The Maine legislature will soon be considering a bill to enhance the government’s ability to prosecute folks for operating under the influence of drugs.
A drug is broadly defined as any substance than can impair one’s ability to safely operate a motor vehicle. Expect that definition to change to any substance that can impair one’s mental or physical faculties (that will mimic our current standard for OUI due to impairment caused by alcohol consumption).
The proposed legislation will set per se limits for all common drugs of abuse— all drugs, whether prescribed or not–whether “recreational” or therapeutic and even over the counter medications (OTCs).
Impairment Levels for Operating Under The Influence
In Maine you are considered to be operating under the influence if you’ve operated or attempted to operate a motor vehicle with an excessive amount of a proscribed substance in your system. In alcohol cases that limit has been set at 0.08 . That number was agreed upon by a consensus of toxicologists around the world. It has scientific backing, although most toxicologists agree that some level of impairment occurs at above 0.05.
The proposed legislation sets per se limits on drug concentrations without any such scientific consensus. There simply is no scientific basis for setting per se limits on drug concentrations. Wild variations occur when drugs are involved.
For example: A person lawfully prescribed Oxycodone for ten years may experience no impairment taking a prescribed does of 20 mg per day; a new user of that same dose, unprescribed, will definitely be impaired.
While tolerance for alcohol may vary from person to person, there is a consensus among toxicologists regarding dosage amounts that cause impairment of normal baseline mental or physical faculties. There are simply too many variables when dealing with drugs, illicit or prescribed.
The proposed legislation seeks to criminalize any operation of a motor vehicle for anyone with a “detectable” amount of drugs, prescribed or otherwise, in his “system” if a “drug recognition expert” (DRE) opines that the subject is impaired.
What is a Drug Recognition Expert (DRE)?
First, the term DRE is statutorily ascribed to certain officers. They are not trained by neurologists, physiologists, psychiatrists, pathologists or anyone else educated and trained in the field for which the term “expert” applies.
They are police officers who receive a week or so of training, not four years of post-graduate education in this field. They are trained by other cops who were trained by other cops. They are not experts by any stretch of the imagination.
Example: DRE will check subject’s blood pressure. If BP is higher or lower than “average”, DRE will draw a conclusion as to whether or not the subject is “under the influence” of a drug (stimulant or depressant).
The obvious problem is that the DRE doesn’t know the subject’s baseline. What is his normal BP? Same happens when DRE takes subject’s pulse and draws conclusions therefrom. The so-called expert draws conclusions without knowing the subject’s baseline, his normal pulse. Yet this is the kind of information that forms the DRE’s opinion of impairment due to the consumption of drugs. BP and pulse rate are part of the DRE protocol.
Second, the proposed legislation is in a quandary of whether to allow urine samples to be used or to require blood samples to be required. Urine samples are useless. Urine analysis is a history lesson. No more, no less. It is an analysis designed to look for metabolites of drugs that may have been ingested days, weeks or months earlier. The Society of Forensic Toxicologists (SOFT) Guidelines 2006 , Chapter VI, states that urine analysis bares no useful correlation to impairment by drugs. If the government uses blood analysis, again, there are no generally accepted levels that relate to impairment.
The Bottom Line
Neither threshold limits of detectable amounts of drug concentrations or DRE assessments are accurate enough, let alone proof beyond a reasonable doubt, to allow the government to prove an accused guilty of operating under the influence of drugs. In certain cases, the proof beyond a reasonable doubt will be obvious. But, under the proposed legislation, many innocent people will be convicted.
For more information on the current status of OUI/DRUG laws and the proposed legislation, call me for a free consultation at 207-879-4000. Our Portland office has moved to 1250 Forest Avenue, Suite 10, Portland, Maine 04103.
Disclaimer: This article is intended to provide general, not specific, information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author(s) and the reader(s).
