I Wish This Story Surprised Me….
Sunday’s Oklahoman (11/1/2009) had this story: http://newsok.com/oklahoma-city-woman-says-shes-treated-like-trash/article/3413634 which was about a woman in Wewoka, Oklahoma who was arrested for driving under the influence of drugs at 2am at a highway intersection in Seminole county. While I’m sure this happens frequently (after all 2am is rush hour for drunk drivers apparently) what this story depicts is a common tale in my office - and it could happen to ANYONE.
Driving Under the Influence of Drugs is found under the same statue that you would normally find an alcohol related DUI. Under it, you can be charged as being under the influence of alcohol or of other intoxicating substances which MAY render you incapable of safely operating a motor vehicle. The substances that MAY cause a person to be impaired aren’t defined, but you can be charged with the crime nonetheless. What’s more, in a DUI-Alcohol case there is at least a refusal to test or a breath or blood test that measures, we will not challenge the accuracy of the result here, the blood for a limit to be compared to statue so that a person can be said to be statutorily intoxicated. In DUI-Drug cases, the rabbit hole even goes deeper for the unfortunate soul. Not only does the statue not define what the bad drugs are, but it gives no level at which a person can be judged as being impaired. And finally, you might think that “well, at least when I take their blood test it’ll come back and show that I only had in my system what the doctor prescribed me and the test will prove that I wasn’t impaired” - and you would unfortunately WRONG. When it comes to testing blood in Oklahoma for other intoxicating substances, the labs will only use their gas chromatography devices to confirm the presence of a drug and its drug type, but not how much there was of it. So, if you’re playing along at home, yes - this most certainly means that the drugs you might take at the therapeutic level prescribed under a doctor’s care could be used to send you to the county jail for 1 year.
In the news story linked above, the stop was made by a cop who had not been certified as a law enforcement officer. (He was also later fired for other things, you can read that here: http://newsok.com/arresting-officer-fired-after-wewoka-incident/article/3413645) The woman arrested was accused of having slurred speech, fumbling her documents, having glassy watery eyes, showing a lack of coordination, and failing field tests - blah, blah, blah. Pretty much exactly the rubber stamp we see in our office on every case. Every single thing listed above has nothing to do with being unsafe to operate a motor vehicle and each can be explained by the time of the stop and the personal circumstances (officer never having spoken to her - she had been crying on the drive home after seeing her mother) of the person. Field tests in general are a waste of time because the tests are being graded by the officer who already suspects you of being impaired - if you are asked to take these tests do you really think that you’ll be going home or just giving more fuel to his presumptions? I would’ve hated to have a professor who began grading his tests with the presumption that everyone in the class was guilty of cheating in some way - probably would have had very few of people who pass those exams huh?
The officer in the story is even quoted as saying that a “Drug Recognition Expert” helped him in determining that she was under the influence of barbiturates - not how much of the drug, just barbiturates. Thing about that is the DRE program is really not a “expert” program, and the last part of the examination (if they really did it the right way) calls for the cop to ask the subject what types of drugs they have been taking. Well, surprise surprise, the lady takes a barbiturate based headache medicine at the direction of her doctor. The bottom line is that this case is full of “facts” which are made up of the subjective opinions of some officers and the one impartial observer - THE BLOOD TEST - is hamstringed by statue. Based on the blood test issues we talked about earlier, how will we ever know that what she had in her system was the active part of the drug or the inactive metabolite once her body has processed what she took? How will we know if she had the amount of nanograms present to be that of abuse or proper therapeutic use? The short answer is we won’t. So, I’ll say it again - be sure that you’re careful when the doctor prescribes you something and you don’t feel a thing except normal. You could be the subject of a news story.