There was no mistaking what DUI, or driving under the influence, meant 20 years ago. Alcohol was the substance that prompted the arrest of impaired driving and the statutory scheme reflected that. There were technological improvements in the early 1980s that allowed breath alcohol to be tested through the breathalyzer machine. The Legislature established standards which set a prima facie or “on its face,” blood alcohol level reflecting impairment. Impairment by the use of alcohol became better defined among the law enforcement and defense bar communities.
That definition has gradually changed over the past ten years. The creation of synthetic drugs and the more widespread use of known but very powerful substances have lead the legislature and law enforcement community to react. Driving under the influence includes being influenced by any substance and not just alcohol. This phenomenon has intensified with the advent of pharmaceutical opioid creations such as Oxycontin. This drug has been prescribed and some would say over prescribed during the past five years. The pharmaceutical industry is attempting to get that situation under control right now.
The question of what the change in substance use and abuse means to the defense bar is an ongoing discussion. There are no “prima facie” standards for any substances other than alcohol. There is simply inadequate science to support such a finding. The day when there will be such data and interpretation sufficient to satisfy the legislature is quite far off if it can ever be achieved. How much THC (the active ingredient in marijuana) is sufficient to say that a driver is impaired? How does the level of THC in one driver compare to another driver in terms of their ability to operate a motor vehicle?
The answer to these questions in the current state of the law is that it depends upon the trier of fact. The police arrest a driver based upon their observations of his or her operation that appears to be outside of the normal unimpaired method of driving. They then perform specific sobriety tests to make observations of that person’s balance, ability to perform divided attention tasks, and general ability to follow directions. The officer then makes a decision about whether or not there is sufficient evidence to charge the individual with operating while impaired. These observations and conclusions are recorded in a police report which becomes the basis for the trial at a later date. The arresting officer presents his evidence in the form of testimony at trial. In cases where the impairment is due to alcohol, a test of the person’s breath alcohol is requested and, if they submit, that evidence can be used so long as it is scientifically reliable. There is no such test available for impairment by other drugs. The trier of fact, whether it is a judge or a jury, makes the final determination of whether there is proof beyond a reasonable doubt that the driver was impaired. The verdict is subjective, depending upon the officer’s ability to relate his observations, and unique in every case.
Some members of the defense bar point out that police prosecution of drugged driving cases are becoming more frequent and better received by the Court. This is generally true but still presents more of a challenge to the police prosecutor than a DWI case involving alcohol. It is doubtful that the law enforcement community will come up with a scientific test for the level of other drugs causing impairment before the advent of driverless automobiles. In the meantime, the best way to avoid prosecution is to avoid operating a motor vehicle while under the influence of ANY substance.
By: Kent Barker