, Newburyport, MA

February 1, 2013

DUI laws get stricter in NH

Tougher mandates in place for prescription, OTC drugs

By Angeljean Chiaramida

---- — Motorists in New Hampshire have more reasons to think twice about driving under the influence of any type of intoxicating substance.

Those convicted of DUI in the Granite State risk losing their license to drive permanently unless they comply with strict treatment mandates under a newly revised state law that went into effect Jan. 1.

According to Exeter, N.H., defense attorney Ryan Russman, the recent revamping of state law RSA Chapter 265-A left the penalty phase of DUI convictions pretty much the same.

But he said the extensive treatment requirements as well as the expanded definition of impairing substances, which now go far beyond alcohol and controlled drugs, represent a “major overhaul.”

Russman said not only could convicted defendants who don’t complete mandated treatment provisions never get their driver’s license reinstated, they could be required to serve jail time for being in contempt of court.

The treatment regulations apply to everyone, from first-time to repeat offenders.

As for the inclusion of prescription drugs in the expanded list of potentially intoxicating substances, both Russman and Haverhill defense attorney Gerard LaFlamme believe it casts too far a net and they foresee legal problems with the new definition.

“I’m not worried about the treatment portion of this because, ultimately, I think common sense will prevail and problems will be worked out,” LaFlamme said. “I’m more concerned that driving under the influence now includes prescription drugs. That concerns me the most because (state law enforcement authorities) are going to have a tremendous proof problem. They don’t have enough experts to testify in these cases now.”

Impairing substances

Previously, New Hampshire’s DUI statute listed only alcohol and “controlled drugs” in its definition of substances for which charges could be brought, according to N.H. State Police Sgt. Matthew Shapiro, who was involved in crafting the revision.

But Shapiro said many drugs that can affect a person’s ability to drive are not included in the federal list of controlled drugs, and it can take 15 years to get a drug categorized as “controlled.”

The new definition closed a loophole and now allows officers to arrest impaired drivers no matter what substance caused the impairment. Many officers, including Seabrook Detective Scott Mendes, believe the expanded definition is vital to protecting public safety.

According to the new definition, no person shall drive a vehicle or boat in New Hampshire while under the influence of “intoxicating liquor or any controlled drug, prescription drug, over-the-counter drug or any other chemical substance, natural or synthetic, which impairs a person’s ability ... “ or any combination of liquor and drugs with a concentration of .08 for those age 21 or older or .02 for those under 21.

Mendes said encompassing synthetic drugs was important to Seabrook. In recent years, officers pulling over erratic drivers have often found them high on synthetic drugs like those known on the street as bath salts and Spice. But the operators couldn’t be arrested for impaired driving under the former definition. Such was the case not long ago for Seabrook drug recognition officer Sgt. David Buccheri, who encountered a driver high on a synthetic drug, Mendes said.

“This kid was in pretty tough shape,” Mendes said. “No way he should be allowed to get behind the wheel.”

Shapiro said a lot of prescription drugs, like muscle relaxants and sleep aids, also impede the ability to drive, even though they aren’t “controlled” substances. Plus, he said there seems to be a never-ending supply of new illicit substances that become popular with the drug culture every year that can cause impairment, which is why the new definition includes such broad language.

Gas and propellants found in spray cans, for example, aren’t controlled substances, but huffing, or breathing in the gas, can produce mind-altering effects, Shapiro said. Many over-the-counter medicines can also cause problems for drivers if abused, he said.

“Taking one tablespoon of Vicks NyQuil might not be an issue when driving for some people,” Shapiro said. “But drinking a whole bottle, like some teenagers do at (parties), can cause impairment. You’re not supposed to be driving under the influence of anything that impairs your ability to drive.”

Russman worries the detection methods police use to judge sobriety are not sophisticated enough to protect defendants’ rights concerning substances other than alcohol, which most breathing and field sobriety tests are intended to detect, he said.

“I don’t believe the tools in place for law enforcement are sufficient to make the determination about impairment caused by drugs,” Russman said. “Who’s to say the amount of drug in a person’s system is the reason for a perceived impairment?”

Mendes, who is Seabrook’s police prosecutor, said when it comes to providing evidence to the judge to determine proof of impairment, the arresting officer plays a large role.

“Primarily, it would be the arresting officer’s experience and observations that we’d bring to court,” Mendes said.

Mandatory treatment

Under the revised law, the fines for first-time offenders found guilty of DUI remain the same at $500, with a $120 fee for penalty assessment. License suspensions are also the same, with a minimum of nine months loss of license to a maximum of two years, depending on the circumstances.

In the past, those convicted could earn their licenses back in 90 days if they completed the state’s 20-hour Impaired Driver Intervention Program, either in weekly sessions for $300 or a weekend program for $485, which includes room and board.

But even defendants who didn’t opt to complete the program could get their licenses reinstated at the end of the suspension period.

That’s no longer the case.

“Those people who think, ‘I won’t do the treatment; I’ll just wait out the suspension and get my license back’ are wrong. That isn’t going to happen any more,” said Patti Fowler, impaired driver intervention service coordinator for the New Hampshire Bureau of Drug and Alcohol Services.

“(Those convicted) have to complete the treatment program or they’ll never get their licenses back.”

Fowler acknowledges it’s going to take time for people to understand the new treatment regime.

For first-time offenders, within 14 days of conviction, they must be “screened” by a state-approved Impaired Drivers Care Management Program to determine if they show a propensity for substance abuse. The screening takes about an hour and costs $75.

If no problem is found, defendants then complete the 20-hour Impaired Drivers Education Program, after which license reinstatement is possible.

If the initial screening detects a likely substance abuse problem, the defendant must schedule a more extensive “evaluation” at a state-approved IDCMP within 30 days of conviction and complete it within 60 days, at a cost of $200. Upon a negative result, the defendant then must complete the 20-hour program for license reinstatement.

For those evaluated positive for existing or potential substance abuse, a service plan for more treatment and/or recovery support would be developed, at additional cost, in addition to the 20-hour IDEP program. Treatment and support services must come from state-approved licensed drug and alcohol counselors.

Currently, out-of-state convicted offenders must access Granite State-approved IDCMP providers for screenings and evaluations, Fowler said. There are now 17 sites throughout the state, with more possible in the future, she said. The closest sites in southeastern New Hampshire are in Epping, Portsmouth and Dover.

Massachusetts defendants required to undergo extended treatment may be able to access it from a Massachusetts-certified drug and alcohol counselor with appropriate approval.

Those convicted of subsequent DUI or aggravated DUI proceed directly to full evaluations, which must be scheduled and completed within specified time frames. The requirements of treatment will then be determined.

Mendes has little sympathy for anyone, including defense attorneys, protesting the complexity of the new provisions or costs involved. But he offers this advice.

“Those people who complain they can’t get to the approved providers, and that the treatment requirements are expensive, can alleviate their problems by just not driving under the influence in New Hampshire,” Mendes said. “This is a matter of public safety.”