What Happens When Someone Is Pulled Over On Suspicion Of Drug DUI?
In New Jersey the offense of operating a vehicle while under the influence of alcohol or drugs us referred to by various names, including driving while intoxicated [“DWI”] and driving while under the influence [“DUI”]. This is true whether the intoxication, influence, or impairment is caused by alcohol, illegal drugs, or prescription medication. Regardless whether the conduct is described as DWI or DUI, there is no difference in how municipal courts handle these cases.
A person pulled over on suspicion of DUI, whether from alcohol or drugs, will likely be arrested, assuming the officer is able to justify the arrest based on whatever facts are available to him or her at the time. Typically, in a drug related DUI case, an officer will claim to smell an odor of marijuana or may report observing prescription bottles or pills.
Are The Standardized Field Sobriety Tests Typically Requested In Drug Related DUIs?
Officers almost always ask the person they pull over to perform standardized field sobriety tests–i.e., Horizontal Gaze Nystagmus [“HGN”], Walk and Turn, and One Leg Stand tests. The Walk and Turn and One Leg Stand require people to stand and walk in abnormal ways and will generally reveal signs of impairment even in sober people. Although these signs of impairment can be cause by many normal innocuous things–like being nervous, tired, distracted, injured, etc.–officers use these signs to justify an arrest, regardless of whether it is for drugs or alcohol.
How And When Do Police Test For The Presence Of A Drug In Someone’s System In A Drug DWI?
Once the officer rules out alcohol by getting a breath test result that is substantially below the legal limit, the arresting officer will call in another police officer who has been specially trained in a technique called drug recognition evaluation [“DRE”]. The drug recognition evaluator (or as prosecutors like to call them, “drug recognition experts” [“DREs”]) do a series of tests and examination called a drug influence evaluation [“DIE”]. This DIE is a 12-step process involving the taking vital signs (pulses, blood pressures, and body temperature); examinations of eyes (for pupil size, reaction to light, convergence or lack of convergence, HGN and vertical gaze nystagmus [“VGN”], and various coordination tests like Walk and Turn, One Leg Stand, and Finger to Nose tests. From the DIE, the DRE will attempt to diagnose the category of drugs a person is supposedly under the influence of.
There is a significant problem with the DIE process. It has never been validated scientifically. Studies sponsored by the National Highway Traffic Safety Administration [“NHTSA”] indicate very high accuracy rates–92% to 94%. University studies have attempted to replicate the NHTSA studies, with one exception–eliminating the DIE step requiring the DRE to ask the subject what substance they are taking. When that step is removed, the DIE technique is only about 47% reliable. The other problem with NHTSA’s studies is that they contain various biases that lead to an overstatement of reliability. Thus, there is no general consensus in the scientific community about the validity of the DIE protocol to diagnose whether or not a person is under the influence of a category of drugs.
DREs will also ask those whom they are evaluating to submit a urine sample. That sample is submitted to a laboratory to see if drugs are present. These are what we call a Qualitative Analysis. It does not quantify how much of a drug is present. A Qualitative Analysis simply determines whether a sample is positive or negative for the presence of a drug. The relevance of such an analysis is often questioned, since most analyses only detect inactive metabolites of psychoactive substances. Thus, while a Qualitative Analysis can detect whether a person ingested a drug, it cannot and does not determine what influence or impairing effect, if any, that drug had on the person.
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