Expanded DRE/DUI (non-prescription drug) law in effect in N.H.

A new state law has made it tougher for people who drive under the influence of drugs in New Hampshire.
The law, which went into effect Jan. 1, has made driving impaired due to over-the-counter and prescription drugs illegal.
“There was a loophole in the language which did not include many drugs which impair you to drive,” said State Police Sgt. Matthew Shapiro, commander of the drug recognition program. “People could be 10 times more impaired and not be prosecuted.”
Defense attorney Mark Stevens of Salem, who specializes in DUI cases, is advising his clients to be careful about what they say to police if pulled over.
“Even if you pass a sobriety test,” Stevens said, “if your eyes look red and you say you have a cold and you took NyQuil or Sudafed, you can be arrested for that.”
In New Hampshire, the law previously only punished drivers who drove under the influence of controlled drugs. Now, if it is determined that over-the-counter medicine such as antihistamines or ibuprofen caused the driver to be impaired, that’s cause for arrest.
State police will continue to conduct field sobriety tests and ask drivers to submit to Breathalyzer or blood tests when warranted.
Salem police probably would ask what medications drivers are taking, regardless of the change.
Salem police prosecutor Jason Grosky said when a person is suspected of driving under the influence, police seek blood tests to determine what is in their system. The blood work is then sent to the state laboratory to be analyzed.
Stevens still believes that there are problems with the law.
“Isn’t spinach a natural substance?” Stevens asked. “It seems to cover everything under the kitchen sink. The intent of this law originally was to get drunks off the road and now people are going to be arrested for driving under the influence of Robitussin. It’s nutty.”
There are other changes in the law, too.
Anyone charged with a DUI must now be arraigned within 14 business days.
Those who are charged have to undergo a screening test to determine if they have a substance abuse problem. If it is found that they do, they must attend an education program or have an individualized service plan.
http://www.eagletribune.com/latestnews/x730427664/Expanded-DUI-law-in-effect-in-N-H
The DRE program is found to be unreliable and not admissible.
By Justin McShane Esq:
In a very well-litigated case where the prosecution brought in its very best national experts and the defense had funding and knowledge into the DRE program, the trial court quite clearly found the Drug Recognition Expert (DRE) program to be unscientific and unreliable. As a result the evaluation and the conclusion was inadmissible.
The case citation is: State of Maryland v. Charles David Brightful, et al, No. K-10-04-259, Circuit Court for Carroll County, MD March 5, 2012. The full opinion of the court is available here.
What makes this victory even more complete for science is that the court per Maryland state case law used the much looser Frye standard that governs admissibility of the prosecution evidence. So under the Frye standard, the prosecution should have had a much easier time to have the evidence gain admissibility.
Here is the holding of the court:
Applying Md. R. 5-702 to the proposed DRE testimony, the Court finds that a drug recognition expert is not sufficiently qualified to render an opinion, that the testimony is not relevant, and the probative value of the evidence is substantially outweighed by its prejudicial effect.
Findings of Fact:
The DRE Protocol fails to produce an accurate and reliable determination of whether a suspect is impaired by drugs and. by what specific drug he is impaired. The DRE training police officers receive does not enable DREs to accurately observe the signs and symptoms of drug impairment, therefore, police officers are not able to reach accurate and reliable conclusions regarding what drug may be causing impairment.
Six experts testified for the government. Three testified for the defense: a clinical pharmacologist, an ophthalmologist, and a psychiatrist. The defense experts, in summary, were all highly critical of different aspects of “drug recognition experts” and the protocol used by DRE’s. All three defense experts testified that the DRE protocol and matrix are not generally accepted in the fields of medicine including specifically pharmacology, neurology, ophthalmology and psychiatry.
From the opinion itself:
Although the DRE program is utilized in 45 states, the presence of the DRE program does not equate to widespread judicial acceptance by appellate courts nor acceptance in the medical community.
Mr. Tower (he is a liaison from NHTSA and government expert) further testified that in addition to the wide discretion in what weight to give the indicators on the matrix, the DRE is not even required to complete the 12-step protocol to reach an opinion as those steps are merely “preferred.” (Tr. 2/14/11 at 95-96). Mr. Tower testified that even if no drugs at are found in the subject’s blood, the DRE is “not going to change [their] opinion after you get the blood.” (Id. at 103-04) Mr. Tower stated that the reason there would be no change in the officer’s opinion is that “you are limited on what the lab can test for.” (Id. at 104) (Emphasis supplied.)
Part of the defense expert psychiatrist’s testimony:
I have got to tell you, your Honor, DRE is something that’s not foremost in the mind of those of us who take care of substance abusers, clinically or forensically. People are aware of it. But it’s- no one I know of, no physician I know of would even consider using this matrix or the – even pieces of it in determining either whether someone was impaired on drugs or even more ridiculously to tell which specific drug category. It’s ridiculous-I can’t emphasize that enough.
For both sides it was the most comprehensive hearing to date looking directly at the scientific reliability and admissibility of the DRE process.
To validly interpret the totality of the circumstances, these cases take experts–real credentialed pharmacologists with clinical experience who have dosed folks and real analytical chemists. To defend these DUID cases, defense attorneys need to hire experts. Sadly and incorrectly most of my colleagues think they can go without. They infrequently win when they do. If the accused has a knowledgeable attorney who is schooled and truly understands the science combined with real credentialed experts these cases are quite easy to defend because the science is wholly on the side of the motorist accused in terms that the government very rarely has all of the information necessary to form a valid conclusion.
The bottom line is that claiming something is valid and proving it is valid are two separate things.
http://www.thetruthaboutforensicscience.com/tag/drug-recognition-expert/