Jay Norton discusses issues related to DUI cases that involve drugs, as opposed to alcohol, including driving under the influence of prescription drugs, drug recognition examinations (DRE) and blood and urine testing for drugs.
AI Transcript:
00:00 I want to talk to you in this video about driving under the influence of drugs. A lot of people think of a DUI as driving under the influence of alcohol but in Kansas the law is driving under the influence of alcohol and or drugs or any kind. 00:18 So you can’t drive under the influence of alcohol, you can’t drive under the influence of drugs, and you can’t drive under the influence of the combination of the two. 00:27 So sometimes I have people tell me like hey I wasn’t drunk, I was coming back from the dentist, they had just given me a bunch of painkillers, and so that’s why I was out of it. 00:36 That doesn’t help because if you’re driving under the influence of drugs to the extent that you’re incapable of safely operating a vehicle, then you’ve committed a DUI for Kansas purposes. 00:47 There is no per se limits on drug DUIs in Kansas like there is for alcohol. So we know if you the legal limit for alcohol is 0.08 people over 0.08 then that means that you have committed a DUI whether you were actually 01:05 incapable of driving or not whether you’re safe to drive or you were not. If you’re over 0.08 that’s supposed to be a DUI. 01:13 So there’s a legal limit for alcohol. There is no legal limit for drugs. There have been attempts to set legal limits for drugs and there are a lot of people who want to set legal limits for drugs because that makes a lot easier to prove these cases. 01:26 Because you don’t have to prove that somebody was a dangerous driver. You just had to prove that they had a certain level of drugs in the system. 01:33 Problem is that how medications, how drugs, whether they’re legal or illegal prescription non prescription, how they affect a person. 01:42 is really different from person to person. And there are some people that may not be safe to drive at a certain level of some medication and other people who are completely safe to drive and the deal with medication as well is that it may affect you differently the first time you take it then after 02:02 you’ve been on it for two or three months and so you’ll see the labels on on medication bottles prescriptions that say you know don’t operate heavy machinery until you understand how this drug affects you. 02:14 So what may affect you on day one may not affect you a month or two later and so driving influence of drugs is a giant moving target and it’s very hard really for for police and prosecutors to enforce and to prove these cases. 02:32 but they are making an effort and they there has been a real focus on driving and influence of drugs in the last several years and that’s kind of where things are moving in in the DUI realm. 02:44 a lot more technology for detecting Whether people are driving on the influence of drugs, they’re trying to come up with mouth swabs and breath tests that will show if somebody’s under the influence of marijuana. 02:57 Now that marijuana is being legalized in in more states, they want to try to find ways to enforce the driving under the influence of the drug marijuana. There’s a lot of effort being put in right now to try to get people for driving on the influence of drugs and there’s also a lot more 03:19 people who are on medications, on prescription medications these days. Xanax and valium and painkillers and ambien, all of these things have the potential to affect the way somebody drives a car. 03:33 And so you know, if you’re on any kind of medication, you have to be careful. And and they will try to give you a DUI. 03:40 If you get into a car accident or how you get pulled over and there’s any indication that you may be impaired at all, they will, they will not only pursue whether you are driving an influence of alcohol, but also whether you’re driving under the influence of drugs. 03:55 one of the reasons that it’s hard for them to enforce driving under the influence of drug arrest and case, is because you know the field sobriety tests and all of that research that was done by the National Highway Transportation Safety Administration for detecting and apprehending people who may be under 04:15 the influence of alcohol was done for alcohol and not for drugs. These field sobriety tests have really not been validated for drugs. 04:23 the, law enforcement typically wants to try to shoehorn the drug cases into the alcohol cases and treat them basically the same. 04:32 But they’re not the same. And when it comes to drugs of course there are all kinds of different drugs. There are upper uppers, there are downers, there are hallucinogens, you know central nerve system depressants, central nervous system stimulants, you know narcotic analgesics, hallucinogens. There’s 04:48 all these different classes of drugs that affect people in different ways, so some people on drugs, certain drugs are going to have blood shot eyes, other people are not, some people are going to have a loss of motor coordination facilities, you know they’re going to be stumbling staggering, etcetera 05:05 , some are not. you know some will speed up, the way they do things and some will slow down the way they do things. 05:11 So there’s really no one size fits all when it comes to driving under the influence of drugs. to try to combat this law enforcement has come up with a new class 05:22 of training for police officers called drug recognition examinations. Sometimes they call themselves drug recognition experts. whether they’re an expert or not is something that can be debated. 05:35 But they get trained on doing examinations that are supposed to help them render an opinion as to whether somebody may be under the influence of drugs and if so what kind of drug. 05:48 And so to get the certification. And to be a DRE a drug recognition examiner you’ve got to go through a pretty lengthy training. 05:59 There’s a three day class and then it’s another a week or two of training to to learn how to do these things and they have a 12 step protocol that they have to follow in order to determine whether somebody may be under the influence of drugs and that protocol includes them 06:18 making medical examinations basically including measuring the size of people’s pupils doing the horizontal gaze nystagmus test, taking blood pressure, taking pulse rate, you know checking the person’s body for a marks for bruises for you know injection sites, making inspection of their nose and 06:39 their face and all kinds of things like that. They even do a dark room test where they they take you into a room, they you know measuring your pupils in the light, they shut off the lights and then flip the lights on and see how how your eyes rebound would come to light because certain drugs 06:58 can affect that. And by doing all of these things can supposedly determine rendering opinion as to what kind of drugs a person might be on. 07:10 you know the issues really are though that this is an imperfect science. It hasn’t been peer reviewed or validated 07:18 by anybody it’s just something really that law enforcement has come up with to give themselves a tool but you know these police officers are not doctors and so measuring someone’s pupils07:32 measuring their heart rate uh taking their temperature all of those things you know they’re not intense medical procedures but they do require some training and there are ways to screw them up and again different drugs affect different people. 07:49 In different ways and you have the situation where people are on multiple kinds of drugs so they may be under the influence of alcohol and marijuana and they’re on a prescription medication and that can make their body do all sorts of different things that aren’t consistent with how they’re trained that 08:05 a person may react in those situations. So know these tests are these cases can be difficult for police and prosecutors to try to prove. 08:18 Typically it all ends up with them getting a blood or a urine test and send that off to the crime lab and then maybe a couple months later sometimes with the urine test it can be many months later 08:32 They get a result back that tells them whether the person had drugs in their system and that you know will verify sometimes what their observations were or what their opinion was after doing the drug recognition examination. 08:46 The thing about blood tests for drugs, at least in the state of Kansas, they are qualitative not quantitative. That is to say that the drug tests result may come back and say the person was positive for alprazalam or Xanax but it doesn’t say at what level. 09:04 that and so you don’t know to what extent they were under the influence of that particular compound at the time of driving. 09:12 the thing with these drugs most of them they stay in your system for quite a while. We know marijuana can stay in people’s system for three weeks to six weeks so a person may submit to a blood test and be positive for marijuana but that doesn’t mean that they were under the influence of marijuana 09:31 on that day. A person may test positive for Xanax on Saturday but that could have been because they took Xanax on Friday. 09:41 It stays in your system for you know 36 to 48 hours. Same with cocaine, same with you know all the other medications. 09:48 They really have a fairly long half life that just because someone is positive doesn’t mean that they’re under the influence of that drug at that time. 09:59 And so they try to use the drug recognition examination to see. They say that well they’re positive for this particular drug and you know they failed these fields of riotous and their pulse rate was high and you know they they had this particular blood pressure etcetera. 10:17 And therefore that makes it more likely that they were under the influence of the drug at the time. maybe not. 10:23 Your blood pressure is going to go up when you get arrested and your heart rate is going to go up when you get arrested and you might perspire when you get arrested and you get put in a stressful situation. 10:33 So there are other factors that contribute as well and and can create a lot of reasonable doubt in these cases. 10:39 So if you get charged with driving under the influence of a drug, you need to have an attorney that is familiar with the drug recognition And all of that training and that has some experience with these kinds of cases. 10:56 You’re also going to need somebody who has some experience with testing and blood testing and knows how to know parse that information. 11:05 When I get a case that has a blood test or urine test, I’m going to send out a subpoena business records to the crime lab or to the Kansas Bureau investigation lab. 11:16 To get all the documentation, all the underlying documentation on that test. You know what you typically get from the from the police of the prosecutors is the one page piece of paper that says you know person tested positive for marijuana. 11:31 you know, you need to go get all of the other records from the from the lab. and they’re going to be real thick. 11:39 You know, you want all of the run reports. You want to see all of the other samples that were run at the same time as your client sample. 11:46 You want to see all of the the controls. you want to see all of the calibration that was done, all of the controls that were run at the same time. 11:59 Make sure that they were done right. You want to look and make sure that that all of the the tests of your clients blood or urine are in agreement with one another that there wasn’t anything funny that happened there. 12:11 You can see the chain of custody and all of the documentation that goes along with your sample from the time that it entered into the facility and who took it and where they took it and they put it in the refrigerator and it sat there for a few weeks. 12:25 And then the technician came and they took it out and where did they take it and when did they run the test and you know all that stuff is real important to see because sometimes there’s some. 12:37 Some break or there’s some issue there that can throw the blood test out and without a blood or urine test in a in a driving on the influence of drugs case that’s very very difficult to prove. 12:47 And so it’s real important to to take a look at the the blood test and the urine test and see if there’s anything that might suggest that that test result is not valid or not admissible for any reason. 13:00 it is not a defense to a DUI in Kansas that you had a prescription for medication. So if you get pulled over, cited for driving on the influence of drugs uh and you come back positive for a drug that you have a prescription for that is not a defense. 13:14 You can still be convicted for driving on the influence of a prescription drug that you have a valid prescription for. 13:21 You can also be convicted for driving on an influence of nonprescription drugs. So certain certain drugs that can affect your your driving that don’t require a prescription. 13:33 It could be you know dayquil or Nyquil or pseudoephedrine things like that that can potentially affect your driving. 13:43 If you’re positive for one of those things it doesn’t matter that you bought it over the counter that you were sick and that you took it. 13:49 Driving on the influence of drugs can really cast a wide net. But like I said the good news is there’s also a lot that can be done in those cases. 13:58 if you know what you’re doing so if you get charged with driving on the influence of drugs you know take a deep breath it’s usually something that can be that you have a chance to make some inroads on trying to prevent a conviction.