In the world of DWI defense intoxication by alcohol is much easier to define and understand than impairment by a drug. Why is alcohol easier to see, to gauge, and to estimate. Alcohol is in a word very "Predictable."
Why is alcohol use and it's abuse so predictable?
We See Repeated Instances of Alcohol Abuse in Movies, Television, and In Our Own Lives
Most people know drunk when they see it. I have been to many restaurants, nightclubs, bars, and the like and have seen people drinking to excess. I have seen family, friends, and neighbors in various stages of intoxication.
In fact, most of us have been witness to crazy, silly, funny, and sometimes angry drunkenness. Most people on a jury can relate to alcohol abuse, and sometimes this cuts against us as defense attorneys. Some people associate alcohol with many other patterns of bad behavior. It is a leading cause or at least instigator of many crimes including domestic violence, child abuse, sexual assault, destruction of property, and assault and battery.
Picking an Unbiased DWI Jury is Harder Than You May Imagine
Jury selection in a DWI case is very difficult. I have spent many hours trying to weed out people who don't have preconceived beliefs and biases. Talking to many juries has convinced me that it is nearly impossible to find people untouched by alcohol.
Imagine if you will a person who does not have any Negative Association with Alcohol Abuse? Does that person even exist? Alcohol use is pervasive in our lives. As much as people celebrate with it they also medicate with it.
Impairment by Drugs is More Difficult to Gauge and Prove
Take a DWAI drugs case where the person was taking Xanax (a Benzo), and combined it with an afternoon lunch drink. Well here we have the one plus one equals three effect. Where does the effects of the tranquilizer end and the intoxicant begin?
There are many people take drugs daily for therapeutic purposes. They have chronic conditions that require medical intervention and maintenance. They are prescribed drugs to help them live without pain, or without anxiety, or with better functioning. How much of their "impaired" symptoms are due to the abuse of a substance? This is infinitely less predictable because every time you take a drug it may cause a different biologic response.
"The right dose differentiates a poison from a remedy."Paracelsus
Dose-response (Dose to Response) is dependent on time of day, food ingested, mental state, concentration of drug, combination of drug with other substances, drug tolerance over time, and many unknown factors.
For a jury to understand what drug impairment (being impaired by a drug) looks like or should look like is really a matter of perception and their own particular biases.
For what is normal? Or what does normal look like? What does 40 or 50 or 60 look like? Or what do any of these mature people walk, talk, and act like?