Is DUI Different If There’s No Alcohol?

Marijuana Bill DecriminalizationNH DUI – For many years, the consequences of impaired driving have been well understood by the general public. People seem to be aware of the 0.08 BAC limit for alcohol, and the fact that most DUI investigations will involve testing your physical abilities and have that critical “blow or don’t blow” moment. But what about when there’s no alcohol involved?

In 2013, the NH DUI law changed to make it clear that basically any substance that can impair a person’s ability to drive can be the basis of a DUI charge – whether prescribed or not. Around the same time, NH passed a comprehensive law allowing people to use marijuana for therapeutic purposes. It took a while to get the dispensaries going, but we’re now seeing patients and providers more willing to get a marijuana card and buy some.  We’re also in the middle of a crisis with prescription opiates that have a severe impairing effect on a person’s ability to drive.

How are these people treated when police suspect impairment?

For starters, it’s a tough task for an officer to know what’s going on when he or she observes behavior indicative of impairment. Unlike alcohol and marijuana, many impairing substances do not have an odor associated with consumption.  This makes it hard to differentiate a person who is on pills from a person who might be exhausted or dehydrated. Then, even if there is some connection between the observed behavior and an impairing substance, they have to test for it. The current field sobriety tests are not adequate for determining impairment for anything other than a central nervous system depressant, such as alcohol. There have been attempts at developing other tests for stimulants, cannabinoids, or other classes of drugs, but none have gained nationwide acceptance in the scientific community. None of this will deter the police from pulling a person they suspect of impaired driving, so it’s importance to have a lawyer that can parse through your case and develop the appropriate defenses.

Then, unlike alcohol, there is no breath-based test available for drugs (yet). Instead, someone suspected of drug impairment will be asked to take a blood test. This is critical because as of right now a person who submits to a blood test will not lose their license so long as there is no alcohol found. That’s true even if one or more drugs —in any amount—are found. On the other hand, a valid refusal will trigger a license suspension no matter what. That’s the case even if the officer admits that the driver had nothing to do with alcohol.

The final difference is that there is no per se limit for levels of drugs in the blood. In a DUI drug case, the State has to determine if the level of drug in the blood crosses over from a “therapeutic” level into an “impairing level.” In other words, there’s no magic number that makes a person guilty the same way the 0.08 does with alcohol. Different people will be affected differently by the same level of drug in the blood stream. For example, an experienced marijuana user might not experience any of the effects of the drug with 20 nanograms of THC in the blood, when a first-timer would feel like he’s in a Cheech and Chong movie.

This can be a complicated defense to mount and will require experienced counsel to make it work. Before you  go to court, make sure you’re aware of all the options available to you. To get started, call us at Douglas, Leonard & Garvey, P.C., 1-800-240-1988 or fill out our online contact form.


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