DUI — Driving After Inhaling — And Expert Testimony

Advanced Roadside Impaired Driving Enforcement (A.R.I.D.E.) is the forefront of drunk driving enforcement in the age of legal and medical marijuana. State Troopers are trained to identify impaired drivers by substances other than alcohol. These officers receive training on Standard Field Sobriety (“FST”) and other field tests, and eye tests involving the convergence, pupil size, and reaction to light as well as methods of determining ingestion of the substance and classification of drugs (illegal and legal) by the type of impairment.

DUI, Pot, Car Keys

Typically these courses are 16 hours and “train” officers about drugs in the human body, heighten their observation of suspects eyes, and instruct them on seven drug categories and the effects of drug combinations.

Courts are pushing back against the junk science these courses to teach police officers. Courts are limitting the admissibility of field sobriety tests and officer conclusions of impairment based upon drivers “passing” or “failing” a FST.

Commonwealth v. Gerhardt, 477 Mass. 775 (2017) is the first case in the nation to address this issue. In this case the court considered the admissibility of FSTs where a police officer suspects that a driver has been operating under the influence of marijuana. The court observed that the three standard FSTs — the “horizontal gaze nystagmus test,” the “walk and turn test” and the “one leg stand test” — were created to assess motorists suspected of operating under the influence of alcohol. The court found that the tests were developed specifically to measure alcohol consumption as there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%.

By contrast, the court noted in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol consumption may be better measures of marijuana intoxication.

The lack of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean, however, that FSTs have no probative value beyond alcohol intoxication. Rather, the court concludes that, to the extent that they are relevant to establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer conducting the assessment.

The introduction in evidence of the officer’s observations of what will be described as “roadside assessments” shall be without any statement as to whether the driver’s performance would have been deemed a “pass” or a “fail,” or whether the performance indicated impairment. Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.

This decision comports with the my prior blogs on drug recognition expert testimony and the lack of scientific basis for such. Please call me to discuss your legal matter.

Alcohol Use Disorder — Continuing Condition and Safe to Practice

Many professionals consume alcohol in a moderate and temperate manner. Reasonable, social alcohol consumption that results in a driving under the influence criminal charge is an unfortunate event. The criminal consequence and interactions with the justice system are necessary impediments to excessive drinking.

However, reasonable social drinking does not mean licensed professionals suffer from a drug and alcohol addiction or impairment that is both continuing and rendering the professional unsafe to practice their profession. It is these two statutory requirements the PHMP, PAP, and PNAP, ignore when enticing and scaring licensees to enroll in the PHMP monitoring program. PHMP’s threats and intimidation (PHMP Scare Tactics) when combined with licensees’ anxiety and stress from the criminal case create the perfect storm for licensees to make ill-informed and legally incorrect decisions regarding their professional license.

A recent case is a perfect example of why licensees should hire counsel upon receipt of any PHMP paperwork. My client hired me after she had attended a PHMP assessment and, having rejected it, also attended without counsel a Mental and Physical Evaluation. The Board MPE expert concluded she suffered from an alcohol use disorder that required monitoring for her to safely practice. She rejected the DMU/PHMP and fought her case. Luckily for this licensee she hired me.

In all impairment cases, the Practical Nurse Law, 63 P.S. ยง651-667.8, authorizes discipline if there is sufficient evidence in the record to demonstrate that licensee is addicted to alcohol, that any such dependence is continuing, and any such dependence prevents her from practicing practical nursing with reasonable skill and safety to patients. Absent any one of these factors and the Commonwealth loses its cases. Translated into English, the Commonwealth must prove a professional’s alcohol use condition existed, is continuing, and results in the professional’s inability to practice their profession with care and safety.

During cross-examination of their expert I exposed the inaccuracies and legally deficiencies of his opinion. The expert conceded he did not request, and thus did not review, my client’s medical records, employment records, performance reviews from her current employer, and did not contact reference persons (including probation officer) my client provided. At the hearing the expert disclosed he did not possess any factual information about my client’s work performance, such as employer complaints, or any evidence indicating that her use of alcohol has ever affected her work or resulted in her being requested or directed to submit to alcohol and/or drug testing while at work.

As with many of my cases, prosecutors attempt to satisfy their burden of proof through expert testimony that only says the professional is able to practice practical nursing with reasonable skill and safety to patients as long as she is monitored. The usual language is “I believe she is impaired and that it is unsafe for her to practice nursing with requisite skill and safety without monitoring. As such, experts routinely recommend monitoring based on the need for objective verification of a licensee’s abstinence from alcohol. However, this is not the burden of proof.

A review of the evidence showed this licensee was abstinent for 15 months since the MPE, had eight months of sobriety between the 2016 DUI and the examination, and accumulated years of continuous sobriety between 2008 and 2016. As of the date of the hearing my client was in full sustained remission. As well the expert had no information or documentation suggesting that my client relapsed since the 2016 DUI, given that the testing he ordered for her in February of 2017 came back negative. The Commonwealth could not meet its burden of proof of a continuing dependency element.

Even absent a continuing alcohol dependency, the Commonwealth must still also prove that any illness or dependency, continuing or otherwise, has prevents the licensee from competently practicing nursing with reasonable skill and safety to patients. Here is where the expert testimony was clearly deficient.

The Board’s expert only found Respondent unable to practice nursing safely unless she is monitored. That is not the law. Recommending monitoring as a safety “precautionary measure” must be supported by the evidence. Here the expert did not avail himself of certain sources of information, whose names and contact information my client provided, to corroborate or counter the statements she made by during the examination.

Rather, the expert testified that “when someone gives you a list of people to call, 99 percent of the time they give glowing report, and I can’ t believe what they tell me… and .it may be true, but I can’t base my opinion on that.” Yet, when asked directly, the expert could not cite any evidence that, as of the hearing date, my client was unable to practice nursing with reasonable skill and safety to patients.

Please call me to discuss your case and pending prosecution.

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