We are seeing more and more cases where people are charged with driving under the influence of a drug (DUID). You can be prosecuted for DUID even if the drug was legally prescribed.
The simple fact that a blood test showed a substance in your system is not enough to prove the charge against you. The Prosecutor must be prepared to prove that you were under the influence of the drug when you drove.
A person is "under the influence" if, as a result of drinking an alcohol and/or taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.
Typically, there are four things the Prosecutor will use to try prove you were under the influence.
Imperfect driving is not, in and of itself, proof that someone is impaired. Very few people drive perfectly all the time. On any given day, you can see hundreds of people speeding, tailgating or changing lanes without signaling. Most of these people are not under the influence of drugs or alcohol. Every day, serious or even fatal traffic accidents happen involving drivers who are completely sober and drug-free.
People make mistakes. A momentary instance of bad driving may be a reason for the police to pull you over, but it is not enough to get a conviction in court. Even very bad driving, like weaving and swerving all over the road, can be attributed to things other than alcohol or drugs, including fatigue or a medical problem.
2. Speech, Manner and Appearance
The police report may say that your speech was slurred, that your eyes were bloodshot, your eyelids were droopy, you were unsteady on your feet, or that you appeared to be "out of it." Frequently, we will obtain the audio/video from the police vehicle showing that the officer lied or exaggerated in his or her report. Furthermore, many of the things that the police interpret as signs of being caused by drugs are caused by something else, such as a medical condition, an injury, or simply being tired.
3. Field Sobriety Testing and Drug Recognition Evaluation (DRE)
If an officer suspected you were under the influence of alcohol or drugs, you probably submitted to Field Sobriety Tests (FSTs) at the scene of the arrest. The FSTs were designed to detect people who are under the influence of alcohol. They have never been demonstrated to have any relevance to a person under the influence of any other drug. Furthermore, FSTs must be administered properly for the results to be reliable. In our experience, officers in the field rarely administer the tests properly. In addition, even perfectly healthy people who have not consumed and drugs or alcohol will frequently perform poorly on the FSTs. People who are nervous, tired, cold or overweight, or have problems with their back, legs or balance are likely to perform poorly as well.
Frequently, audio/video from the police vehicle will indicate that the officer administered the FSTs improperly or that your performance was better than one would expect from someone who is under the influence of a drug.
If you were arrested for suspicion of being under the influence of a drug, you may have been subjected to further testing by a Drug Recognition Evaluator (DRE). These are police officers who have undergone specialized training that allegedly allows them to determine whether you are under the influence of a drug and what drug you allegedly used. The DRE training is based on junk science. Research has indicated that "trained" Drug Recognition Evaluators are no more successful at making these kinds of determinations than a person making random guesses.
We have experience challenging these Drug Recognition Evaluators in court.
4. Chemical Testing
If you were arrested for driving under the influence of drugs, you probably took a blood test. There are many defenses and challenges to blood test results, especially when drugs are involved.
Typically, the phlebotomist who took your blood gives the vial of blood to the arresting officer who then takes it to the police evidence locker. At some point, the blood sample is sent to the Department of Justice lab in Watsonville, where it will be tested for alcohol content. It will then be sent to another government lab in Sacramento for testing for drugs. The government tests for seven different classes of drugs. If the test is positive for any of these drugs, the Prosecutor will then probably file charges against you. This testing process can take many months, (in some cases, almost a year). This test in Sacramento only shows the presence of the drug. A second test, usually done months later, is required to measure the actual level of the drug(s) in the blood.
The Prosecutor must be able to establish a complete "chain of custody" for the blood sample. This means the government has to be able to track where your blood sample was at every point in time from the moment it was drawn at the hospital, to the time it was tested in Sacramento.
The Prosecutor also must be able to show that the blood was handled properly and that the tests were done properly. Blood is vulnerable to contamination, coagulation, fermentation and simple human error. (More than once, a mix-up in the lab has resulted in the prosecution of an innocent person.) Blood testing is performed with an instrument called a gas chromatograph. We always request and review the documentation from the lab (including the printed data, called "gas chromatograms") to determine whether the tests were conducted properly and whether the results are reliable.
Lastly, every drug is different and every drug effects different people differently. Under the law, everyone is considered to be impaired with a blood alcohol level of 0.08% or higher. With every other drug, however, there is no agreed upon amount at which every person is considered impaired. The government's own research, conducted by the National Highway Traffic Safety Administration (NHTSA), has been unable to find any significant correlation between traffic accidents and the use of any drug except alcohol.
For all these reasons, DUID cases can be extremely difficult for the Prosecutor to prove beyond a reasonable doubt.
If you have been arrested for DUID, call Phillip Crawford at (831) 783-0222 for a free consultation so that he can discuss the defenses in your particular case.