Disputed experts, no base standard: the challenges of getting a drug impairment conviction in Md.

For nearly two-and-a-half years Denise Hanna has been living a life she wouldn’t wish on anyone.

“My nightmare began with law enforcement coming to my home to tell me Joshua has been killed,” Hanna said.

On Nov. 5, 2011 her son, 21-year-old Joshua Hanna, was killed when another driver crossed the center line on Route 22 in Churchville, hitting her son’s car head-on.

The driver, Jordan Stewart, later pleaded guilty to negligent vehicular manslaughter and drug possession. He was sentenced to serve five years in prison for causing the crash.

In exchange for the plea, the state decided not to prosecute negligent vehicular homicide while impaired by drugs and six related charges.

“It’s a very sad situation. I was extremely disappointed and saddened to accept the plea,” Hanna said.

Hanna was even more frustrated by the outcome because of Stewart’s record. He had faced drug and traffic charges in the past, including a 2007 guilty finding for driving while under the influence in Harford County, according to online court records. He received probation before judgment in that case.

Her frustration is not unheard of in Maryland cases involving drug impairment.

Harford County’s lead prosecutor explained that there are certain challenges specific to drug impairment cases, and getting a conviction is not always a simple thing.

The challenge starts on the side of the road. Before police can ask for consent for a blood test to check for drugs, they must go through a classification process.

“They’ll typically assume that the person is impaired by alcohol and go through the process for alcohol,” David Zwanetz, associate attorney with Howard County-based law firm Shapiro and Mack.

The process for evaluating alcohol impairment involves field sobriety testing followed by a breath test to assess blood alcohol concentration, or BAC.

“Here’s the rub, when a breath reading is taken for alcohol it’s fairly easy to get that breath test into evidence,” Zwanetz said.

Zwanetz said this is because the test is done by a single person who is certified and does the test all the time. A blood test, on the other hand, is more complicated. Typically, a blood test needs to be done at a hospital by a nurse or someone certified to draw blood. From there, the test changes hands until it goes to a crime lab for testing.

“[Getting a conviction is] not that easy at all, even if they have drugs in their system, the state toxicologist will say I don’t know the specific side effects this drug had on a person,” Cassilly said of getting a conviction

Cassilly explained it’s hard for a toxicologist to testify that someone is under the influence of drugs based on their blood alone.

“They say you really have to, in their opinion, have a description of how a person was behaving,” Cassilly said.

If law enforcement determines a person is not under the influence of alcohol, but something else, they use the Drug Recognition Expert program, a 12-part evaluation, to classify what kind of drug the person is likely under the influence of.

While this can allow for a description of behavior, it’s a program that’s come under scrutiny in recent years.

In 2012 a judge in Carroll County ruled the evaluation and classification program is unrecognized by the scientific community and could be excluded from a number of drugged driving cases in the county.

“They don’t even call the Drug Recognition Expert as an expert, they call him as a lay witness,” Zwanetz said of Carroll County cases.

The decision in Carroll County is one Zwanetz, a defense attorney who regularly works on DUI and DWI cases, agrees with.

“I truly believe that the whole drug recognition program is junk science,” Zwanetz said. “It’s their best effort but it’s just not good enough. Until there is heightened standards relating to what an officer will have to do to be a drug recognition expert, there will be problems enforcing laws relating to driving while impaired by drugs.”

Hanna and Cassilly think the process could be improved by instituting a “per se” law like ones that apply to alcohol.

These laws essentially set a standard for intoxication. This means if a person has a blood alcohol concentration of .08 or higher, it’s given that they are legally impaired.

This same standard does not exist in drug impairment cases.

“We have to get a volume per se law in our state especially if they’re talking about legalizing marijuana,” Hanna said.

Cassilly said they have this kind of law in Colorado where marijuana use is legal. He explained that even without legalizing marijuana, it would help to have a law in Maryland that sets a level of drugs in the system that makes a person legally impaired.

“So in Colorado, once you’re over this quality of nanograms of drugs, then you are under the influence,” Cassilly said.

A standard like this would make convictions easier, Cassilly said.

A drug law of this kind was proposed during the 2010 legislative session, but it did not pass.

“I don’t understand why someone doesn’t stand up and say enough is enough, too many

law abiding people have been killed,” Hanna said. “I would never wish what I’ve been going through on anyone.”

SEE: National Alcohol Impairment Fatalities for 2012

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