An Attorney Profile from OfficeSolutionsPlusLLC.com Specializing in Depositions, Transcription and Public Hearings

PaulLawton.ArticlePhotoShould you have that second drink?  What about that Xanax you took?  And what is a DRE? 

A SPOTLIGHT  INTERVIEW on The Complexities of Drug-Related OUI with Attorney Paul Lawton, Criminal Defense Attorney. 

Paul Lawton is a Criminal Defense Attorney and partner in the multi-generational family law firm of Lawton & Lawton in Woburn.  After becoming a Public Defender & Bar Advocate in 2004, Mr. Lawton has focused almost exclusively on criminal defense with a specialization in cases involving Operating Under the Influence of Alcohol or Drugs.

Attorney Lawton agreed to speak with OS+ regarding the inherent complexities of OUI cases that involve allegations of drug use.

Attorney Lawton comments that many people have drinks out with friends.  Many people feel they have an intake limit – but might forget they took prescribed medications during the day like Xanax or Klonopin or Tylenol 3 for different ailments. This situation can make driving difficult.

OS+:  The Massachusetts OUI laws are quite explicit regarding alcohol-related violations.  From your perspective as a Criminal Defense Attorney, can you comment on the clarity, or lack thereof, in the OUI statutes regarding drug-related OUI violations?

Lawton:  I think any lack of clarity goes to the basic nature of a charge involving the influence of drugs.  Any lay-person can talk about what they see and change how they recognize someone who is under the influence of alcohol based on their personal experiences in life.  The indicators of too much alcohol are generally known by everyone – unsteadiness on one’s feet, slurred speech, and delayed reactions.

On the other hand, recognizing impairment due to drugs is an entirely different matter.  Because a lay-person – such as a juror hearing one of these cases – simply doesn’t have the life experiences or training to recognize drug-related impairment, this creates a higher burden on the prosecution to prove their case.

Another factor, of course, is the additional complexity involved in these cases.  It’s the burden of the District Attorney’s Office to prove, first, what the drug is and how it fits within the statute and, second, that the defendant was actually impaired by the drug.  These are things that go beyond the scope of a lay-person’s experience and training–and this person sits on the jury.

OS+:  Does a defendant’s jeopardy differ depending on the drug involved?

Lawton:  Not at all – and we’re talking not only about illicit drugs – cocaine, marijuana, heroin – but also licit drugs where people have prescriptions.  They all fit within the same statutory scheme and defendants face the same jeopardy no matter what the drug is.

Prescribed drugs have a warning about being taken with alcohol and therefore defendants are responsible for their conduct no matter what the drug/and/or alcohol combination is.

OS+:  The prosecution has a new tool to increase convictions in these situations — a role called “Drug Recognition Expert” and this person is often crucial in establishing the case.   From the perspective of a defense attorney, can you talk about your major concerns with the use of DREs?

Lawton:  The advent of the DRE is a response to the inability to successfully prosecute many of these cases for lack of expert testimony to identify the drug and confirm the presence of impairment beyond a reasonable doubt.  So over the last 5-7 years, the DREs have been created as a mechanism that enables District Attorneys to prosecute these cases.

The DREs will generally attend a 1-week training course before certification as a Drug Recognition Expert.  My concern is the portrayal of these individuals as “experts” when in reality they are simply police officers with 40 hours of course work but no medical background, training, or experience in this complex area.  True expertise in this area requires medical training and experience such as you get with a pharmacist, doctor, or registered nurse – people with specialized medical training that would be able to testify as to the specifics of the drugs and how they affect people.

OS+  Are drug-related OUI violations sufficiently more complicated than alcohol-related offenses to merit entirely different statutes?

Lawton:  In my view the answer is ‘no’.  I think the statutory language is enough to cover prosecution of these cases if it is properly administered by the District Attorneys.

The fundamental problem is the use of DREs as “experts” instead of fully-qualified and trained medical professionals.  In my opinion, these DREs shouldn’t be qualified as experts at all.

OS+

Thank you so much for your time & perspectives.

LizAbout the Author: 

Elizabeth Tice heads up OfficeSolutionsPlusLLC.com where we provide state-certified court reporting, depositions, public hearings, Open Meetings, and transcription of all types.  We understand the importance and value of accurate records.  617-471-3510. 

 

 

 

 

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