Driving under the influence of drugs ("drugged driving" or "DUI drugs") is becoming increasingly prevalent in DUI arrests.

Clearly, the use of drugs — illegal and prescription — has become more common among drivers, but arrests in the past have not reflected this increase.  The problem law enforcement has had in making arrests — at least without the availability of a DRE ("Drug Recognition Expert" or "Drug Recognition Evaluator") officer  — was the lack of immediate chemical testing in the field.  See my post How Accurate is Detection and Evidence of Drugged Driving?.  Absent expertise in recognition of drug usage symptoms, cops lacked the necessary "reasonable suspicion" or probable cause to arrest so that a blood sample could be taken later at the police station or at a medical facility.

As the following article in yesterday’s Los Angeles Times reflects, this is now in the process of change — and I expect this will quickly spread from the Los Angeles Police Department (originators of DRE training) to other law enforcement agencies throughout the country. The process involves a cheek swab, with results being tested within 8 minutes by a new system used in the field and made by Draeger (the German manufacturer of breath-alcohol testing devices).

Portable Drug Test a New Addition at New Year's DUI Checkpoints

Los Angeles, CA.  Dec. 27 — The upcoming New Year’s crackdown on drunken driving will include a new test for many people who are pulled over — an oral swab that checks for marijuana, cocaine and other drugs.

The voluntary swabbing has been used just 50 times this year. But Los Angeles City Atty. Mike Feuer is pushing to use it at more checkpoints and jails as officials try to limit the number of drivers impaired by substances other than alcohol.

“Traditionally, our office has focused on drunken driving cases,” Feuer said at a news conference Friday. “We’re expanding drug collection and aggressively enforcing all impaired-driving laws.”

Individuals arrested on suspicion of driving under the influence of alcohol or drugs must submit to a blood test. But prosecutors said the eight-minute, portable oral fluids test could eventually become a more effective use of resources in drugged-driving cases.

The test screens for cocaine, benzodiazepine (Xanax), methamphetamine, amphetamines, narcotic analgesics, methadone and THC representative of marijuana usage within the past few hours. City prosecutors have yet to use results from the test as evidence in a case.

The city attorney's office filed 598 DUI cases in the last year that involved drugs, compared with 577 drunken driving cases during last year’s winter holiday period alone.

This year, about 1,520 people across Los Angeles County were arrested on suspicion of driving under the influence of drugs or alcohol during the two weeks leading up to Christmas, local law enforcement agencies announced earlier this week…

For information on Draeger's DrugTest 5000 System, the SSK 5000 swab collection unit or their DrugCheck test kit, see the Draeger website.

(Thanks to Joe.)
 

So this is how insane it's all gotten….

Evidence of Pot Smoking Weeks Earlier Enough for DUI Charge, State Says

Phoenix, AZ.  Nov. 6 — A prosecutor argued Tuesday there’s nothing wrong with charging a motorist who smoked marijuana up to a month earlier with driving while drugged.

In arguments to the Arizona Supreme Court, Susan Luder, a deputy Maricopa County attorney, acknowledged that Carboxy-THC, a secondary metabolite of marijuana, can show up in blood tests for a month after someone has used the drug. And she did not dispute the concession of her own expert witness that the presence of that metabolite does not indicate someone is impaired.

But Luder told the justices the Legislature is legally entitled to declare that a positive blood test for Carboxy-THC can be used to prosecute someone who, if convicted, can lose a driver’s license for a year.

Chief Justice Rebecca Berch questioned how far that logic can be stretched, asking Luder whether her argument falls apart if it turns out that Carboxy-THC can be measured a year, or even five years, after someone smoked the drug.

Luder said she understands arguments about why it may not be fair to charge someone 30 days later, “But that’s up to the Legislature to decide,” she said.

Justice Robert Brutinel also questioned where the line is drawn. He said some otherwise illegal drugs eventually metabolize all the way down to water.

“Where do you draw the line to when the metabolite’s no longer illegal?” he asked.

“It’s hard to say,” Luder responded.

The court ruling affects whether any of the 40,000 Arizonans who are legal medical marijuana users will effectively be banned from driving, given how long metabolite remains in the system. And it also makes potential criminals out of anyone else who drives and also has used marijuana in the last 30 days, including those who might be visiting from Washington or Colorado, where recreational use of the drug is legal.

The immediate court case involves a driver cited for a traffic violation who, when given a blood test, was found to have Carboxy-THC in his system and was charged with driving with an illegal drug or its metabolite in his body.

A trial judge threw out the charge. But the Court of Appeals said the laws on impaired driving “must be interpreted broadly.”

Attorney Michael Alarid said that ruling effectively bans driving by anyone with the slightest amount of Carboxy-THC in the blood, “which is an absurd result.”

But Justice Scott Bales said the fact remains that anyone who tests positive for that drug had, in fact, used marijuana. And he said there is no way for police to “extrapolate backwards” to determine exactly when that person was impaired.

“If we don’t know that, wouldn’t it be reasonable for the Legislature to prohibit driving while you have Carboxy-THC in your system?” Bales asked.

Bales acknowledged some people who test positive for Carboxy-THC never drove when they were impaired. But he said, “if it’s a choice between erring on over-inclusive or under-inclusive, why isn’t that … a policy question for the Legislature rather than one for us?’’

Alarid, however, said the only issue is whether there is specific evidence of impairment while someone is driving, which police could determine.

A simple ban on driving with Carboxy-THC in the blood is not rationally related to the purpose of the statute, which is to protect the public from “impaired’’ drivers, he said.

The justices gave no indication when they will rule.

To put this into perspective, imagine the legislature in your state passing a law defining drunk driving to include anyone who the prosecution can prove has had a drink of alcohol within the previous month.  Of course, this is the logical extension of MADD's endless "War on Drunk Driving":   laws designed not to punish criminals or protect the public, but to make it easier to convict — guilty or not.

As for the deputy county attorney in this case, when I was a deputy D.A. many years ago we were taught that the canons of ethics required us to seek truth and justice — not just to win or convict as many people as possible.  Today, the running joke in prosecutors''s offices is, "Anyone can convict a guilty man, but it takes skill to convict an innocent one."

Times change…

(Thanks to Joe.)
 

Law enforcement keeps coming up with new and "fool-proof" ways to test a drunk driving suspect for alcohol and drugs, most of which never pan out.  An example in yesterday's news:

State Law Enforcement to Test Saliva for Drugs

Ft. Smith, AK.  July 21 — Arkansas law enforcement may now test a person’s saliva to determine if they are under the influence of alcohol or drugs. The law was passed in March and went into effect July 17.

Lieutenant Allan Marx with the Sebastian County Sheriff’s Department was a driving force behind the changing law. He said before the Arkansas DWI law changed, officers could test a person’s blood, urine and breath.

Marx said while working a case last year, he learned about saliva testing and recognized a need for it in Arkansas.

“If there’s ever a new way, a new tool that we can use to help not only law enforcement but help the public and the safety of the people out there, it needs to be used,” said Marx. “I believe this product is going to save lives.”…

Due to the infancy of the new law, Marx said the admissibility of the tests have not yet been tried in court. However, he said the tests have been used for years in the hiring process.

“Obviously it’s a brand new law, and that will come into effect,” said Marx. “But there should not be any opposition whatsoever…”

It's touching that Lt. Marx's efforts to get the saliva test adopted for law enforcement were motivated by a desire to "help the public and the safety of the people out there".  Oh, by the way…the following is from Lieutenant Marx's own website, GotchaDWI.com:

Marx has become a distributor of an oral saliva drug test called OralTox, created by Premier Biotech. Marx created a website,www.gotchadwi.com, to sell the test kit…

Hmmmm….Strange that there was no mention in the news story about Lt. Marx, "the driving force behind the changing law", having a financial interest in the saliva test.  
 

(Thanks to "Joe".)
 

As I've noted in the past, driving under the influence of marijuana ("stoned driving") is becoming increasingly common — and difficult to determine what levels cause impairment and for how long.  See, for example, Identifying and Proving DUI Marijuana.  In fact, some governmental studies indicate that marijuana has little if any effect on the ability to safely operate a vehicle.  See DUI Marijuana: Does Marijuana Impair Driving?  

Faced with the difficulties of proving that a driver was actually impaired, states are turning to the simple — but unjust — expedient of ignoring whether the driver was actually impaired and simply making it a crime to have the chemical compounds of marijuana in his body.  See, for example, Driving + Trace of Mariijuana = DUI. This is roughly the equivalent of changing the existing DUI laws to criminalize driving with any detectable amount alcohol in your system —  even if you are stone sober.  

Notice the changing focus of the DUI laws (alcohol, drugs and marijuana) away from the original goal of public safety.  The focus is shifting from the original question, "Was the driver impaired by alcohol and/or drugs so that his ability to safely operate a vehicle was impaired — and thus a potential danger to the public?" to "What is the easiest way to accuse and convict?"

A news story a couple of days ago presents a clear example of this…
 

Arizona Court Ruling Upholds DUI Test for Marijuana

Phoenix, AZ.  Feb 13 — An appeals court has issued a ruling that upholds the right of authorities to prosecute pot smokers in Arizona for driving under the influence even when there is no evidence that they are actually high.

The ruling by the Court of Appeals focuses on the chemical compounds in marijuana that show up in blood and urine tests after people smoke pot. One chemical compound causes drivers to be impaired; another is a chemical that stays in people's systems for weeks after they've smoked marijuana but doesn't affect impairment.

The court ruled that both compounds apply to Arizona law, meaning a driver doesn't have to actually be impaired to get prosecuted for DUI. As long as there is evidence of marijuana in their system, they can get a DUI, the court said.

The ruling overturns a decision by a lower court judge who said it didn't make sense to prosecute a person with no evidence they're under the influence…

The Court of Appeals said the Legislature adopted the decades-old comprehensive DUI law to protect public safety, so a provision on prohibited substances and their resulting chemical compounds should be interpreted broadly to include inactive compounds as well as active ones.

The case stems from a 2010 traffic stop in Maricopa County. The motorist's blood test revealed only a chemical compound that is found in the blood after another compound produced from ingesting marijuana breaks down.

According to testimony by a prosecution criminalist, the compound found in the man's blood doesn't impair the ability to drive but can remain detectable for four weeks…

So in Arizona you can be arrested for DUI if blood tests indicate you've smoked marijuana — possibly before driving…..And even if the chemical compounds are inactive — that is, have no effect whatever!

The insanity goes on…. 

(Thanks to Joe.)
 

I’ve written long and hard over recent years about the inaccuracy and unreliability of breath alcohol and blood alcohol testing.  See, for example, How Breathalyzers Work – and Why They Don’t.

Increasingly, however, cops are confronted with a different kind of impaired driving:  driving under the influence of drugs (or under the combined influence of drugs and alcohol), also known as "drugged driving".  In almost all states, this is a criminal offense treated the same as drunk driving, even if the drugs are legally prescribed.

So how accurate and reliable is law enforcement in detecting driving impairment from drugs?  How good are crime labs at determining levels of impairment with quantitative and qualitative analysis?

Not every.

The following is part of a report from the National Highway Traffic Safety Administration of the U.S. Department of Justice.  Entitled "Priorities and Strategies for Improving the Investigation, Use of Toxicology Results, and Prosecution of Drug-Impaired Driving Cases — Findings and Recommendations" (DOT HS 810 708), the internal report paints a bleak picture not intended for public awareness. 

There is no clear correlation between blood drug concentrations and impairment for many drugs.

In DUI cases involving alcohol, a clear understanding has developed over the past 50 years regarding the relationship between increasing blood alcohol concentration and impairment. Tolerance to the effects of alcohol have been well characterized. Morever, the limitations it places on expert testimony are consistent and generally accepted by toxicologists.

The same cannot be said for drugs. The amount of research carried out is significantly more limited, and in the case of recreational drug use, researchers cannot ethically administer the doses of drugs typically taken by regular users. Other confounding factors include the common practice of combined drug or drug and alcohol use, where the interactions are not well known or understood. Additionally many drugs, particularly stimulants and narcotics, have markedly different effects in the acute phase from the later or withdrawal phases, even though the concentrations may be similar.

These limitations are a challenge. However research on this topic must continue and should be supported by laboratories, universities, drug companies, and funding agencies. This area of research is currently neglected. Because of these limitations, standard approaches to DUI prosecution that work well for alcohol, where there is a known relationship between alcohol concentration and impairment, may not be the optimum approach for DUID. Alternatives such as drug per se statutes, particularly for illicit drugs that are illegal in all circumstances, should be considered.
 

Does that last sentence sound familiar?  Years ago, the Feds put pressure on the states to adopt new DUI laws:  drunk driving per se statutes.  Since accurately detecting alcohol impairment was often difficult, the "driving under the influence" or "driving while impaired" laws were supplemented by a so-called per se law: it was illegal per se (in and of itself) to drive with a blood-alcohol level of .10%.  With intense pressure from MADD, this was later lowered to .08%.  

Thus, if a citizen were suspected of drunk driving and was tested at above .08%, in most states he would be charged with both crimes — DUI and the per se offense — and could even be convicted of both.  It did not matter whether or not he was "drunk" or his ability to drive was impaired.

The whole point of the per se laws is to avoid the difficulties of proving a driver was impaired.  Impaired ability to drive is no longer relevant:  the crime is simply  in having alcohol in the system. 

In this report, the Feds are now recognizing that the situation is even worse for drugged driving: there is no known way to determine for many (if not most) drugs how much is required to render a driver impaired.  As with alcohol per se laws, then, the Feds are recommending "solving" the problem by simply ignoring impairment and calling for laws making driving with the mere presence of the drug a crime.  And since they can’t determine what levels of hundreds of different drugs to outlaw, they will simply treat them the same and outlaw any amount of any of those drugs.

Easier to arrest, easier to prosecute, easier to convict…even if the driver was never a danger to anyone.

Thanks to attorney Troy McKinney  of Houston, Texas.