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OUI-Drugs, DRE’s, and a Maine Judicial Conference Panel.

OUI-Drugs, DRE’s, and a Maine Judicial Conference Panel.

Posted by Edmund R. Folsom, Esq.

October 27, 2019

Disclaimer:  What follows is information, not advice.  It is not to be taken as advice.  The reader has no attorney-client relationship with the author on account of reading this blog.


The October 22, 2019 Panel Discussion.

On October 22, 2019, I participated in a panel discussion at the annual judicial conference, at the Capital Judicial Center, in Augusta.   Also on the panel were Justice Robert Mullen, Maine State Police Trooper Seth Allen, Assistant D.A.’s Pat Mador and Alice Clifford, State chemist Heather Dyer, toxicologist Dr. Karen Simone, and defense attorney Sarah Churchill. The discussion covered drugged driving prosecutions, the drug recognition expert (DRE) protocol, laboratory analysis of urine and blood samples for drugs and metabolites, and the effects of drugs on those who ingest them. Traditionally, the crime of operating under the influence (OUI) has involved operating under the influence of alcohol, but the crime of OUI is defined more broadly than that. A person commits OUI either by driving a motor vehicle while having a blood or breath alcohol level of .08% or more or by operating “under the influence of intoxicants.” “Intoxicants” are defined to include alcohol, a drug other than alcohol, or a combination of drugs and alcohol. “Drugs” are defined to include all drugs under schedules W, X, Y and Z in Maine’s Criminal Code, which includes all prescription drugs, in addition to street drugs and cannabis.   Because all prescription drugs that are not expressly included in schedules W, X and Y are schedule Z drugs, all prescription drugs, of whatever nature, are “intoxicants” for purposes of the OUI statute. Lately, especially in light of the legalization of marijuana for medical and recreational purposes, law enforcement are focusing more and more on people they suspect are driving under the influence of drugs.

How Do Police and Prosecutors Put Together an OUI-Drugs Charge?

To detect whether a person has driven under the influence of drugs, and to build an OUI/drugs case, police have developed a so-called drug recognition expert (DRE) protocol. Panelists Seth Allen and Pat Mador walked the audience through the protocol. Trooper Allen is a DRE, certified as such under standards set by the International Association of Chiefs of Police (IACP).  He and other DRE’s are trained to follow the DRE protocol to:  (1) rule out alcohol as a source of impairment, (2) determine whether the suspect is impaired by something, (3) rule out a medical condition as the source of any observed impairment, (4) if a medical condition is ruled out, render an opinion as to which of 7 categories of drugs is or are causing the impairment, and (5) secure a sample of the person’s blood or urine for laboratory analysis.

The 12 steps of the DRE protocol are:

(1) Administering a breath test to rule out impairment by alcohol;

(2) Interviewing the arresting officer about the officer’s observations, statements made by the suspect, any drugs found on or around the suspect, etc.;

(3) Preliminarily examining the suspect, including examining the suspect’s pupils, taking the suspect’s pulse, questioning the suspect about illness, current medical care, medications, and whether the person is diabetic or epileptic;

(4) Horizontal and vertical gaze nystagmus tests and a check for so-called lack of convergence of the suspect’s eyes (inability to cross eyes);

(5) Walk-and-turn, one-leg-stand (standing on each leg once), and finger to nose tests, and a modified Romberg balance test that involves estimating the passage of time in a 30-second interval;

(6) Taking the suspect’s blood pressure, oral temperature and pulse rate;

(7) Checking the suspect’s eyes under various light conditions for pupil size, reaction to light and rebound dilation, and checking the person’s oral and nasal cavities for signs of drug use;

(8) Checking the person’s muscle tone;

(9) Checking the person’s arms for injection marks, and taking pulse for the 3rd and final time;

(10) Interrogating the suspect regarding drug usage, attempting to elicit an incriminating response;

(11) Formulating an opinion as to the category or categories of drugs that are impairing the suspect; and

(12) Obtaining a blood or urine sample for testing purposes.

The DRE’s opinion is reached under guidance from a “DRE matrix,” which sets out physical indicators consistent with each of 7 categories of drugs. Indicators are listed on the matrix’s vertical axis. Drug categories are listed on its horizontal axis. The seven drug categories are:  (1) central nervous system (CNS) depressants, (2) CNS stimulants, (3) hallucinogens, (4) dissociative anesthetics, (5) narcotic analgesics, (6) inhalants, and (7) cannabis.

The DRE’s opinion regarding impairment in and of itself is based mostly on performance on the divided attention tests.  The DRE’s opinion regarding the category or categories of drugs causing impairment is based on indicators observed during the remainder of the examination, fed into the DRE matrix along with observations of the arresting officer, admissions by the suspect, and drugs or paraphernalia located during a search.

The logic underlying a DRE’s drug impairment opinion runs something like this:  Performance of physical and mental tasks indicate the person is impaired; alcohol and medical conditions are ruled out as the cause; therefore the impairment must be caused by a drug or drugs.  As to the category or categories of drugs causing impairment, again, the DRE uses matrix information to reach that opinion. For purposes of DRE certification, if the DRE opines that the person is under the influence of two categories of drugs, but only one is confirmed present by laboratory results, that is considered a correct call.  Half wrong is entirely correct.

Maine DRE’s ordinarily secure urine samples from suspects, not blood samples, although panelist Dyer informed us that the State’s lab will soon be certified to do blood-drug analyses.  We should expect DRE’s to collect more blood and fewer urine samples at that point.  And, by the way, the person who sticks you for a blood sample is usually a cop, not a medical person these days. But that’s another matter.

What Does The Lab Analysis Tell Us?

Lab analyses of urine samples report only the presence of certain drugs or their metabolites, indicating only that the person used a particular drug at some relatively recent point.  In other words, lab results do not demonstrate that the person was impaired by a detected drug when the person was driving or when the person was examined by the DRE. The person might have ingested the drug days before. In the case of marijuana, the metabolite reported in Maine urine lab tests, Carboxy THC, can be detected days or even weeks after use, well after the drug is no longer impairing the suspect.

The DRE training manual states that blood tests may disclose cannabis use for up to 3 days after smoking and that urine tests may indicate the presence of THC metabolites for up to a month. But if the DRE has opined, based on the DRE protocol, that the person was impaired by cannabis when examined, the State puts forth the positive test result as proof of that proposition. The logic runs something like this:  (1) A highly-trained and certified DRE applied a standardized DRE protocol and fed the observed results into the DRE matrix; (2) this led to a determination that the defendant was under the influence of cannabis; (3) lo-and-behold, metabolites of that very category of drug – cannabis – were inside the defendant; (4) which confirms the highly-trained and certified DRE’s opinion, based on standardized, specialized tests, that the defendant was under the influence of that very category of drug; (5) coincidence? … we think not.

How Might a Blood or Urine Test Negative for Drugs be Fobbed Off as Consistent with the DRE’s Opinion?

What happens if the urine test result comes back negative?  This is where panelists Dyer and Simone came in.  They each explained why the DRE’s opinion might be correct even though the drug test is negative. Dyer explained that the level of THC or metabolites might be below the cutoff point for reporting results, or that the DRE might be right that the defendant was impaired by a drug, but the drug might have been some new designer drug whose effects mimic cannabis but that the lab wasn’t able to detect.  Dr. Simone explained that, alternatively, metabolites of the THC that was impairing the person might not yet have made it to the urine when the sample was taken. If a blood sample instead of a urine sample were analyzed, the THC that was impairing the person during the roadside evaluation and later DRE evaluation might largely have been metabolized out of the blood by the time the sample was obtained. This would bring us to Dyer’s explanation of drug or metabolite presence that is below the cutoff for reporting.

If you happen to be stopped by a police officer and are subjected to a DRE evaluation that yields an opinion of impairment by cannabis (or another drug category), and if your drug test comes back negative, understand that you might be prosecuted anyway.  When both the presence and the absence of drugs or metabolites in laboratory findings are consistent with drug impairment, the name of the game is, “Heads we win, tails you lose!”

A T.V. News Report About Negative Lab Results In Georgia DRE Cases.

I played a video clip, at the judicial conference, of a news spot from a Georgia TV station. It’s an interesting clip, about 7 minutes long if you have any interest.  It’s about 3 people who were arrested by a DRE in Cobb County, Georgia, for DUI-marijuana. All of them denied using the drug and all of them produced blood and/or urine samples that tested negative for drugs. All had their DUI charges dismissed months after their arrests, when their test results came back. You might wonder how the DRE could have been right in these cases, given the negative lab results, but the Georgia police are sticking by their highly trained DRE specialist’s opinion. Do their rationalizations run along the lines of the explanations proffered by Maine Judicial Conference panelists Dyer and Simone?

Even assuming, though, that the Georgia DRE might be wrong and that the negative lab results truly reflect that none of the three people in the news story were under the influence of drugs, some might ask, “So what?”  It comes with the territory.  Innocent people get arrested based on an officer’s determination of probable cause on all sorts of criminal charges, not just OUI. It happens quite frequently, and it simply reflects our inability to achieve perfection in any human endeavor.  We know from DNA exonerations that many people even end up being convicted at trial of things they didn’t do. Some spend decades in prison for crimes they didn’t commit. It isn’t unreasonable to suppose some have even died in prison or been executed – Oops.  So why get all exercised over a relatively piddling OUI charge, even if the negative lab results do tell the truth, as long as the charges are dismissed when the results come in?  What’s the big deal with these whiners in the Georgia T.V. spot anyway?

One conference attendee reminded me that something similar used to happen with OUI/alcohol arrests in Maine. Back 30+ years ago, Maine used alcohol test kits that required a defendant to blow into a tube containing silica gel, sufficiently to inflate a balloon on the other end of the tube. The tube was then sent to a lab for alcohol analysis. It routinely took a week or so to get the lab results, during which time defendants were in circumstances similar to those arrested for OUI/drugs – facing an OUI charge, waiting for test results. Fairly often, the result would come back below the .10% required to prove a per se OUI charge at that time. If, for instance, someone’s result came back .04%, the D.A. would issue a “no complaint” of the charge, and that was the end of it.

Back then, I used to screen lots of OUI charges involving balloon kits as an assistant D.A.  I don’t recall ever screening one involving a test result of 0.00%.  And this brings me to the difference between a person awaiting balloon kit results on an OUI-alcohol arrest and one awaiting urine or blood results in an OUI-marijuana arrest.   There was never any chance that if a balloon result did come back 0.00% a D.A. would have pressed ahead with prosecution. The test result was viewed as an accurate measure of the alcohol in the defendant’s breath/blood.  There were no chemists or toxicologists around to testify that, despite the defendant’s 0.00% result, the defendant could have been impaired by alcohol and the alcohol that impaired him might not have been detected by the test.

Assuming just for a moment that a negative test result might accurately reflect that a person arrested for OUI-marijuana had no THC or metabolites, or any designer drugs in her system that slipped past detection, isn’t it a little troubling that no drug test can be had to disprove the impressions of the highly trained and certified DRE, augmented by official explanations why the absence of findings is consistent with drug impairment?  And if a person with no trace of the drug in her system can be run through the ringer, how about the people who might have last smoked marijuana days or even weeks before their traffic stop, who produce a positive urine result for Carboxy THC because of it and who are faced with the cannabis impairment opinion of a highly-trained and certified DRE, even though they ingested no drugs for days before their arrests?

Back in the days of balloon breath kits, there was never a chance that any alcohol a person drank the week before would be detected to corroborate the officer’s opinion of impairment by alcohol.  But that is the position a person is in who is arrested for OUI-marijuana if the person’s urine sample contains detectable Carboxy THC.  After all, a positive finding always speciously corroborates the DRE’s opinion.

Two clues on the walk and turn, another on the one-leg-stand, missed fingertip to nose-tip attempts, eyes that don’t converge, blood pressure above the normal range, maybe some fluttering of eyelids during the one-leg-stand and an estimate of 25 seconds in what is actually 30, plus a confirmed positive test result for the very drug the highly-trained drug recognition expert predicted – Bingo!  Assuming the accuracy of such claimed observations, many of which will not be recorded on video (because they just aren’t), consider this:  In 2016, AAA did a study to see if they could find a correlation between blood-THC level and impairment of driving functions.  They found no correlation, but they did find the following about DRE test subjects who tested negative for THC:  34.9% of them could not converge (cross), their eyes, 44.3% showed 1 or more clues and 23.3% showed 2 or more clues on the walk-and-turn test, 50.7% had at least 1 miss and 40.8% had 2 or more misses on the finger-to-nose test, and 22.9% had eyelid tremors.  As for elevated blood pressure, the DRE training manual identifies as “normal conditions” that can affect vital signs, excitement, fear and anxiety.  All of these “normal conditions” might result from being subjected to a DRE protocol at a station house, after being transported there under arrest, in handcuffs, might they not?

How is DRE Testimony to Be Treated at a Trial?

So you are put through a criminal trial, because the D.A. is sticking by the DRE’s opinion and because the negative test result holds no significance for him. Will the trial court admit the DRE’s testimony into evidence?  If the court does let the testimony into evidence, will the court limit the use to which the evidence may be put?  Will the court issue a cautionary instruction to the jury, to prevent them from being misled by any scientific/medical aura surrounding the DRE protocol?  In other jurisdictions these issues have been hotly contested, especially the issue of whether DRE testimony about the protocol should be admitted to begin with.

One court held that DRE testimony involves scientific evidence not shown sufficiently reliable to be admitted.  Others admit the evidence, reasoning  that the portions of the DRE protocol that are based on novel science are sufficiently reliable to be admitted and that other portions of the protocol are not scientific.  Some courts do not allow the drug recognition officer to be called a drug recognition “expert,” instead referring to the officer as a drug recognition “officer” or drug recognition “evaluator.”

In Massachusetts, the Supreme Judicial Court created a model instruction specifically cautioning jurors that the HGN, walk-and-turn, and one-leg-stand tests are not scientific tests of impairment by marijuana use, and that the jury may consider such evidence only in relation to the defendant’s balance, coordination, mental clarity, ability to retain and follow directions, ability to perform divided attention tasks, and other skills the jury might find relevant to safe operation of a motor vehicle. The article, here, provides a great overview of issues other jurisdictions have dealt with, including these evidentiary issues, in DUI-marijuana cases. It is also full of links to source materials.

In Maine, there is a statute that states when a certified DRE conducts a drug impairment assessment, “the officer’s testimony about that assessment is admissible in court as evidence of operating under the influence of intoxicants.”   This cannot, however, override the court’s gate keeping function to keep out junk science or otherwise unreliable testimony under the Maine Rules of Evidence.  There is another Maine statute that states the Supreme Judicial Court has the power to promulgate rules of evidence, and, “After the effective date of said rules as promulgated or amended, all other laws in conflict therewith shall be of no further force or effect.”

Why Should Courts be Concerned About Evidentiary Reliability of DRE Testimony, or, Why Not Just Throw It in There and Let Cross-Examination Sort it Out?

There is very real danger in junk science and over-stated quasi-science presented by government witnesses, as experience with testimony presented for years, all over the U.S., by agents of the FBI’s Hairs and Fibers Unit demonstrates.  For nearly 40 years, agents from the FBI’s Hair and Fibers unit presented testimony assigning absurdly high degrees of certainty to their matches of hairs found at crimes scenes to those of criminal defendants.  In all likelihood, they believed their own B.S., much the same way some DRE’s believe their B.S. over lab results.  At least it’s more comforting to think the FBI agents believed their own B.S. than it is to think they were running all over the U.S., intentionally lying under oath to secure criminal convictions, training local police officers in the same techniques and strategy … although that is another possibility.

It isn’t possible to know how many people were wrongly convicted based on the exaggerated FBI testimony.  But in an April 20, 2015, FBI press release the Bureau acknowledged that its examiners presented false hair match testimony in 257 of the 268 cases (96%) the FBI reviewed.  In 35 of the reviewed cases, the defendant received the death penalty. The FBI identified “errors” in its testimony or other representations in 33 of them. Twenty-six of twenty-eight agent/analysts either provided false testimony or provided lab reports containing false statements.  The press release pointed out that data from the Innocence Project shows that 74 of 329 wrongful convictions that were overturned by DNA evidence involved faulty hair evidence.  The National Research Council report, “Strengthening Forensic Science in the United States: A Path Forward,” points out shortcomings in the way courts perform the function of gate-keeper against bad science, especially in criminal trials where defense challenges nearly always fail and prosecution challenges nearly always succeed.

How does this happen?  Witnesses wrapped in the mantle of the noble government servant, bearing opinions brimming with certitude, based on junk, carrying the aura of scientific certainty, are allowed to let it all fly on the flawed theory that the crucible of cross examination will ferret out the defects. In recent years it’s mostly been DNA evidence ferreting out the defects, long after damage is done.  But for a person wrongly convicted of OUI/drugs, based on oversold opinion evidence, nothing similar to developments in DNA technology will come along to point out the error, which will at least makes it easier to pretend it didn’t happen.

Maine’s Definition of “Under the Influence” Is Particularly Troubling Regarding Drugs.

Another issue that came up at the judicial conference involves the legal definition of what it is to be “under the influence” of intoxicants.  Most Law Court cases dealing with the definition refer to it as being to some degree “impaired” by intoxicants.  But in some Law Court cases, the Court has used the term “affected” interchangeably with “impaired.”  The distinction might have little to no significance in an OUI-alcohol case because any effect that alcohol has on a person, mentally or physically, or any effect it has on a person’s senses, arguably always manifests or is accompanied by impairment. In other words, alcohol seemingly never improves mental or physical functioning. But the same is not true of all drugs, or “intoxicants.”

What Are The “Intoxicants” (other than alcohol) That Cause a Person to Commit OUI by Driving Under their Influence?

Recall that the statute that defines “intoxicants” defines it to include all prescription drugs. Under that definition, even blood pressure medication is an “intoxicant.”  Confusingly, the term “drugs” includes, in addition to all prescription medications and other scheduled drugs, “any natural or artificial chemical substance that, when taken into the human body, can impair the ability of the person to safely operate a motor vehicle.” I say this is confusing, because Maine case law makes clear that impairment of a person’s ability to operate a motor vehicle is not required for OUI. Instead, if a person is impaired or affected to any degree by alcohol or a drug, that is enough to render the person “under the influence of intoxicants” under the OUI statute. But for substances other than alcohol or scheduled drugs, in order to be a “drug” the substance must be capable of impairing a person’s ability to drive safely.  For example, let’s look at caffeine.

Caffeine is a chemical substance. Is it capable of impairing a person’s ability to drive safely?  If ingested in a large enough amount, it is probably capable of inducing a heart attack, which would seriously impair the ability to drive safely.  Caffeine is a central nervous system stimulant, which places it squarely within one of the 7 categories DRE’s are trained to look for as a source of impairment.  In fact, the section of the DRE training manual that deals with CNS stimulants refers to caffeine as a “commonly-abused CNS stimulant.”  The manual recites that some Monster energy drinks contain 240 mg. of caffeine, that Red Bull contains 80 mg. (which the manual points out is less than an 8 oz. cup of brewed coffee), and that, “The abuse of energy drinks has been implicated in numerous hospital admissions and impaired-driving cases.” Inasmuch as caffeine is a CNS stimulant, DRE’s are on the lookout for it as a cause of impairment while driving. However, central nervous system stimulants can actually improve a person’s mental or physical performance. Judical conference panelist Dr. Simone provided an example of this when she discussed military pilots who are given controlled amounts of a CNS stimulant to improve their performance on very long flights. You might have experienced it yourself, when you drank coffee to help keep you alert on a long or late night drive. It clearly affects you, but does not impair you.

What Is the Definition of “Under the Influence” and Where Does it Come From?

While the crime of OUI is defined by statute as “operating while under the influence of intoxicants,” and while the statutes define “intoxicants,” and “drugs” as a subcategory of intoxicants, the statutes do not define what it means to be “under the influence.”  That is instead defined by case law, which sometimes uses the term “affected,” and sometimes uses the word “impaired” to describe the condition.  Again, when it comes to alcohol, it may well be that any mental or physical effect it produces is always accompanied by some degree of impairment. But what about all the prescription drug “intoxicants” people take to improve their otherwise disordered mental or physical functioning, mood, etc.? If those prescription medications are serving their purpose, the person who takes them is “affected” by them. If the drug has no mental or physical effect, what would be the point of the doctor prescribing it or the patient taking it? DRE evaluations aside, if the test for being under the influence is whether a person is affected to some degree, mentally or physically by a drug, the crime is committed anytime a person operates a motor vehicle while affected to some degree, mentally or physically by a drug – regardless whether the drug is impairing the person or not.  So, is that all it takes to violate the OUI statute in this State?  Let’s take a look at some cases.

Some Maine Cases on “Impaired,” “Affected” and “Senses.”

In State v. Bean the defendant was convicted of OUI under a statute that defined the crime as operating a motor vehicle “while under the influence of intoxicating liquor or drugs.”  Drugs were not an issue in Bean.  The evidence was that he drove under the influence of alcohol. The trial judge instructed the jury that “under the influence” of intoxicating liquor “covers any abnormal physical or mental condition which deprives that person of the clearness of intellect and the control of himself that he would otherwise possess.” Later in the instructions, the judge told the jury Bean could be found guilty if they were to find that alcohol had “any effect” on him. Note the use of the word, “effect.”

Bean was convicted. He appealed to the Law Court, complaining it was improper for the judge to instruct that he could be convicted on proof that he drove when alcohol had “any effect” on him. The Law Court found no error in the instruction and upheld his conviction.

In reaching its decision, the Court ran through the history of Maine’s OUI statutes, from 1911 on. In doing so, the Court focused on whether the Legislature, when it passed the controlling version of the statute, had intended to depart from the standard under predecessor statutes that defined operating under the influence as operating while impaired “however slightly.” In other words, the focus in Bean was on the degree to which a person had to be impaired to violate the OUI statute. The Court expressed its bottom line conclusion as follows:  “For a defendant to be convicted under 29 M.R.S.A. §1312, he need only operate a motor vehicle in this state while under the influence of intoxicating liquor or drugs to any extent.” Again, this conclusion led the Court to uphold the trial court’s instruction that the jury could find Bean guilty if they found alcohol had “any effect” on him while he was driving.

Because the “any effect” instruction properly conveyed the meaning of “under the influence,” and because the Court clearly stated that a person violated the OUI statute at issue in Bean by driving while under the influence of either alcohol or drugs to any extent, does this mean a person necessarily violated the same OUI statute if he ingested drugs that had “any effect” on him when he drove?  Is there anything in Bean to suggest that the standard regarding alcohol is “affected” but that a separate standard of “impaired” applies regarding drugs?  Bean suggests nothing of the sort, and in the wake of Bean, courts routinely instruct juries that OUI is committed when a person operates a motor vehicle while his or her faculties are “affected” to any degree, however slightly.

Before we leave Bean, the case stands for one other proposition; that the affect or impairment necessary for OUI is not impairment of the ability to operate a motor vehicle safely. In running through the history of Maine’s OUI statutes, the Court made it clear that an amendment to the OUI statute in 1919 (the year before alcohol prohibition began nationally) ended any such requirement, in favor of a standard that defined “under the influence” independently of the ability to operate a motor vehicle safely. Whatever effect alcohol or a drug must have to run afoul of the OUI statute, it does not need to impair the person’s ability to operate a motor vehicle safely.

More recently, in State v. Webster, the Law Court dealt with whether a trial judge erred in denying a motion to suppress asserting that the arresting officer lacked probable cause to arrest Webster for OUI. The trial judge found that Webster passed all field sobriety tests.  Nevertheless, the judge found that other observations established probable cause for Webster’s arrest. The Law Court upheld the trial judge’s decision, pointing out that probable cause for an OUI arrest has a “very low threshold.” In this connection, the Court quoted State v. Worcester as establishing that operating under the influence means operating when a person’s senses are “‘impaired however slightly’ or ‘to any extent’ by the alcohol that person has had to drink.” Then, without citing any authority for the proposition, the Webster Court stated, “For there to be probable cause to arrest someone for operating under the influence, therefore, an officer must have probable cause to believe that the person’s senses are affected to the slightest degree, or to any extent, by the alcohol that person has had to drink.” [emphasis added].

Because probable cause to arrest requires probable cause to believe a crime has been committed, and because the officer had probable cause to arrest Webster once he had probable cause to believe Webster’s senses were affected to the slightest degree, it must be true that OUI is committed if a person drives while the person’s senses are affected to the slightest degree by intoxicants. Therefore, the Law Court has instructed us that a person drives under the influence when the person drives while affected to any extent, mentally or physically, by intoxicants (State v. Bean) or while the person’s senses are affected to the slightest degree by intoxicants (Webster).

I happen to think the use of the word “affected,” in connection with under the influence, is a mistake – a loose use of terminology that should be tightened up.  I happen to think the word that should consistently appear in the case law, instead, is “impaired.”  But that’s not how it is.  And since that’s not how it is, we have a standard of “affected” to any slight degree defining what it means to be “under the influence of intoxicants”- which is ridiculous.  It’s ridiculous because many “intoxicants” in the form of prescription drugs have absolutely zero to do with impairment, let alone with the safe operation of a motor vehicle, and in fact their only effect is to improve physical or mental condition. Yet these “intoxicants” affect their users.  So, under an “any effect” standard, their prescribed users violate the OUI statute when they drive while using.  And when a person’s conduct violates a criminal statute, the person commits the crime.

You might think this is nothing to be bothered about, because nobody is ever going to be prosecuted for being affected by their blood pressure intoxicant – oh, excuse me, their blood pressure medication – while driving.  And you might be right about that.  But if that’s true, it’s only because police and prosecutors will choose not to enforce the law against particular people who violate it.  Not only do police and prosecutors sometimes exercise discretion not to enforce certain laws against anybody at all, but in this instance, the law so nearly sweeps everyone into its scope that they can pick and choose whom to pursue. Ah, glorious is the rule of law…

What Might be Done to Fix This?

We might say the word “affected” has only been used by the Law Court in the context of OUI-alcohol cases where “affected” amounted to the same things as “impaired.”  We might therefore say the term “affected” is limited to that context, and does not apply in the context of intoxicants other than alcohol, namely “drugs,” where use does not necessarily impair every time it affects.  If that is true, the word “affected” should not be used in jury instructions in an OUI-drugs case. But, at this point trial judges are instructing in terms of “any effect” and “affected,” whether the case involves OUI-alcohol or OUI-drugs, because they construe Law Court cases as supporting that instruction.

Isn’t it crazy to criminalize driving while affected by non-impairing prescription drugs?  If so, why do we do it, and how might we undo it?  For one thing, the Law Court could use its next case discussing “under the influence” to acknowledge its loose use of terminology in the past and to declare that to be “under the influence” of an intoxicant in fact means to be to some degree “impaired,” not merely “affected.”  Or, the Legislature could act to define “under the influence” (the way it has specifically defined “intoxicants” and “drugs”) to mean “impaired to some extent by intoxicants.”  But in the meantime, lots and lots of unimpaired people will continue to commit the crime, and law enforcement will pick and choose those to arrest and charge by a standard other than the standard set by the statute defining the crime (as interpreted by the Law Court). In other words, if you’re only affected but not impaired by a prescription drug, you’ll probably get away with it. But if your medicine is marijuana, look out, because law enforcement is gunning for you.

Why Would Use of Marijuana be a Problem Even Under a Clear “Impaired” Standard versus an “Affected” Standard?  Why Do OUI-Marijuana Cases Point up a Problem Even with an “Impaired” Standard that is Unconnected to Impairment of the Ability to Operate a Motor Vehicle?”

First of all, it might be that marijuana is like alcohol in the sense that any effect it produces is always accompanied by some degree of impairment. That seems to be the opinion of panelist Dr. Simone, as a toxicologist.  Simone tells us that executive functioning – the ability to focus, divide attention, multitask, etc. – is always affected by cannabis use, even in the most practiced of users. And when she says the executive function is always “affected,” she means it doesn’t work as well, as in, it’s “impaired.” Which means if you were to be charged with OUI-marijuana, even if you were a medical marijuana user with a very high tolerance, and even if your blood test revealed only a small amount of THC (say 1 ng./ml.), if Dr. Simone were asked, she would likely say your executive function is fact impaired by that, however slightly, but impaired nonetheless. And marijuana cannot be singular in this way.

The same must be true of certain other types of prescription drugs (some CNS depressants or narcotic analgesics, for instance), that they always have some mentally or physically impairing effect, however slight, when taken as prescribed.  Would a toxicologist say so?  If so, that’s a problem for people who use those drugs as prescribed, even under an “impaired” standard as long as that standard requires no proof that the slight impairment of executive function at issue in any way impairs the person’s driving ability.

Maine law is clear that it’s no defense that a drug that is impairing you (to any degree however slightly) while you drive is prescribed to you, even if you have taken it exactly as prescribed. Might a prescription drug’s impairing effect be so slight that it does not affect a person’s ability to drive a motor vehicle safely? Dr. Simone’s comments suggest this might be the case.  She talked about a study of airline pilots that detected lingering effects on their executive function 24 hours after marijuana use. These impairing effects were very subtle, not likely detectable by what Dr. Simone referred to as the “crude tools” at a DRE’s disposal. But these impairing effects have been detected by people using more sophisticated tools, drilling down more deeply. So toxicologists are aware that such subtle impairment accompanies cannabis use, always, in everyone.  What does that say about a daily cannabis user under Maine’s OUI standard?  And again, what Dr. Simone tells us about impairing effects of marijuana that are present in all users must be true of other prescribed drugs – marijuana cannot be the only drug that always produces some slight, subtle mental or physical impairment in all users along with whatever positive effect it has.

Regarding Marijuana OUI’s, Would It Clear Things up to Set a Per Se Level of Blood-THC, Akin to the .08 Standard for Alcohol Level? 

With alcohol, there is broad consensus that nobody, no matter how practiced a drinker, can safely operate a motor vehicle at the level of .08% or more. In the debate over setting a per se level of blood-THC to define a per se crime of OUI-marijuana, there is no consensus on what THC level impairs everyone’s ability to operate a motor vehicle safely. But note that the debate is over a THC level that per se impairs a person’s ability to operate a motor vehicle safely. This is the standard for DUI in most other places, but it is not Maine’s standard.  Maine law is only concerned with impairment (or effect) to some degree, however slight, unconnected to ability to drive safely.  Other jurisdictions might be concerned about establishing a per se level (say 5 ng./ml, for instance) both because it would criminalize the conduct of a practiced user whose ability to drive is not impaired and because it would make it easier for a person to escape conviction if she were in fact impaired but tested below the per se level.  Although Maine is concerned with the latter, it isn’t much concerned with the former, because it doesn’t get hung up over impaired driving ability.

If Maine were to set a per se THC level above zero, that would hamper the State’s ability to pursue an OUI-marijuana case in which the person’s lab results show a THC level below the cut-off. Remember, at present Maine might choose (and has chosen) to pursue cases with a lab result showing no THC or metabolite in blood or urine, based on a DRE’s opinion and a chemist’s and/or toxicologist’s explanation of why the negative result might be consistent with impairment. And if all that is found is some detectable amount of a THC metabolite in a urine sample (maybe from use a week before), it can be pitched as damning corroboration of the DRE’s highly-honed analytical skills. A per se level of 5 ng./ml would put a serious kink in such prosecutions.  For that reason, law enforcement might not be interested in setting a number above zero here in Maine.  Also, without a per se level, police and prosecutors are able to trot-out OUI cases with miniscule blood-THC levels, and even very little in the way of indicia of impairment, using toxicologist testimony about impairment of executive function — minor, slight, and difficult to detect with the crude tools at a DRE’s disposal, but always accompanying ingestion of THC.  Which is why marijuana users who drive in Maine might be wise to be very afraid.

How Low Will They Go, Drilling Down for Subtle Impairment?

Crime in Maine has declined 44.5% since 2011. Nationally, crime is way down from its 1991 peak of 14,872,900 index crimes to a 2018 level of 8,441,110 — a 43% decline.  Homicides and gun violence are way, way down as part of this trend.  Yet many people have no idea of these facts. They think crime, especially gun violence, must be at a peak. Something similar is true of OUI’s in Maine.  According to statistics posted on the Maine BMV’s website, in 2000* there were 9,878 OUI arrests in Maine. In 2018, there were 7,538. That’s nearly a 24% decline over that period.  But at the same time, moving in the opposite direction, the percentage of those arrested for OUI who are tested with an alcohol level below 0.08% has risen.  In 2003, 1,428 of 7,975 people age 21 and over — 17.9% — who took an alcohol test for OUI tested below .08%.  In 2018, 1,473 of 5,936 people age 21 and over — 24.8% — who took an alcohol test for OUI tested below .08%.**

Some who tested below .08% were no doubt charged with OUI-drugs, but the vast majority were not. Police are simply making more arrests on thin evidence. As the number of people driving under the influence of alcohol declines, police are digging deeper and deeper for arrestees. There is an industry aspect to police work. And an industry needs business to sustain itself and grow. So expect law enforcement to make the case that a grave, inadequately addressed danger lurks on the roads in the form of drugged drivers. And expect them to push for a lower per se alcohol level too, below .08%. In fact, panelist ADA Mador pointed out that Utah has already become the first state in the U.S. to lower its per se alcohol standard for DUI to .05%. Which is consistent with panelist Dr. Simone’s observations that impairment exists below .08% but that a political decision was made to set the per se standard at that level.  It’s also consistent with the NTSB’s proposals for “Reaching Zero” — the total elimination of impaired driving through reduction in the per se alcohol level and use of high visibility police tactics, including the recommended administering of breath tests without suspicion (which they lament might present 4th Amendment problems here in America) and/or the use of passive alcohol detection sensors and on-the-spot license confiscation.

Subtler and subtler becomes the impairment that defines the crime, especially when there’s no need for impairment of driving ability. Expect the law enforcement industry to lobby our Legislature hard for these changes, horror stories in-hand. And expect law enforcement to lobby the federal government for additional funds, for more officers and more programs for specialized enforcement details. Think what a huge law enforcement dragnet it will take to ferret out those needles in the haystack if we do get down to the last few impaired drivers!  Especially when we reach zero, we’ll need massively ramped-up patrols to be sure there isn’t one more hiding somewhere.

If the rate of OUI arrests drops by another half, not only the marijuana users and the social drinkers should look out. Prescription drug takers had better look out too, because the law enforcement industry will never shrink.  It will always be looking for its next meal.  There’s money to be made and power and control to be had stoking fear of public scourges that only the fear-stoker can save us from, if only we’ll give them the necessary money, and power, and control.

I come bearing witness to things that lie on the road ahead.


Related Post As The Problem Hits Close to HomeRichard Tanguay Vindicated of Driving School Bus Under the Influence – No Alcohol, No Drugs.



* Year 2000 statistics are no longer posted there, but I have them from a previous time.

** Correction.  In an earlier version of this post, I had the percentage of 2018 OUI arrestees who tested below .08% at 39%.  That is an error.  In the BMV’s “Blood Alcohol Level Summary” statistics for 2018, they blend test “refusals” into their overall number of those tested with an alcohol level below .08%.  This misleadingly inflates the number of cases that appear in the <.08 column.  In past years, the BMV extracted test “refusals” from the numbers reported in the <.08% column (in 2003, for instance).  In reporting the numbers and percentages above for years 2003 and 2018, I have extracted those under age 21. Drivers under age 21 operate under a zero tolerance license condition.  We should therefore expect them to be arrested on probable cause that their alcohol level is well below .08%.  Blending tested arrestees under age 21 in with tested arrestees 21 and over distorts the overall picture as regards people subject to an excessive alcohol standard of .08% or more who test below .08%. For that reason, I have removed the under 21 group from the numbers.