Police see rise in drugged driving
Toolbox
By Peter Hirschfeld Times Argus Staff - Published: March 21, 2007
MONTPELIER – Driving under the influence isn't just about alcohol anymore, say Vermont's police officers.
The number of drivers charged with operating under the influence of illicit or prescription drugs has skyrocketed in recent years as law enforcement ramps up effort to curtail impaired drivers. But prosecution of those offenses is hampered by Vermont's drugged driving statute, according to some lawyers and police officers. So legislators are considering a bill (S.168) that would lower the evidentiary threshold necessary to win convictions.
"We've seen a dramatic rise in the numbers," says John Flannigan, public information specialist for the Vermont State Police. "It's a concerning figure, from a traffic safety perspective."
From 1995 to 2000, the number of drivers charged annually with drugged driving never reached double digits. Between 2000 and 2005, however, the number charged started rising.
In 2000, prosecutors filed 19 drugged driving charges. In 2004, Vermont courts saw 47 charges. By 2005, the number hit 63; and in the first half of 2006, 67 charges were filed against people allegedly caught driving under the influence of marijuana, cocaine, opiates, central nervous system depressants or other chemical compounds named in Vermont's drugged driving statute.
The number of drugged driving charges still pales in comparison to DUI-alcohol: more than 5,000 charges were filed for that offense in 2005.
Flannigan says an infusion of specially trained officers in 2005 have yielded the exponential increase in arrests.
"We have six police officers … that are certified drug recognition experts," says Flannigan, who is among the half-dozen drug officers. Only a blood or urine test can indicate with absolute certainty whether someone is under the influence of drugs; however, drug-recognition experts, known as DRE's, can be called as expert witnesses in court proceedings. "They're available to be called by law enforcement agencies who suspect a person is impaired by a substance other than alcohol."
The out-of-state training involves 10 days of classroom study as well as field sessions in which officers use a battery of tests to determine whether a suspect is under the influence of a particular drug.
The six officers – five state police and a municipal officer in Colchester – have sent scores of cases to Vermont courts for prosecution. However the bulk of those cases never yield convictions, according to Flannigan, who cites a cumbersome drugged-driving law for the weak results.
"Generally we see some of these cases get resolved with a conviction of a lesser offense, usually negligent operation," Flannigan says. "It's not the fault of any prosecutors, but because there are challenges under current law to prosecute these cases."
Unlike Vermont's DUI-alcohol law – which requires the state to prove only that a person is affected "to the slightest degree" by alcohol – the drugged driving statute says a person must be rendered "incapable" of operating a vehicle safely. The higher standard, says Stuart Schurr, traffic safety resource prosecutor for the Department of State's Attorneys and Sheriffs, unduly complicates prosecution.
"It becomes problematic in a number of circumstances," Schurr says. "When an officer pulls a person over for failing to yield or failing to stop or having expired tags … and upon having contact with the operator makes the determination this person may be the under influence of drugs, the state may have a hard time proving to a jury they were incapable of driving safely if there was no erratic operation." Matthew Valerio, Vermont's defender general, did not return calls seeking comment.
Many, if not most DUI-alcohol cases stem from conventional stops for speeding, faulty equipment or other run-of-the-mill civil offenses. The quality or safety of the driving, Schurr says, is not ample defense in a DUI-alcohol case. Not so with drugged driving.
"The cases we see, where we actually are prosecuting cases like that, are the ones where there's erratic operation," says Washington County State's Attorney Tom Kelly. "In a DUI-alcohol case, oftentimes it's a stop for running a red light or going 10 miles over the speed limit. The driving wasn't bad necessarily. And there was no accident. But these drugged driving cases are only when there's an accident or erratic operation. I can't say I've seen one where there isn't."
Central nervous system depressants, such as the anti-anxiety medications Xanax or Valium, account for the plurality of drugged-driving charges, Flannigan says. Marijuana intoxication is second, followed by impairment by opiates, which includes heroin or painkillers like Percocet and Oxycontin.
A bill pending in the Vermont Senate would reform the drugged driving statute and, according to Schurr and Flannigan, improve conviction rates. The proposed law, S.168, was sponsored by Sen. Vince Illuzzi (R-Essex-Orleans), and would set the same "slightest degree" standard in the DUI-alcohol law. Illuzzi said police are stopping more and more cars where drunk driving is suspected but breath tests "come up double zero." A prosecutor himself, Illuzzi said law enforcement backing for the legislation is "fairly unified," but action isn't likely this year and the bill has yet to leave committee.
The bill would broaden the definition of "drug" to include such popular prescription sleep aids as Ambien and legal substances, like aerosol inhalants, that people use to get high.
"The list of drugs … is not as comprehensive as we would like or the majority of states have," Schurr says. "It omits a lot of prescription drugs we're seeing people drive under the influence of."
The new law, he says, "would go a long way toward helping us prosecute cases we're not able to do now." The law would also set a "pro se" standard for intoxication, which would establish a toxicity threshold a driver couldn't legally exceed. The idea is similar to the .08 blood-alcohol content standard in the DUI-alcohol law, which allows prosecutors to win convictions even if they're unable to prove a defendant was impaired by the liquor.
Flannigan will continue to lobby for a bill he says could save lives on Vermont's roadways, where more than one-third of traffic fatalities involve impaired drivers.
"I'm very passionate about removing impaired drivers," he says.
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