According to a recent story in the USA Today, as illegal prescription drug use soars, the number of cases of Driving Under the Influence (DUI) in which the substance is a prescription drug rather than alcohol is rising steadily.
But prosecuting and obtaining convictions against suspects charged with DUI Involving Prescription Drugs can be a challenge.
Many states, including Florida, do not require a test to quantify the amount of drugs in a person's body in a DUI case, and impairment is difficult to prove.
"What we and other states have run into historically is that there is a well-developed system to quantify the amount of alcohol in the human body," said Rob Parker, a Brevard County, Fla., prosecutor.
However, "when you have Oxycodone or an opiate, we do not have a well-developed way to quantify the amount of drugs so that a jury can then compare that value to a standard established as an unlawful amount for when operating an automobile."
Parker prosecuted a man charged with four (4) counts of DUI after a crash in Melbourne in 2007. Minutes after the accident, a police officer observed that the 33-year-old driver's eyes were bloodshot, his eyelids droopy and his speech mumbled. A blood sample from the driver tested positive for the presence of prescription drugs.
"The jury heard all of that and could not conclude that he was DUI with drugs beyond reasonable doubt," Parker said.
The jury acquitted the driver of the DUI charges in August.
A DUI charge is the same whether the suspect is accused of driving while influenced by alcohol or drugs.
In Florida, the charge can be proved in two ways: a blood alcohol content of .08 or higher, or if the driver demonstrates he is under the influence of alcohol or a drug that "impairs his normal faculties."
The second is not so cut and dried.
Law enforcement has limited means to prove impairment. Field sobriety tests (or Field Sobreity Exercises - as some law enforcement officers are trained to call them) are one tool. The state also sometimes relies on "Drug Recognition Experts" (DRE's), police officers who have completed specialized training in detecting impairment due to drugs.
Michelle Perlman, misdemeanor division chief for the Brevard State Attorney's office, said her office recommends law enforcement agencies get a DRE to the scene as soon as possible if a suspected DUI involves drugs.
"This cannot usually be conclusively diagnosed by the average police officer," she said.
There are about a dozen DRE's in Brevard, where more than 2,000 people were charged with operating a vehicle under the influence in 2009. As is common around the country, Brevard does not separately track DUI's involving drugs.
Cpl. Wendy Wheeler, who heads the DUI unit at the Brevard County Sheriff's Office and who is a certified expert, said it can take three (3) to six (6) months for an officer to become a DRE.
"The program is real intense," she said.
Another important tool is a patrol car dashboard camera that can record impaired drivers. But not all police vehicles have them.
When cases go to Trial, a lot is up to the officer and the attorney, Perlman said.
"I do think that we see more difficulty in obtaining guilty verdicts on drug DUIs and that is probably because we are unable to prove the amount of drug in the person's system or the precise time when it was consumed," Perlman said. "I think if we can show a quantitative analysis, we will get a lot more plea deals."
Florida law does not require reporting the quantity of a drug in a driver's body in DUI cases. But the Florida Department of Law Enforcement (FDLE) has started to conduct quantitative tests for drugs like Cannabis and prescribed drugs like Xanax, Valium and Ativan and the date-rape drug GHB.
"We will continue to add quantitative tests for additional drugs," said Heather Smith, an FDLE spokeswoman.
She said law enforcement agencies also have the option to seek similar testing done by private labs "if the drug is one that FDLE does not currently quantify."
Defense Attorney Steve Casanova, who handles scores of local DUI cases, said traces of some drugs can stay in a person's system for as long as thirty (30) days.
"How do you prove it was affecting him at the time of the arrest?" Casanova said.
In other cases, the suspect may have been prescribed the drug legally.
One state quantifying drug usage in DUI cases is Nevada, where the statute mentions specific quantities of some drugs that have to be present in a person's blood or urine.
But even when the presence of drugs can be quantified, the effects they have on different people may not be the same, said Joanne Michaels, program director for the National Traffic Law Center in Virginia.
"What they do in different amounts in different people is still being studied," she said. "Toxicologists are raising concerns because it can be an issue."
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