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Drugged Driving: Marijuana DUI—How an Officer Can Show Impairment by Drugs

Although most people think of alcohol when they think about a DUI (or DWI) charge, drivers can be charged with DUI in a variety of other situations that do not involve alcohol. One of the most common scenarios involving driving under the influence of illegal drugs is a marijuana-related DWI.

Imagine the following scenario: a driver has just been pulled over after leaving a party where he was smoking marijuana. He hadn’t been drinking. What should he expect? Officers go through various trainings to detect an individual’s impairment by drugs or alcohol. The basic training concentrates primarily on investigating alcohol related DWI and Standardized Field Sobriety Tests (SFSTs). Virtually every patrol officer receives this training. The officers are trained to detect only the presence of some impairing substance—namely alcohol.

There is a more complex DUI training called Advanced Roadside Impaired Driving Enforcement (ARIDE). A good number of State Troopers have ARIDE training, although local law enforcement offices usually have a few officers trained in this manner as well. At ARIDE training, the officers receive additional training in the concept of “drugged driving”. The officer gets an overview of the seven different drug classes, and learns about some eye examinations and field sobriety tests that are not included in the basic SFST course.

The most advance training is called Drug Recognition Expert training (DRE). These officers are rare—in fact, only about 1% of all officers nationwide receive this training. At DRE school, the officers receive 240 hours of classroom and field training in identifying the seven different drug categories, basic medical training in identifying side effects of drugs, and effect of different drug combinations on the body.

DUI Roadside Procedure

Let’s assume that a driver is pulled over by a non-DRE officer, that is, an officer with only basic SFST training, or with ARIDE training. The officer will make initial observations about the driver during his or her initial request for the suspect’s license, registration, and insurance.

These observations are entirely subjective—the officer will form an opinion about the driver’s eyes and the odor in the car or on the driver’s breath. Obviously, the presence of paraphernalia or drugs in open view in the passenger compartment will affect the officer’s impression of whether or not the driver is under the influence.

If the officer forms the suspicion that the driver may be impaired by marijuana (or any other illicit substance), the officer will ask the driver to exit the car and perform the field sobriety tests that the officer has been trained to utilize. Because many illicit drugs can cause balance problems, eye issues, difficulty perceiving the passage of time, etc., it is very possible that a person may fail some or all of those tests.

The officer will likely then administer a roadside Portable Breath Test, which in our scenario would rule out the presence of alcohol as the reason for a driver’s inability to perform the tests as prescribed.

DUI Analysis

If the officer believes that a driver is impaired by an illicit drug (such as marijuana), the officer will ask for a urine sample, blood sample, or both. Although there are ramifications on refusing to volunteer a urine sample or blood sample, a person charged with DWI may refuse these tests.

The officer will thereafter attempt to find a magistrate to obtain a warrant to draw blood. In an era where most counties have a magistrate available 24 hours a day, it is very likely that a warrant is granted, and that blood is drawn with or without the defendant’s consent.

After blood is drawn, it will be sent for testing. The lab will test blood for all substances, illicit and legal. If an illicit substance was in the driver’s system at the time of arrest, in virtually any amount, a defendant could be found guilty of driving while impaired. However, just because a driver has an illicit substance in his or her system (THC for example), that does NOT mean that they were impaired by that substance at the time of driving. The same is true for any other chemical, like cocaine or heroin. Many drugs remain in a user’s bloodstream well after the effects of those substances have long since worn off.

A trained attorney will know whether there was probable cause to request a blood draw, and whether or not the results from those tests could be suppressed. Furthermore, the attorney will know which experts should be called to testify as to whether or not the substances in a person’s body were “active” at the time of arrest, and whether the quantity found in the blood was sufficient to be impairing.

This blog post was provided by Attorney Rob Gilligan of The Minick Law Firm. Attorney Gilligan is located at the Waynesville, NC location.

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