Driving under the Influence of drugs (DUID) is a relatively new crime that was created to make drug-influenced driving a separate and more specific crime than the general “driving while intoxicated” (DWI) or “driving under the influence” (DUI). Every state now has some form of DUID crime on the books, but the methods of testing for DUID and the punishments vary widely.
Critics of the laws say that they are unfair because, unlike blood alcohol tests, many DUID tests cannot test for actual intoxication by drugs at the time of an alleged offense. Rather, the tests only detect the presence of chemical changes, called “metabolites,” in the body, which prove the driver has consumed drugs at some point in the few days before the test is administered.
However, field sobriety tests may be able to detect whether a person’s driving might have been impaired in fact. Additionally, the observations of law enforcement before they stop a driver might also support the conclusion that a person’s driving is impaired.
However, the state of chemical testing means that, in states that use such tests, a person can use drugs on Friday, recover completely from their effects, and yet still be arrested on Monday for DUID, although they may be sober at the time. Proponents of the test, however, say that the constant threat of being arrested for driving under the influence of drugs is an efficient way to curb all illegal drug use.
It is important to recognize that the term “drugs” does not refer only to illegal drugs, although they are included. The term also includes the following drugs and their metabolites such as:
- Heroin;
- Ecstasy;
- Methamphetamines;
- Cocaine;
- LSD.
Of course, other controlled substances would be covered as well. In the case of some drug crimes, only controlled substances are involved, but this is not the case with DUID. For the purposes of DUID law, the term also covers prescription drugs such as the following:
- Oxycontin;
- Oxycodone;
- Ambien;
- Vicodin.
It even covers over-the-counter drugs such as:
- Cold medicine;
- Allergy medicines like antihistamines;
- Sleeping aids.
In California, the statute also covers driving under the influence of marijuana. It is important to recognize that any substance can be a “drug” if it impairs a person’s ability to drive safely.
It is not a defense to a charge of DUID that a person was entitled to use a particular type of drug because they had a valid prescription or needed the drug for a medical condition if their driving was, in fact, impaired. However, having a valid prescription is a defense in some states under certain circumstances, as is explained below.
Are the Elements of DUID the Same in Every State?
Each state creates its own laws to govern what exactly it considers to be “under the influence of drugs.” So, while the offenses are not exactly the same, there are similarities. The laws are generally one of three types:
- Effect-Based DUID Laws: The majority of states use effect–based DUID laws, or laws that directly measure the level of impairment of the driver. The usual wording of these laws is that the driver must be “incapable of driving safely” because of their drug use. This is usually demonstrated in the same ways drivers are tested for sobriety under a drunk driving test. Taking a field sobriety test, observations from the police officer, and a positive result from a bodily fluid test are all usually required to win a conviction for a DUID in states with effect–based laws;
- Generally, a positive drug test alone is not enough. The driver must be visibly impaired, and the totality of circumstances are taken into account to determine whether the person is fit to drive;
- Per Se DUID Laws: Per Se DUID Laws employ a fixed limit of drugs in the system that must be exceeded in order to find that a person is under the influence. The most well-known per se law is probably the one most states have against drunk driving.
- In those states, a blood-alcohol limit is set, usually at 0.08%. If a driver has more than that, they are automatically found guilty of DUI, regardless of any actual impairment or lack thereof. Unfortunately, setting such a standard for drugs is very difficult, if not impossible. This is because there is no concentration in the blood that can be detected and determined to mean the person with that concentration is intoxicated and impaired.
- According to the U.S. Department of Transportation, toxicologists have not been able to agree on a specific level of drugs in the blood that could be considered as evidence of impairment. For this reason, per se laws for DUID are not very common;
- Zero Tolerance DUID Laws: Zero tolerance DUID laws, as the name suggests, allow convictions of DUID when drugs and sometimes drug metabolites are present in ANY amount in a person’s system. These laws were generally created in response to the inability of researchers to set definite blood concentration standards for drug use.
- This standard is also the most controversial, as it can allow for convictions of drivers who are undeniably sober but may have used some kind of drug within the past few days. Reportedly, heavy marijuana users can sometimes have metabolites in their blood for more than a week after their last use.
- To date, 10 states have zero tolerance laws, some more stringent than others; they are Arizona, Georgia, Illinois, Indiana, Iowa, Michigan, Minnesota, Rhode Island, Utah, and Wisconsin. Of these, Arizona, Georgia, Illinois, Indiana, and Utah also forbid ANY drug metabolites in the system and require mandatory imprisonment even for a first offense. Minnesota, however, specifically exempts marijuana from its DUID law.
What Is the Punishment for Driving Under the Influence of Drugs?
Just as the definition of the offense differs from state to state, the punishment varies also. An example of the punishment comes from California. In that state, in most cases, DUID is a misdemeanor criminal offense. When a person who is convicted has at least one prior felony conviction for DUI or DUID or 3 priors for DUI or DUID, a DUID is charged as a felony.
The punishment for a first DUID conviction is as follows:
- A term of imprisonment in jail for as long as 6 months;
- A term of probation for 3 to 5 years;
- Suspension of a person’s driver’s license by the California Department of Motor Vehicles (DMV) even if a person’s blood alcohol concentration was within legal limits;
- Attendance at DUI school for classes in drug and alcohol education and awareness;
- Possible hours of community service; and
- Payment of fines of as much as $390 to $1000 plus penalty assessment.
It is important to note that most courts impose only a brief period of imprisonment in jail or none at all for a first offense with no aggravating circumstances. If the person who is convicted completes all the conditions of their probationary sentence, they usually do not have to serve time in jail. The punishment would be more harsh for a second or subsequent offense.
In Utah, drivers who are not technically “under the influence” can still be charged with a misdemeanor if they have any measurable amount of a controlled substance or metabolite in their system.
If a person is caught driving with a measurable amount of a controlled substance in their body, then the prosecution does not have to prove that their driving was actually impaired. The prosecutor must prove only that the person had physical control of a vehicle while they had some amount of a controlled substance, or a metabolite of a controlled substance, in their body.
It is a defense to a charge of DUI based on the detection of metabolites if the driver can prove that they had a valid prescription for the drug in question or a Utah medical marijuana card.
In Utah, a first- or second-offense DUI is usually charged as a misdemeanor. The punishment for a first offense is 48 hours to 6 months in jail and payment of a fine of from $700 to $1,000. A 2nd offense brings 10 to 364 days in jail and payment of a fine of $800 to $2,500.
Are There Any Defenses for Driving Under the Influence of Drugs?
The most common defenses to a charge of DUID are as follows:
- The law enforcement officer who stopped the person charged did not have reasonable suspicion to justify the stop or probable cause to make an arrest for DUID;
- The person charged was not, in fact, impaired at the time of their arrest;
- The person charged can provide an innocent explanation for their traffic violations or why they showed signs of drug impairment;
- The person ingested the drugs long before they drove, and it had no effect on them even though the blood test detected the drug or drugs in their system.
In Wisconsin and some other states, e.g. Utah, having a valid prescription can be a defense to a charge of drug-based per se operating a vehicle while intoxicated. However, even if the driver has a prescription for the substance, they can still be convicted of operating while impaired if it can be shown that their driving was, in fact, impaired.
Do I Need a Lawyer for Help With My DUID Charge?
If you have been arrested for driving under the influence of drugs (DUID) in any state, you should contact a DUI/DWI lawyer immediately.
LegalMatch.com can connect you with an experienced lawyer who can explain your rights and your best chances for defending against any charge or charges, especially if you are in a zero-tolerance state. Some states’ use of zero-tolerance DUID laws may even raise constitutional questions, so having a good lawyer will be essential to your defense.
