As a Massachusetts OUI Attorney, it is quite apparent that OUI cases involving drugs are on the rise as more officers received training in drug recognition techniques, commonly known as a DRE evaluation. A charge based of OUI drugs has many of the same defenses involved with alcohol in that the arrest is based on the officer’s subjective observations. With an OUI drugs charge, many officers do not have the qualifications to conclude that a person is under the influence of a particular drug. Further, the law requires the Commonwealth to prove which particular drug a defendant is under the influence of at the time of operation.

One of the explanations for this increase of drugged driving is the growing trend of legalizing and decriminalizing marijuana and the growing dependency of prescription drugs. A recent estimate states that for every six people charged with an OUI, one of those will be drug related driving alone. With this statistic, it is certainly on the radar of police and things are currently being done to crack down on this. On the national level, President Obama has taken the initiative to try and crack down on the problem as well making December National Impaired Driving Prevention Month each of the last three years. His overall goal is to reduce drugged driving by 10 percent by 2015.

The way to achieve the goal Obama has set up is being more strict and catching more offenders who are drugged driving. This becomes a problem as unlike alcohol related OUI, there is no magic number with drug related OUI like .08 with alcohol. Furthermore, there is no convenient breathalyzer test for drugs that displays what and how much drugs the driver was taking. Because of this, officers will have to rely on their own subjective observations of the driver to determine whether they are on drugs and whether the drugs are impairing the driving. To help this problem, the Drug Recognition Expert has been created and in effect since the 1980’s. There are 77 of these experts in Massachusetts and thousands more around the country. These officers are trained to recognize what drugs and how much of that drug a person has been taking just from observations. These DRE’s help the problem that arises when a driver seems impaired but has no alcohol in their system; at this point, the DRE can decide whether the driver is impaired by another substance.

Decriminalizing and making marijuana legal is a growing trend throughout many states. However, even when legal, it is still an offense to drive under the influence of marijuana. As a Massachusetts OUI Defense Attorney, this creates problems as it is much more difficult to measure the presence of marijuana in the system opposed to alcohol. With an alcohol OUI charge, registering a .08 or higher will create a presumption that the driver was operating under the influence. There is not really a “magic number” such as this for marijuana and has created difficulty in OUI cases involving drugs. Colorado has recently taken on the challenge of trying to create a threshold for marijuana.

The effects marijuana have on driving is not as clear as the effect alcohol has which was a problem for Colorado law makers. However, they were determined to find a number to put on the amount of marijuana in a drivers system in order to make it more like an alcohol OUI. Colorado concluded that a driver will be assumed to be impaired if a blood test shows THC in five or more nanograms per milliliter. When a blood test shows this amount of TCH, it will be the same as blowing a .08 in a drunk driving charge.

Similar bills creating a standard like this for marijuana use have been met with some resistance. This is due to the small amount of research done on the effect marijuana has on driving and the intrusive nature of taking a suspect in for a blood test. Research has shown that the more marijuana used, the worse a driver will be performed. This is really the only data available and more will be available late this year.

Proving a charge of OUI drugs in Massachusetts is a difficult task for prosecutors; cases involving prescription drugs can be very difficulty as usually the Commonwealth does not have evidence of the time of ingestion and the impact on your ability to operate a motor vehicle.

The Supreme Court of Iowa recently discussed the issue of OUI charges when the driver is on prescription drugs in Iowa v. Schories.

In Iowa v. Schories, the defendant was pulled over by a police officer for erratic driving. When the officer approached the vehicle, he noticed the defendant had blood shot eyes, had trouble paying attention and had an empty needle in his car.

OUI drug charges in Massachusetts are on the rise. What does the Commonwealth have to prove to secure a conviction?

In prosecuting an OUI drugs case, the police report will typically look very similar to an arrest for OUI alcohol, with the officer administering field sobriety tests. What typically compels an officer to bring an operating under the influence of drugs charge is an admission to ingesting drugs or the officer finding them during a search of the car. If no admission is made or no drugs found, an officer will only consider the charge after ruling out that alcohol is not the cause of the impairment.

In Massachusetts, if an officer pulls someone over who is suspected of operating under the influence of drugs, then there are certain procedural steps the officer should take to have a strong case of OUI drugs. Many officers who are not trained as a DRE will simply make an arrest and bring the charge; however, without the evaluation, there is a strong argument that there will be insufficient evidence to sustain a conviction.

Massachusetts DUI/drugcharges present unique challenges to prosecutors, compared to a standard, alcohol-related DUI charge.

In a routine Attleboro DUI, police officers can test your blood alcohol level through a breath or blood test. They can note well-recognized signs of alcohol intoxication, and a lot of these cases are fairly straightforward (although there are always ways that a skilled Massachusetts DUI defense attorney can attack the credibility of those tests or the officer’s work).

Under Massachusetts General Law, Colorado Per Se Drugged Driving Bill Moving, By Phillip Smith, stopthedrugwar.org

Those requiring South Shore OUI defense should be aware of recent news reported by Massachusetts state statute Chapter 90, section 24 to drive while intoxicated on any substance, proving a drug OUI, as opposed to an alcohol OUI, can be more difficult.

That’s because while measuring the alcohol in your blood involves taking a breathalyzer test, most drugs aren’t going to show up that way. Certain signs of drug impairment – like pupil size or heart rate – aren’t as easy for law enforcement to spot. What’s more, just because you have drugs in your possession doesn’t automatically prove that you took them.

In other words, you don’t need to necessarily be an expert to recognize when someone is drunk. However proving that someone is under the influence of drugs is tougher.

According to the law, in order to secure a conviction on a South Shore OUI charge, prosecutors need to show that you took drugs you were not legally authorized to take, that those drugs caused you to be impaired, that you were driving a motor vehicle and that you were on a public street. This may sound straightforward, but unless the agency has an expert to testify, proving you were impaired is not as simple as it seems.

So what many law enforcement offices do is hire or train Drug Recognition Experts (DRE’s). These are law enforcement officers who have gone through fairly intensive training to recognize whether an individual is under the influence of drugs. The testimony of these individuals can be quite compelling in court. That doesn’t mean you can’t beat the charge with the help of a skilled South Shore defense attorney, but it does make the job more challenging.

These so-called “experts” offer nothing more than their opinion about a driver’s state of intoxication — much like Massachusetts field sobriety test results, that opinion can be challenged.

The problem for many South Shore law enforcement agencies is that having a DRE is expensive.

In 1995, the state started a Drug Evaluation Classification program, which purported to give police the ability to identify the specific effects of drug intoxication. Right now, there are about 75 DRE’s in Massachusetts. Police don’t feel that’s enough.

The training takes a great deal of time. A certified DRE will have completed 80 hours of instruction in the classroom, and then conduct drug impairment examinations on at least 12 drugged individuals. Then, they must pass a five-hour written examination. Because the state hasn’t funded the courses for two years now, the cost must be absorbed by the agency, which, in addition to paying for the actual training, must cope with being short of that officer during the training period.

So while most departments think it would be ideal to have one or two employed on the force, it’s often just not feasible. Sometimes, agencies have resorted to reaching out to a DRE on a neighboring force. But there are issues with this because the effects of certain drugs don’t last long. By the time the DRE arrives, the effects may no longer be evident.
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Charge of driving under the influence of drugs, DUI or OUI drugs are on the rise in Massachusetts and throughout the country. Police departments have undertaken increased training of officers in order to detect motorists under the influence of drugs. A charge of OUI drugs in Massachusetts can be difficult to prove as the signs of a motorist being under the influence of drugs are less obvious than the signs of someone under the influence of alcohol. Further, many officers are not trained in how to investigate whether someone is under the influence of drugs.

Officers will generally undertake what is known as a 12 step Drug Recognition Exam to determine whether a motorist is under the influence of drug.

The 12 steps are as follows:
1. Breath alcohol test to rule out alcohol as a cause of the impairment.
2. interview with the motorist where the officer attempts to gain admissions regarding consumption of drugs.
3. The officer inquiries about the suspects medical condition, looks for signs of illness or injury, suggesting drug use, checks the pulse and looks at the eyes to see how they react, whether they are bloodshot and for signs of trauma.
4. An eye examination is performed where the officer will administer a horizontal gaze and nystagmus test, which is also used for investigating charges of operating under the influence of alcohol. The officer will also perform a Vertical Gaze and Nystagmus test, which is typically not used in OUI alcohol cases, but tests the ability of the suspect to tract an object up and down. Under Commonwealth v. Sands, in many Massachusetts OUI arrests the Commonwealth is unable to get HGN evidence admitted at trial.
5. Field sobriety tests, such as the Romberg Balance, walk and turn and finger to nose, all commonly given in OUI alcohol cases, though the Romberg balance test is used less frequently in Massachusetts OUI cases.
6. Vital Signs are checked, pulse, temperature and blood pressure.
7. a darkroom examination is performed where the defendant’s pupils are measured in four different lighting conditions and the oral and nasal cavities are also examined for signs of ingestion.
8. a physical examination is performed for muscle rigidity.
9. search for needle marks 10. further questioning of the defendant
11. opinion is given by the officer 12. toxicology exam to determine the presence of drugs.

Courts in other jurisdictions have allowed an officer to testify as to the DRE process but have held that the process is not scientific and that officer should not be referred to as experts, but that the process simply aids the officer in making observations. The case of State v. Klawitter, 518 N.W. 2d 577 (Minn. 1994), from the Minnesota Supreme Court provides an excellent discussion of the issues facing courts when confronting DRE testimony. A recent case from Wisconsin, City of Mequon v. Haynor, from the Wisconsin Court of Appeals followed Klawitter but also expressed some reservations about the Drug recognition protocol. Both courts allowed testimony about the 12 steps process subject to a proper foundation being laid and allowed the jury to assign any appropriate weight to the process.

Massachusetts criminal defense lawyers faced with a DUI drugs case should continue to attack the drug recognition protocol as unscientific, immaterial and irrelevant and as lacking a proper foundation based on the training and experience of the arresting officer. Additionally, once an officer suspects a motorist is under the influence of drugs, the entire evaluation suffers from a confirmation bias in that the officer is conducting the evaluation to confirm an opinion that the motorist is under the influence of drugs. The Wisconsin Court of Appeals discussed this issue in Haynor and it should be used by defense counsel to undermine the reliability of the opinion of the arresting officer.
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