Drugged Driving

December 21, 2011

One common misperception about drunk driving is the belief that you have to be drunk - you don't.  In fact, you can be arrested and prosecuted for drunk driving even if you haven't taken a sip of alcohol.  The current trend in drunk driving enforcement is drugged driving - and it doesn't have to be illegal drugs either.

The field of DWI law continues to grow as more money is dumped into the DWI enforcement system by federal and state agencies, and by the collection of fees and fines from people convicted of DWI.  The federal government reports show that DWI arrests and convictions have been on a general downward slope since 1983.  As the number of DWI arrests have fallen - thus, the revenue generated by fees and fines as well - the government has gotten more creative with ways to capture citizens in the DWI net.

For instance, it used to be said an accident was "alcohol-related" if the driver of vehicle involved in the accident was intoxicated.  Makes sense...if a driver is drunk the accident is alcohol related.  Now, however, NHTSA classifies an accident as alcohol-related if the investigating officer believes the driver, a passenger, or non-motorist (such as a pedestrian or bicyclist) had a BAC of 0.01% or greater.  (FYI, .01% is about half an alcoholic drink).  Furthermore, the investigating officer doesn't even have to test for alcohol concentration.  All they have to do is have a hunch, and report it.  Once they do, NHTSA turns that suspicion into a statistic and uses it to market why new DWI laws are necessary.

The current trend in DWI enforcement is two-pronged.  It includes the No-Refusal Weekend policy, and the DRE protocol.  DRE stands for Drug Recognition Evaluation.  The underlying justification for this program is that people are not just impaired by alcohol, but by a combination of drugs and alcohol, or by drugs alone.  I don't think anyone can argue against the fact that there are certainly people out there who drive with drugs or a combination of drugs and alcohol that should not be on the road.  My problem with the DRE program, however, is that police and prosecutor's are taking small pieces of information and extrapolating them into huge claims of impairment.

In most states the mere presence of a drug in your system combined with an officer's testimony that you showed signs of intoxication is sufficient to warrant a conviction for DWI.  The drugs that are in your system do not even have to be the active ingredient.  That means that you can take a sleeping pill tonight, wake up in the morning, hop in your car and get in a crash on the way to work.  If the officer then puts you through the DRE evaluation (which is supposed to begin with the administration of the Standardized Field Sobriety Tests) and believes you are impaired, then you may be arrested and convicted even though the effects of your sleeping pill have long worn off. 

Does this make sense?  It doesn't to me.  There are a lot of reasons why people fail the field sobriety tests that have nothing to do with intoxication.  Beyond that, if the active ingredient of a drug is not present in a person's system then that person is not being impaired by that drug.  Prescriptions are designed by manufacturer's and approved by the federal government to make a person who is suffering from an ailment return to normal.  Yet, not the byproduct - or waste - of these drugs are being used as evidence of impairment or intoxication.  It makes no sense.  Does it?

If you are a marijuana smoker the law is even harsher on you than on a prescription taker.  First off, it is much more difficult to get a jury to listen to our argument when the chemical you were allegedly impaired by is currently an illegal versus legal one.  That being said, it's not impossible.  One key component of providing quality defense services is understanding the science as well as the law.  If we can then explain the science in an easy to understand way, then we are much more likely to be successful in our defense. 

Regardless of whether the chemicals in your system are legal or illegal, you should not ever volunteer to perform the field sobriety tests.  That is the key that unlocks the officer's  investigation toolbox, and usually ends up with you going to jail.  For more information about DWI related issues, please check out our website devoted to DWI defense.