DUIs and Drugged Driving
The legal term DUI, the acronym of “driving under the influence,” can refer to alcohol and other drugs. Although alcohol is a drug, the phrase “drugged driving” specifically applies to using an illicit or licit drug and then operating a vehicle.
One of the greatest threats alcohol or drugged driving presents is its extreme unpredictability. There are several variables involved in the level of intoxication of a person, including the person’s specific physiology, type of drug consumed, volume of drug consumed, and intoxication level at the time of driving. Despite the extensive warnings, dangers, and legal consequences associated with alcohol or drugged driving, the practice is prevalent.
According to Mothers Against Drunk Driving (MADD), every day, Americans drive drunk 300,000 times while only 4,000 arrests are made.
Facts on DUIs and Drugged Driving
To provide insight into the prevalence of drugged driving, consider the following statistics and facts:
- Per the 2013 National Survey on Drug Use and Health (NSDUH), based on a 12-month lookback, approximately 9.9 million Americans in the 12-or-older age group (3.8 percent of this population) reported that they drove under the influence of illicit drugs.
- Comparatively, more people drive under the influence of alcohol than illicit drugs; based on a 12-month lookback, in 2013, approximately 28.7 million Americans (10.9 percent) reported that they drove under the influence of alcohol.
- According to the National Highway Traffic Safety Administration’s (NHTSA’s) 2013-2014 National Roadside Survey, greater than 22 percent of apprehended drivers drove under the influence of illicit drugs, prescription drugs, or over-the-counter drugs.
- The NHTSA survey noted that from day to night, the rate of illicit drug use increased while prescription drug use waned from day to night.
- Regarding fatal crashes, a 2010 study revealed that 11.4 percent involved a drugged driver.
Survey information also provides insight into the prevalence of drugged driving in certain demographics. For instance, in 2010, 26.2 percent of car crashes resulting in a fatality involved a drugged driver who was 50 years or older. At the younger end of the age scale, it is more likely that young people in the 18-25 age group will drive under the influence of alcohol or other drugs compared to Americans aged 26 or older. In terms of sex, according to the NSDUH, more males than females drive under the influence of alcohol and other drugs.
Research on the most common drugs abused before driving, when a fatal accident is involved, indicate marijuana in first place (46.5 percent), prescription drugs in second place (36.9 percent), and cocaine in third place (9.8 percent). Regarding prescription drugs, information was not reported regarding whether there was an intent to abuse the medication, but the most common drugs present in the blood of the deceased drivers were benzodiazepine sedatives Xanax (12.1 percent) and Valium (8.4 percent). The most common prescription pain relievers present were Vicodin (11.1 percent) and OxyContin (10.2 percent).
Despite the research that exists on drugged driving, the true numbers associated with this activity are unknown. Part of the reason owes to the fact that law enforcement will not typically test for drugs once a person is found to have a blood alcohol content high enough to support a DUI charge. As there is a more established precedent for arrests for alcohol, drugged driving detection is likely to be lower when alcohol and other drugs are present.
Regarding the statistics on the prevalence of marijuana, medical marijuana may be included. The decriminalized legal status of marijuana in some states complicates DUI cases. Research shows that in 2010, marijuana was found in the blood of deceased drivers three times more than in 1999 cases. Although it may not conclusively be known that the use of medical marijuana caused the fatal crashes, researchers assume that the legality of marijuana is contributing to use, which in turn is leading to driving after using marijuana, and this can escalate the risks of accidents.
A fatal accident is an unfortunate risk of alcohol or drugged driving. According to Mothers Against Drunk Driving, on average a person will drive drunk 80 times before the first arrest. Regarding fatalities, each year in America, 11,000 lives are lost due to DUI-involved accidents. Alarmingly, 33 percent of individuals who are arrested for DUI have a prior record for drunk or drugged driving.
There is a trend that drunk driving rates are on a modest decline. However, this decrease may be attributed more to increased safety measures built into the cars than to greater responsibility on the part of drivers.
DUIs, Drugged Driving, and the Law
Historically, state laws developed with the foremost purpose of criminalizing driving under the influence of alcohol rather than other drugs. Most states have DUI laws that are constructed and construed as a catchall to encompass alcohol as well as other drugs. However, some states have gone beyond their existing DUI laws to pass a drugged driving criminal statute. Of those states that have express anti-drugged driving laws, 19 take a strict per se approach. Under these laws, the presence of any prohibited drugs, even without evidence of impairment, is a chargeable criminal offense.
Per se laws are only one criminalization approach to drugged driving. At least three states have taken a different approach. New York, California, and Hawaii have separate laws to reflect the crimes of driving under the influence of alcohol, driving under the influence of a drug other than alcohol, and driving under the influence of a combination of alcohol and another drug. These state laws focus on the type of drug consumed when determining the appropriate sanction.
Although state laws vary, all states have an interest in police officer detection of drugged driving after a stop. Each of the 50 states and the District of Columbia provides law enforcement with the opportunity to receive a certification as Drug Recognition Experts (DRE). In addition to detection, the program is designed to help officers understand how to provide evidence to properly support a subsequent drugged driving trial.
Breathalyzer devices are the common roadside test for alcohol, and they are considered reliable. However, roadside drug testing is a different and more challenging matter for numerous reasons, including how some drugs (such as the THC in marijuana) have a long life in the body, which in turn makes it difficult to pinpoint when the use occurred. The nature of alcohol consumption and metabolism precludes the issue of a long drug life. As there is a narrower time window in which alcohol can be present in the body, it is easier to establish that there was a short period between use and driving compared to other drugs.
In response to the need for roadside drug detection, Kentucky, among other states, is in the process of testing portable drug detection kits. Though the presence of drugs is typically detected by a blood or urine test, the kit focuses on the saliva. The kit includes a screening device and mouth swab that can detect 10 different drugs. In addition to supporting greater road safety, a benefit of the kit is that it can help officers to meet the standard for an arrest (probable cause) when it is more likely than not that the driver has used a drug. Currently, the kits are in the trial phase, but if proven to be successful, Kentucky lawmakers may enact legislation to mandate use of these kits in roadside exams.
Roadside Stop, Arrest, and Beyond
Criminal law is a hybrid of state and federal constitutional rights. Per federal law as codified in the laws of the 50 states, an officer must have a reasonable suspicion of criminal activity in order to stop a car. A reasonable suspicion is a low standard and can arise when an officer observes a minor traffic infraction, such as blown taillight or abnormal driving behavior like swerving. To test the reasonable suspicion, the officer is permitted to ask the driver to consent to a field sobriety test or breathalyzer test. If a driver declines to have the test (which is the driver’s right), that alone is not typically enough to warrant arrest because an officer needs a reasonable cause (a higher standard) to take a driver into custody.
Even short of giving the driver a test, the officer may believe that an arrest is warranted, based on other evidence, and proceed with the arrest. If a breathalyzer test shows a BAC of 0.08 or greater, an arrest is warranted per se.
Again, roadside drug testing is a new phenomenon, and officers may not have a testing device available to them. If an arrest is made due to a reasonable suspicion of drugged driving, urine or blood testing will occur at the station or in a hospital/clinic. The results will then be evidence in the drugged driving case and used to support or defend a conviction. State laws and practices differ as to whether a person in custody can speak with or meet with an attorney before the testing occurs. A person’s Fifth Amendment right to speak with legal counsel typically attaches once the person is in custody, so at a minimum, a request for an attorney (or to remain silent) can be made upon or after the arrest. At the precinct, the arrested individual will be booked, and at some point, a bail determination will be made.
The next significant step in the legal system is likely to be the arraignment (typically within a few days, and a defense attorney may attend). The judge will read the charges to the defendant, take the defendant’s plea, and either set a trial date (if “not guilty”) or decide sentencing or set a sentencing hearing date (if “guilty”). DUI cases are unique in that if the legal limit of alcohol is detected, or the presence of a drug (in a per se jurisdiction), there is little room to argue the facts case (trials are about resolving disputed facts).
Sentencing depends on a host of factors, such as whether the indicted person has a former history of DUI or if any aggravating factors were present, such as children being in the car. Generally, a judge will not exercise too much discretion in the sentencing process and is bound to the sentencing guidelines relevant to the conviction (this helps to standardize the penalization process). Most DUI cases will include fines and penalties. State law or the motor vehicle authority may require that convicted individuals complete a mandatory number of hours at DUI school.
Some states impose minimum jail times, some have no jail minimums, and others will provide an option for community service in lieu of serving jail time. States vary in the severity of their jail sentencing. For instance, in New York, a first offense includes no minimum sentence, a second offense can lead to five days in jail or the option for 30 days of community service, and a third offense may lead to 10 days in jail or community service for 60 days. However, compare New York to Texas. In Texas, a first, second, and third offense carries 3 days, 30 days, or 2 years in jail, respectively (with no community service option available).
As an alternative to a jail sentence, some state judges will consider ordering the convicted individual to partake in drug treatment services. The first step is for a qualified counselor to meet the individual and conduct a comprehensive needs assessment. The counselor will then make a recommendation to the judge. The judge may decide to order the convicted person to any level of different available services. For example, a person who presents a mild case of abuse may be required to attend one to two counseling sessions or be referred to a community-based program, such as Alcoholics Anonymous. In more severe cases, the individual may be ordered to attend a comprehensive inpatient or outpatient program that lasts for weeks or months. Judges also have the discretion to require individuals to attend presentations, known as “victim impact panels,” in which people directly affected by drunk or drugged driving warn about the dangers and express their pain over the tragic outcomes they have personally experienced.
A DUI arrest/conviction can signal the need for recovery treatment. However, there is no set rule for when a person should seek admission to a rehab center. There is a general consensus that it is never too early or too late to seek recovery services, especially since recovery can help to prevent accidents.
When a person is referred to a recovery center through the criminal justice system, there may be a concern that treatment will not be effective because it did not start voluntary; however, most research has found otherwise. People who are in recovery as a direct result of court order tend to have increased rates of program attendance and stay in treatment for longer periods of time. It is well-established in the field of substance abuse treatment that the length of stay in a rehab program is a factor that improves attainment and maintenance of sobriety.
 “DrinkingAndDriving.Org (DADO) 501c3 Teaching and Inspiring the Prevention of Drunk Driving.” (n.d.). Drinking and Driving.org. Accessed Sept. 18, 2015.
 “Court-Mandated Treatment for Convicted Drinking Drivers.” (n.d.). National Institute on Alcohol Abuse and Alcoholism. Accessed Sept. 18, 2015.