EagleTribune.com, North Andover, MA

January 13, 2013

Expanded DUI law in effect in N.H.

Prescription, OTC drugs now included

By Alex Lippa
alippa@eagletribune.com

---- — A new state law has made it tougher for people who drive under the influence of drugs in New Hampshire.

The law, which went into effect Jan. 1, has made driving impaired due to over-the-counter and prescription drugs illegal.

“There was a loophole in the language which did not include many drugs which impair you to drive,” said State Police Sgt. Matthew Shapiro, commander of the drug recognition program. “People could be 10 times more impaired and not be prosecuted.”

But local police officials said the change in the law won’t change how they go about enforcement.

“It’s really not any different. We will still do field sobriety testing, still conduct an investigation,” Windham police Capt. Mike Caron said. “It absolutely will not change the way we operate.”

But defense attorney Mark Stevens of Salem, who specializes in DUI cases, is advising his clients to be careful about what they say to police if pulled over.

“Even if you pass a sobriety test,” Stevens said, “if your eyes look red and you say you have a cold and you took NyQuil or Sudafed, you can be arrested for that.”

Not so, police officials say.

“We still need articulable suspicion for a stop,” Caron said. “We need probable cause and evidence of some influence.”

Shapiro said the law simply ensures all drivers who are impaired will be prosecuted.

In Massachusetts, drivers can be prosecuted for driving under the influence of alcohol, narcotics, marijuana, hallucinogenics, depressants like barbituates and stimulants like amphetamine. The law does not specifically cover over-the-counter or prescription medicines.

In New Hampshire, the law previously only punished drivers who drove under the influence of controlled drugs. Now, if it is determined that over-the-counter medicine such as antihistamines or ibuprofen caused the driver to be impaired, that’s cause for arrest.

“These over-the-counter medicines have cautions that say this may cause drowsiness and that you should not be driving,” said Rep. Gary Azarian, R-Salem, who voted for the new law. “It’s a safety issue. If you take enough of it to be impaired, you shouldn’t be driving a motor vehicle.”

Shapiro said the law is not meant to punish those who take prescribed doses of medication.

“We are talking about fixing a problem which previously existed,” he said. “We are not widening the net to people who aren’t impaired.”

Police are glad to have this new tool because of the increase in impaired drivers on the road. But, from a practical standpoint, their enforcement will be business as usual.

“There has been a steady, obvious increase in drivers impaired by prescription and over-the-counter drugs,” said State Police Lt. Chris Wagner, commander of Southern New Hampshire’s Troop B.

In the last three years, he said, 41 percent of all fatal crashes have been caused by an impaired driver.

“We’re going to enforce the law as it now stands,” Wagner said. “This comes down to impairment.”

State police aren’t going to be pulling drivers over to see if they’ve taken their cold medicine, he said. Bt when drivers are stopped for erratic behavior behind the wheel that could be a talking point with the trooper.

The message, Wagner said, is if medications are affecting a driver’s performance, there could be consequences.

“It is wrong,” he said. “It is now illegal.”

State police are regularly watching for impaired drivers, too, because of what they are seeing on the highways.

“There is no shortage of these drivers out there,” Wagner said. “We are targeting them aggressively.”

Increasingly, troopers are receiving training to identify drivers who are under the influence of medications, rather than alcohol or illegal drugs. They are taught to evaluate what might be affecting a driver besides alcohol, such as a depressant or stimulant.

Shapiro said drivers should not be affected much by the law change, as long as they aren’t impaired.

“I’m sure most people didn’t know the difference between what was and wasn’t a controlled drug,” Shapiro said.

State police will continue to conduct field sobriety tests and ask drivers to submit to Breathalyzer or blood tests when warranted.

“It is a benefit to law enforcement to enforce to the fullest extent against an impaired driver,” Wagner said.

Local police agree.

“We see prescription drugs as a huge issue,” said Caron, the Windham captain. “We’re seeing a lot more cases.”

Deputy Salem police Chief Shawn Patten concurs.

“We’ve probably seen an increase in the number of impaired drivers under the influence of something other than alcohol, but the bulk are alcohol,” Patten said.

But the law change will help, he said.

“Given the use of chemical substances, natural or synthetic, including K2 and other fake cannabinoids, it’s certainly a plus,” Patten said.

Salem police probably would ask what medications drivers are taking, regardless of the change.

“Our officers are out there, trained to take impaired drivers off the road,” Patten said.

Police emphasize drivers still have rights to submit to various sobriety tests and that officers must have cause to initiate a stop.

Salem police prosecutor Jason Grosky said when a person is suspected of driving under the influence, police seek blood tests to determine what is in their system. The blood work is then sent to the state laboratory to be analyzed.

Stevens still believes that there are problems with the law.

“Isn’t spinach a natural substance?” Stevens asked. “It seems to cover everything under the kitchen sink. The intent of this law originally was to get drunks off the road and now people are going to be arrested for driving under the influence of Robitussin. It’s nutty.”

There are other changes in the law, too.

Anyone charged with a DUI must now be arraigned within 14 business days.

Those who are charged have to undergo a screening test to determine if they have a substance abuse problem. If it is found that they do, they must attend an education program or have an individualized service plan.

Staff writers John Toole and Jo-Anne MacKenzie contributed to this story.