Attorney Mike Bowser talks with Dean Contover of The Current Buzz on CTM TV about driving under the influence of drugs in Massachusetts and New Hampshire.
Driving on Prescription Medications
Dean Contover: There’s some people in my age group on medication or insulin. I was just wondering what happens in that situation.
Mike Bowser: I can give you two examples.
Dean: Okay.
Mike: This year, I’ve had two separate cases, two different courts. One was a young lady that was charged – I shouldn’t say young – a middle aged lady, my age.
Dean: Yes.
Mike: Who was with her child driving home after just a family dinner. Kind of a birthday celebration. She was stopped and the only thing in her system – she was 0.00 on the breath test for alcohol. She had had one drink, but it was hours earlier, but she was on a number of prescribed medications.
And she took all of her prescribed medications as directed by her doctor, and ultimately had difficulty with the field sobriety tests and was charged with operating under the influence of drugs.
Mike: I had another one this year where the gentleman was alleged to have been high on marijuana. Had been smoking marijuana either in the car or immediately before.
Dean: They call it cannabis now. That’s the official…
Mike: Cannabis. So he had some of the cannabis on him. Which was a civil infraction. He was not charged for the crime because that’s no longer a crime, to have less than an ounce. But he was charged with operating under the influence of marijuana. In both of those cases, thankfully I resolved with dismissals and a not guilty. And they’re very difficult cases to prove, because unlike alcohol, if you were to consume a number of drinks, there’s a per se level 0.08. At which there’s a legal edict that says above 0.08, you are impaired. There’s no such level for, for instance THC, which is the active ingredient of cannabis.
Dean: Right.
Mike: In any number of the prescribed medications, if you’re taking them as prescribed and you’re within your therapeutic range for those medications, you’re not necessarily impaired.
And then there’s an element with the prescribed medications where the government has to prove knowledge. That you knew, going into taking the medications, what the side effects were going to be in combination with all the meds and you drove anyway. And that’s very difficult to prove if someone’s following the doctor’s orders and taking the medication. With the illicit drugs, they need to prove impairment, but that’s easier.
Dean: Well, marijuana in Massachusetts is not an illicit drug if for medical use.
Mike: We’re there now, yes.
Dean: Exactly.
Mike: So it’s a difficult –
Dean: It’s a new avenue or realm.
Mike: Yes. You will see – and in my own practice, given the number of DUI defense matters that I handle – I have certainly seen, over the last several years, more and more of the impaired by drugs driving charges. Both prescribed and illicit. There’s – you would not – well, you probably know very well the number of people that are on either mood enhancers, anti-depressants, anti-anxiety. Any number of medications which taken in combination or mixed with alcohol very well could impair a driver, so yes. That is kind of the next wave, I believe, of drunk driving defense and prosecution.
Driving Under the Influence of Marijuana
Dean: Right. Exactly. Because in Colorado, the government of Colorado is coming out with TV advertising not to drive under the influence of cannabis.
Mike: Which is completely recreationally legal.
Dean: That’s correct. And which has opened a new Pandora’s Box in law in Colorado, so that will filter down to the other states if they legalize it in Massachusetts or New Hampshire.
Mike: Right. There’s a program in Massachusetts and I’ve seen it in New Hampshire as well called DRE. Drug Recognition Examination or Drug Recognition Expert, and these are officers that are selected to receive specialized training in just that. Detection of those that are impaired by either prescription medications or illicit drugs.
Dean: So how will that be — they’ll have to be trained, right?
Mike: They are trained. It’s a whole different protocol than the standard. The standard battery of field sobriety tests at road side is; horizontal gaze nystagmus, follow the pen with your eyes –
Dean: Right.
Mike: – the walk and turn nine steps up, turn, nine steps back, and then a one leg stand, and then typically, well, you take a breath test.
Dean: I don’t know my alphabet, I forgot – I haven’t said it since the first grade…
Mike: What they’re going to ask you to do — they say start with a letter other than A, and I want you to start at the letter D without singing the alphabet. Start at the letter D and end at the letter N as in Nancy. Go. It’s not easy.
Dean: It’s not easy.
Mike: But that DRE protocol is essentially – it is a battery of various tests including blood pressure, pupil size, heart rate –
Dean: Right.
Mike: – plus some other tests where they try to determine what, if any, substance, you are under the influence of. It also involves a number of questions and then you get to Miranda issues, because when the DRE protocol or examination is conducted, it’s typically at a station. You already have been arrested, you’re definitely in custody for purposes of, you have the right to remain silent, you don’t have to answer questions, so they have to get through that to the point where they can conduct the protocol, so they tend to be complicated cases.
