Interviewer: Do you find drug cases easier to defend because there is uncertainty or harder because there is an assumption that their thought process is impaired no matter what the level?
David: No, they are easier to defend. From my point of view, you have to make sure they actually have proper evidence as opposed to just an opinion. For example, a blood test of someone who smokes marijuana will test positive for the presence of THC a month after the fact.
A person might have smoked some dope two or three weeks ago. Great, that registers. However, a distinction has to be made between the inert THC and the active THC. That requires a person from the New Hampshire state laboratory to come to court to testify about the levels.
I can say there is a lot more for the defense lawyer to talk about in a driving under the influence of drugs case as opposed to driving under the influence of alcohol.
Interviewer: With drug cases, does the talk include prescription drugs, therapeutic levels, taking them as prescribed, tolerance and many more factors?
David: Yes, it does. I did a case a couple of years ago where my client was working as a driver for DHL. She made the mistake of making a left hand turn in front of a motorcycle that she did not see. There was a horrible collision.
They were afraid the guy on the motorcycle was going to die. So they drew blood under some statute that purports to allow them to draw blood in serious accidents. However, at the scene the police had no idea that she might be under the influence of anything. So they did not do any field tests or make usual observations such as slurred speech. They did not do any of that.
When the blood test came back, it came back for a significant level of methadone. So the police did not go forward with the DWI at that point. They instead filed a request with the Department of Safety for a medical safety review hearing. We were invited to motor vehicles for this hearing.
The clinic where the person was getting her daily dose of methadone had a variety of records which documented the levels she had been at various times and how often they tested her. We were able to convince the hearings officer that she was within the therapeutic levels.
Therefore, they did not suspend her driver’s license. Furthermore, a DWI prosecution with serious bodily injury, which would have been a felony, never happened.
Interviewer: Do you expect the number of these kinds of cases; drug prescriptions and the legal drugs, to grow over time?
David: Yes, probably. Although, I am sure alcohol will remain the most common intoxicant.