If you have been watching the news, then no doubt you have seen the increase in media attention to “Drugged Driving”. While the name sounds like it would only pertain to people operating a vehicle with heroin or cocaine in their system, the list of substances that will find you in hot water is quite long. It is vitally important that you are aware of the legal consequences that may arise from a simple prescription.
Recently, the Michigan State Police announced a “pilot program” in 5 counties:
Let’s take a look at the two most important factors of this test: What the results of the test will mean and how this will affect you!
When you are pulled over, the officer will ask you the basic questions. “Where are you coming from?” and “Have you had anything to drink tonight?”. Your answer to these questions will be very important! If you inform the officer that you have taken a prescription medication or drank alcohol, an OWI investigation will occur. Prior to the inception of roadside drug testing, officers had to rely on a good ole’ OWI investigation. If you admit to drinking alcohol, officers will put you through the 3 Standardized Field Sobriety Tests (Horizontal Gaze Nystagmus, Walk and Turn, One Leg Stand). However, while these tests can show impairment by alcohol, they have very little correlation to impairment caused by controlled substances. Due to the differences in how controlled substances (Norco, Xanax, Cannabis, Adderall, etc.) affect you, “experts” determined that 3 additional tests can be “beneficial” in determining impairment. This was the beginning of the Drug Recognition Expert (“DRE”) training program.
What is a DRE?
A DRE must attend numerous classes, pass several real-world tests, and receive continuing education in the world of drug recognition. Many officers will not have this training and will solely rely on what they have heard may be the proper way to evaluate your performance on their field sobriety tests. If an officer claims to be a DRE, it is VITALLY important to ensure they have been properly trained and have performed well in the field. To begin this investigation, they will ask you to do 3 tests; Vertical Gaze Nystagmus, Modified Romberg, Lack of Convergence.
- “VGN” – A test similar to the HGN. An officer will test to see if your eyes “bounce” when moving up and down”
- Lack of Convergence – Most people have difficulty crossing their eyes, especially on command. However, your inability to cross your eyes will result in a failure of this test. If you are not wearing glasses or contacts, this can cause issues with your test!
- Modified Romberg – To put it simply, a test to determine how you estimate the passage of time. You will tilt your head back, close your eyes, and count silently. Once you estimate 30 seconds has passed, open your eyes and say stop. If you are off by more than 5 seconds, you will most likely fail this test.
These tests have specific “cues” (instances of designated errors) which an officer is trained to look for. Therefore, only a DRE should be interpreting these field sobriety tests designed for controlled substance impairment. If the officer has not had the proper training, THEY SHOULD NOT BE MAKING A DETERMINATION AS TO YOUR IMPAIRMENT.
So what is this roadside test?
Introducing the Alere DDS 2 Mobile Test System. This test is administered in a manner similar to the roadside preliminary breath test. A driver will be asked to provide an oral fluid sample. A DRE will request that an individual submits to this roadside test, with a civil infraction being issued for a refusal. From here, several scenarios can occur:
- If you refuse the test,
- The officer will most likely arrest you based on their investigation, and they will request a search warrant for a blood test.
- If you consent to the test and,
- The test comes back positive, you will most likely be arrested and a blood test will be ordered to confirm the roadside test.
- The test comes back negative, you may still be arrested based on the officer’s investigation. However, the officer must show probable cause for your arrest in light of a negative roadside test. Once again, a warrant will most likely be requested for a blood sample to confirm a negative roadside test.
If you do not have a prescription for the substance that you consumed, the prosecutor has a much easier time proving your guilt. ADVICE: Do not use someone else’s prescriptions. If you have a condition for which medication is needed, GET A PRESCRIPTION. Without a valid prescription, proving your innocence becomes a much tougher battle.
What about my prescription medication?
Unfortunately, the officer will not care whether or not you have a prescription for the medication you took. If he/she determines that your use of the medication impaired your ability to operate a vehicle, you will be arrested for Operating While Intoxicated/Operating with the Presence of Drugs. At this point, it will be up to your attorney to explain that you were not in fact impaired by the medication. This can be proven through numerous channels. For instance, your performance on the Field Sobriety Tests was most likely captured on the officer’s In-Car video system. Officers will often exaggerate your poor performance on these tests, so it is crucial that your attorney knows how to evaluate the tests as well! Moreover, an effective cross-examination of the DRE’s observations and impressions is important to uncover potential issues with the investigation.
Okay, so I gave a sample. How reliable is the test?
The short answer is, reliable enough for prosecution if done correctly. The most recent study on the Alere DDS 2 mobile test system shows it has the capacity to be used roadside to complement a DRE’s investigation. Rohrig TP, Moore CM, Stephens L, et al. Roadside drug testing: An evaluation of the Alere DDS 2 mobile test system. Drug Tes Anal. 2017;1-8. https://doi.org/10.1002/dta.2297.
HOWEVER, this study was performed by individuals who are employed by a subsidiary of Alere, Inc., the company that makes the device in question. Therefore, until more studies from independent organizations have been conducted, challenging the accuracy of the test should be a common defense technique.
Moral of the Story
Do not operate your vehicle if you have taken a controlled substance that could impair your ability to do so safely. If you do find yourself in a situation involving a DRE or a roadside test, get an attorney immediately. Obtaining the records you need for your defense can take some time, so getting ahead of the charges is incredibly important. Also, make sure that the law firm you choose is qualified and trained to challenge such dense material. Finally, if you smoke marijuana to treat a medical condition, GET A MEDICAL MARIJUANA CARD!!!