10. DWI Drug Detection
There are three things the State must prove beyond a reasonable doubt in order for you to be found guilty of DWI - Drugs. That you were driving on a public way while under the influence of a controlled drug. The prosecutor will often have an expert (DRE Drug Recognition Expert, or someone from the crime lab) testify as to how he believed you were operating under the influence. The DRE should have followed the NHTSA guidelines and be a certified drug recognition expert who has used the 12 step process.
10.1 Overview
As previously discussed, in New Hampshire, to prove a DWI Drug case, the State must prove beyond a reasonable doubt the driver’s ability to operate a vehicle was impaired by a controlled drug. Many drugs are not controlled drugs.
Some police officers have training specifically related to drugs or DWI drugs. If the officer has only completed the SFT practitioner course, his main training on DWI detection of drugs is that VGN can be caused by drugs. His training would have indicated Field Sobriety Tests measure BAC and not drugs.
There are certain additional training programs offered to police to gain specialized knowledge in DWI Drug detection. Note, however, these programs are generally aimed at classifying a category of drugs, not specific drugs. Because the officer must prove a controlled drug, this can lead to reasonable doubt.
10.1.1 Various DWI Drug Detection Courses/ Training
There are numerous courses available for law enforcement officers who are seeking training in DWI Drug detection. Having completed the SFST training is generally a pre-requisite to the courses.
In order of least involved to most involved, some available courses are:
Introductionto drugged driving (Half day course)
Drugs that Impair driving (8 hours – This class is now a part of ARIDE)
Advanced Roadside Impaired Driving Enforcement (ARIDE) (16 hours – Includes the introduction to drugged driving course/materials)
Drug Recognition Expert (DRE) – (240 hour certification)
I have laid out this chapter by going through the courses and building on the information the officer receives in the less advanced classes. So, an officer who is a DRE will/should have all the information from the other courses. This is due to the layout of the courses building upon each other. (There are some exceptions to this, and I have tried to note them).
Practice Note: If you are charged with just DWI – Alcohol, and not DWI Drugs, this information can still be very useful if the officer has the drug training. Because alcohol is a drug, a CNS depressant, one would expect to see any observations made related to alcohol to also be present in CNS depressants. Further, the officer is typically given additional tools to use in these courses, such as additional FSTs. I always ask the officer why he did not do all of the other tests in order to make a more informed determination of guilt (or give the driver an extra opportunity to show he is not impaired).