop, investigate, arrest and prosecute on a wholly arbitrary basis.

Until 2013, a person pulled over for crossing the fog line who had no alcohol on her breath, and no signs of illegal drugs, but acting tired or lethargic, would be told to be careful and allowed to leave.

A person stopped for speeding who seemed a bit energetic, but otherwise showed no signs of alcohol or illegal drug use, would be given a ticket or warning and told to slow down.

Now, the police officer in these situations, fearful of lawsuits that may arise if a person is let go, will be on the warpath for cold medicines, herbal remedies, energy drinks, pill containers, over-the-counter drug packaging.

If you are pulled over during “prime time” for DWI cases – around or after midnight – and you act tired, because it is, after all, after midnight – and you have a pill container or cold medicine packaging in your car? Forget about it. You can expect to be detained, tested and arrested – and all of your over the counter or prescription medication will be seized, for a laboratory testing process that takes weeks.

You might want to toss that Red Bull can out the window after you drink it. Don’t want to have a police officer seeing that “incriminating” item in your front seat console!

A good NH DWI lawyer, however, will be able to contest these cases because neither a police officer, nor the typical “experts” employed by the State of New Hampshire, have the qualifications to offer an opinion as to the guilt or innocence of the accused.

I recently worked with a terrific neuropharmacologist, Dr. Fran Gengo out of the Dent Institute in NY, who helped me guide a Aggravated Driving under the Influence of Marijuana prosecution in the Candia Circuit Court towards a very favorable disposition (Reckless Operation, a non-alcohol related, non-criminal motor vehicle violation).

Dr. Gengo points out the following:

“For most cases involving drug concentrations, more than just the concentration is needed for me to be able to opine regarding impairment, or even whether the concentrations are high. In order to intelligently opine I would need to know:

• Are these medications being used therapeutically or recreationally?
• The medical disorders being treated with these medications?
• The patients other medical history, and any other medications being taken?
• The dose and duration that these medications have been at a stable dose?
• The time between the blood collection and administration of the last dose?

If after 30 years as a clinical pharmacologist seeing patients in an academic practice I cannot opine with our this information, then neither can the State’s expert who is typically a chemist with no clinical training or clinical experience and no knowledge about those factors in your client that influence his reaction to medications.”