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What Constitutes “Impairment” in the Trial of Impaired Driving Cases: It Takes More Than a Test

Level: Advanced
Runtime: 92 minutes
Recorded Date: April 28, 2022
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• What is Impairment?
        - Alcohol
        - Cannabis
• Trial Evidence of Impairment
• Admissibility of SFSTs (Standardized Field Soriety Test)
        - Com. v. Gerhardt, 477 Mass. 775 (2017)
        - State v. Mueller, 386 Wis.2d 351 (2019, unpublished)
• Cannabis & Alcohol
• Drug Analysis: Considerations
• Q & A

Runtime: 1 hour, 32 minutes
Recorded: April 28, 2022

For NY - Difficulty Level: For experienced attorneys only (non-transitional)


In impaired driving cases, judges and juries are called upon to determine beyond a reasonable doubt whether a driver was impaired by their use of alcohol and/or drugs. Sometimes that determination must be made without a test indicating the level of substances in the driver's body. This program will address what impairment is, and how courts determine whether one is impaired.

This program was recorded on April 28th, 2022.

Provided By

American Bar Association
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Judge Kevin Fitzwater

ABA State Judicial Outreach Liaison - New Mexico

Judge Kevin Fitzwater presided in the Bernalillo County Metropolitan Court from 1997 until his retirement in 2015. Prior to taking the bench he was the Deputy District Attorney in charge of prosecutions in the Metropolitan Court. Judge Fitzwater started and presided over the first Behavioral Health Court in the state and one of the first in the nation. He earned is B.A. and J. D. degrees from the University of New Mexico and holds an MBA from National University in Sand Diego, CA. After serving 12 years of active duty and 18 more in the reserves, Judge Fitzwater retired from the Marine Corps at the rank of colonel. He is the ABA Judicial Outreach Liaison for New Mexico. Judge Fitzwater joined the staff of the National Judicial College in 2020.

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Colleen E. Scarneo

Forensic Toxicologist
New England Forensic Toxicology

Colleen is a Forensic Toxicologist at New England Forensic Toxicology, LLC. She is a nationally board-certified forensic toxicologist with 30 years of experience and co-author of several publications. Proficient in the interpretation of toxicology laboratory test results. Provides expert testimony about the pharmacological and toxicological effects of alcohol and drugs on human performance and behavior.

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Hon. Neil E. Axel

Judge (Retired), Judicial Outreach Liaison
District Court of Maryland for Howard County

Although born and raised in New York, Neil Edward Axel has been a Maryland resident throughout his professional career and has lived for the past 34 years in Jim Rouse’s planned community of Columbia in Central Maryland. He graduated from Syracuse University with a Bachelor of Science Degree in Business Administration before attending law school at American University’s Washington College of Law. Following 22 years in private practice, Judge Axel was appointed to the bench as an Associate Judge of the District Court of Maryland where he served from 1997 until 2013. During his tenure on the Bench, Judge Axel presided over a variety of cases including criminal misdemeanors, traffic and alcohol-related offenses, domestic violence, and civil actions where the amount in controversy less than $30,000.00.

In addition to his regular judicial duties, Judge Axel served for more than 6 years as the Judge-In-Charge of a Drug Treatment Court and DUI Court program. These problem-solving court programs were developed as more effective judicially coordinated, treatment-focused programs to help reduce the adverse impact of repeat drug and/or alcohol offenders on the court system and on the Howard County community. Judge Axel continues to sit as a retired judge on the District Court of Maryland and serves as Co-Chair of Maryland’s Judicial Conference Committee on Problem Solving Courts which is responsible for promoting and overseeing the development, implementation and operation of problem-solving courts throughout Maryland. In 2005, Judge Axel was recognized by the Maryland State Bar Association with its Judge Anselm Sodaro Judicial Civility Award presented annually to one judge whose courtroom demeanor best exemplifies the highest ideals of civility and courtesy.

For the past 12 years, Judge Axel has served on the Board of Directors of Maryland’s Judicial Institute which is responsible for the development, implementation and evaluation of all in-State continuing education for the Maryland Judiciary. In addition to serving on the Board, Judge Axel has been actively involved as coordinator and lecturer at numerous programs on topics involving substance abuse, sentencing, domestic violence, the law of contracts, and perceptions of bias in the courtroom.

Throughout his legal and judicial careers, Judge Axel has been actively involved in Bar Association activities on State and local levels and community non-profits including Maryland Special Olympics. He served as Chair of both the Howard County and State of Maryland Drug Abuse Advisory Councils and was a member of Maryland’s Special Committee to Review the ABA Revised Code of Judicial Conduct from 2007 to 2009. He is a member of the National Association of Drug Court Professionals.

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