The Oregon State Police crime lab is behind on its testing, way behind, and it’s affecting DUI cases in the state.

The chemical tests for motorists accused of driving under the influence has a backlog of about 14 months. While that is bad, it’s better than some departments within the lab such as property crimes, where they no longer process DNA for property crimes such as theft to allow more focus on other cases, such as sexual assault. This is problematic since the statute of limitations (the time period for which a prosecutor can file a criminal case) on a case might, and in many cases will run, without having the evidence tested.

Oregon’s Linn County District Attorney’s office handled more than 500 DUI cases in 2018. Alcohol related cases can use breathalyzers as evidence without the need for a crime lab. However, not all of the DUI cases that the DA’s office handles are alcohol related. About half of the DUI cases in Linn County involve other drugs where levels are determined by urine tests. The current backlog of 14 months is still within the standard statute of limitations of two years, so cases can still likely be filed. In its current state and with crime never ceasing, the crime lab is undoubtedly overworked, understaffed, and limited with what they can do. Therefore, the statute of limitations for some of those DUI’s may too come and go, which is unfair to both the prosecutors as well as the accused.

Although representatives of the District Attorney’s office were unaware of any cases directly being impacted by the turnaround time of the lab, Benton County District Attorney John Haroldson said, “The turnaround time for the lab is impacting our office because we’re having to wait for extended periods of time. But it’s critical for me to note that the [Oregon State police] crime lab, no matter how well they do their job, they have a finite capacity. and when that finite capacity is exceeded, the impact for us is the delay on having the lab work done.”

However, Haroldson also went on to say that, although a statute of limitation may not have run, suspects should not have to wait that long to be formally charged.

“Part of seeking justice is doing all we can to make sure that our systems are fair to everyone, including the accused. Long delays do not represent the best work that we can do if we were properly funded,” said Haroldson.

It was also noted that the testing delays can also lead to increased risks to the public as motorists who were suspected of driving under the influence will not have their licenses suspended until the charges have at least been filed. One county had at least four drivers who were arrested twice for DUI during 2018 and whose cases were yet to be settled as their lab results were still pending months later.

With Oregon’s legalization of recreational marijuana in 2015, the number of requests for toxicology tests have only continued to increase. As Oregon’s population also continues to rise, it can be anticipated that the growth in demand for the lab’s services will also continue to rise. Although science and technology have evolved to make some of the processes go much smoother and faster, toxicology result turnaround times still take much longer than our TV crime solvers make us believe. What’s more, costs are still too high to effectively rely on outsourcing as part of the solution.

Amanda Dalton, a lobbyist on behalf of the Oregon District Attorney Association, says that the association is hoping to change the backlog situation through current legislation.

“We believe delayed testing is a crisis as it relates to DUI prosecution and overall community safety and that [the Oregon State Police] is doing all they can with the resources they currently have,” said Dalton.

Although the Oregon District Attorneys Association realizes that the legislation currently proposed will not solve the problem, they maintain hope that it will, at a minimum, start the conversation that will eventually lead to the appropriate funding to fix the issues.

During this past New Year’s holiday, the Los Angeles Police Department utilized a new portable oral test that is able to check for the presence of marijuana, cocaine, methamphetamines, and other drugs in a person’s system. In their attempt to start aggressively enforcing impaired driving laws, they decided to use this test at New Years’ checkpoints even though the test had only been used about 50 times prior. Prosecutors hope that this eight-minute oral fluids test will eventually become an effective indicator of impairment of drugs, though they have yet to use any results from these tests as evidence in their cases.

Although this test does have the capability of checking for the presence of THC, which is the component most identified with the use of marijuana and which causes the psychoactive effects of marijuana, it does not test for impairment from THC. However, since the legalization of recreational marijuana in several states, experts have struggled to determine an appropriate level of use that would consistently label a person to be “impaired.”

It is undoubtedly important for law makers to be presented with research that helps to determine at what level of THC presence that will cause a person’s impairment. Without this, the current legal terminology of “under the influence” is extremely subjective. Unlike the research with alcohol that determined that there is a strong correlation between impairment and blood alcohol levels higher than 0.08, the research with THC levels are still inconclusive. Both neuroscientists and pharmacologists are having difficulties determining to what extent the drug can impair a person’s ability to drive as well as an appropriate way to measure it. Private companies are currently working on a breathalyzer to test for impairment similar to that used in alcohol related cases, however, the results are still not as definitive as the tests used to determine impairment of alcohol.

In the interim, the Legislature’s Special Commission on Operating Under the Influence and Impaired Driving is recommending mandatory drug testing for stoned drivers under the threat of license suspension. Law enforcement insists that this is the best way to keep stoned drivers off the road.

The threat of losing one’s license may be an effective way to keep stoned drivers off the streets, but at this point in time, it also comes with a multitude of issues, including those that make the tests unconstitutional. For one, it is still unconstitutional to force a blood draw or saliva test without a warrant.

An additional issue is that unlike alcohol that metabolizes fairly quickly and at a measurable rate, THC can last in one’s body for days, even weeks. The “recommended” tests may undoubtedly accurately measure the amount of THC in the body, but there is still no measurement for impairment. ACLU Field Director Matt Allen, who is a member of the special commission stated, “We want to ensure that if motorists are faced with penalties such as losing their license for not taking a drug test that that test is scientifically proven to measure impairment.” However, he was the lone “no” vote on the recommendation.

The scientific community is undoubtedly working on the answer. Hopefully sooner rather than later, the public will be presented with a fairly accurate level of what impairment under the influence of marijuana means. Without it, it is not only law enforcement who is at a loss for efficiently assessing impairment, but all responsible users who lack a point of reference of this newly legal drug to make sure that they are not inadvertently putting the public in danger. Until then, we cannot arbitrarily punish people who have THC in their system, but are not impaired by it.

Each state has their own traffic laws and has their own driving under the influence laws. Some are stricter than others. That said, until this year, all states have set the blood-alcohol (BAC) level of 0.08 as the per se standard of driving under the influence. DUI law in every state is much more complicated than simply having a BAC limit (see recent article California DUI Law 101, for a recap on DUI law in California), although it is an important number to remember. One state, however, has made the leap to lower the allowed BAC level, making it the strictest in the country. If you are knowledgeable about the history of anti-drunk driving laws in the U.S., you may not be surprised to hear that that state is Utah, which has in the past been a trailblazer for stricter DUI laws in the country.

Utah was the first state to lower the BAC limit from 0.1 to 0.08 back in 1983, and now in 2019, it will be the first state to lower the BAC limit from 0.08 to 0.05. Utah has put this new limit to effect on December 30, right before the New Year festivities. Although the BAC level will change, the punishments for being convicted of a DUI will not. In Utah, that includes suspended licenses and fines over $1,000. Those in favor of the new limit feel that this new lower BAC level will help to deter drivers from drinking before getting behind the wheel. However, this lower limit also means that law enforcement will be casting a wider net and many more people could have their licenses suspended with thousands of dollars in fines, and possibly other penalties. Unlike California, Utah does not have a policy for restricted licenses, which means that in areas with few public transit options, even first-time offenders will have a difficult time adjusting to the penalties of a first-time DUI in Utah.

Although the idea that a lower BAC limit will help to deter those who have had a few alcoholic drinks from getting behind the wheel is well-intentioned, and though there are many state lawmakers who hope that other states will soon follow in Utah’s footsteps, there are still many details that should be addressed in order to ensure that a lower BAC limit law does not unfairly overreach to people who might be sober.

Utah is not the only state to be making changes. Pennsylvania passed legislation in October that took effect on December 23, that created the state’s first felony DUI. Until now, Pennsylvania was one of four states in the U.S. that did not consider elevating a DUI to a felony after multiple DUI convictions. Now with the new law in effect, a third time offender of driving under the influence with a BAC level of 0.16 (twice the legal limit in Pennsylvania) can be charged with a felony. The new law will also consider a fourth DUI offense or higher, with any BAC level or intoxicating substance presence, as a felony.

The new Pennsylvania law also increased the penalties for homicide by vehicle while driving under the influence, increased jail time for DUI’s where there was a prior DUI, and increased the fines and fees for a DUI. In addition, the penalty amount for driving under suspension has been increased. What was previously a minimum $500 fine and up to 60 days in jail for a second offense is now a mandatory minimum of 90 days in jail and a fine of $1,000, with a third offense to resulting with six months in jail and a mandatory $2,500 fine.     

Considering that a majority of the states have already put in place the felony categorization for a DUI following multiple offenses, Pennsylvania is late in the game. However, Pennsylvania had been seeing an annual number of approximately 10,000 alcohol-related crashes and around 300 fatalities. With one source citing about 250,000 repeat DUI offenders in the state, it is no wonder Pennsylvania turned to the trend of stricter DUI laws.

Hopefully enforcement of these new laws will help to promote a safer driving environment for all, but not at the cost of arresting sober people on suspicion of a DUI.

Ridesharing apps such as Uber and Lyft have introduced to the public a cheap and “right at your fingertips” method for calling a ride home after a night of drinking. These apps have given the public the comfort of being able to arrive at a destination without worrying about finding parking, or as is often the case at night, worrying about drinking and driving.

Back in June of 2016, BuzzFeed News posted an article entitled “Here’s What Happens When Your UBER Driver Gets A DUI.” The article focused on an interview with a passenger who suspected her Uber driver of driving under the influence, the subsequent customer service the passenger received, and the steps that the company took in handling the situation with the driver. BuzzFeed also reported that this was not the first incident where an Uber driver was arrested for driving under the influence. The driver associated with this particular drive was deactivated fairly quickly. However, that was not the case for all of Uber’s drivers who received complaints of drunk driving.

According to the Uber homepage, they have a zero-tolerance policy with regard to driving under the influence. Specifically, it states, “Uber does not tolerate the use of alcohol or drugs by drivers using the Uber app.” Yet, the Los Angeles Times recently released an article that highlighted an investigation by the California Public Utilities Commission (CPUC) that resulted in Uber being fined a total of $750,000 for failing to follow its own “zero tolerance policy.

The zero-tolerance policy is a requirement that was included by the CPUC within the regulations for smartphone-enabled ride share companies. The regulations, approved in 2013, were placed in an attempt to placate the angry licensed taxi companies and their drivers whose service was disrupted by the spread of these private drivers through the smartphone and online applications. The regulations called for the ride-sharing companies to institute a zero-tolerance intoxicating substance policy for all of its drivers and to suspend the driver to allow for an investigation as soon as a zero-tolerance complaint is filed.

Uber’s violation of the policy was discovered in an investigation of the customer complaints associated with driving under the influence from August 2014 to August 2015. An administrative law judge had recommended a fine of $7,500 per violation, which, with the number of violations found in the investigation, would have resulted in a total of $1,132,500.

However, a settlement was made between the CPUC and Raiser-CA, an Uber owned company, and the final amount of $750,000 was reached Thursday, November 8^th. According to the Los Angeles Times, “In addition to the fine, Uber agreed to implement an education program on zero-tolerance regulations and file a motion to expand existing regulations and develop stronger standards for the ride-hailing industry.”

AB 2687, a bill that passed in 2016 and has been in effect since July 1, 2018, lowers the blood alcohol level of drivers with passengers for hire in their vehicles to 0.04 percent or more to be considered under the influence. How this new bill affects how Uber handles their education program and renews their standards will be an interesting development.

Hopefully, Uber will be able to remedy the issue in a timely manner. One of the main reasons that many people utilize ride sharing services like Uber is to prevent drunk driving. If hired drivers continue to create an issue of driving under the influence, we are essentially replacing one drunk driver with another, resulting in a public safety issue that we had wanted to avoid in the first place.