Can You Be Charged With DUI If You Have Drugs In Your System, From A Day Before?

(The content below was transcribed from an interview done with Acacia Law. We think you'll find it much easier
and more enjoyable to read this way.)

Interviewer: If you are pulled over but not impaired, do you have more to worry about than normal?

Acacia Law: No; you do not.

Interviewer: How aggressive are they? Do they try to get everybody?

Acacia Law: Problems arise when you have these types of situations. The person who may not necessarily be impaired might be charged. This is based on a determination they have some sort of illegal drug, even if it has been a day or earlier. Technically, that violates the statute.

For example, someone is stopped. A police officer inquires if they had any pot or smoked any weed that day. They say, "No, but I did last night.” Then, the officer is probably going to charge him with driving under the influence, which is 281381A3. That is driving with either prescription or illegal drugs in your system, without any alcohol.

There are people technically not impaired, whatsoever. However, if they admit to an officer they have metabolites for a drug in their system at the time they are operating a motor vehicle, the officer will send them for a urinalysis or blood test.

This will sometimes put them in the hands of an officer who is labeled a DRE, Drug Recognition Expert. The evidence he uses to analyze whether a person is, in fact, impaired is very questionable and subjective. It is not particularly persuasive.

However, the statute says if a person has a metabolite in their urine and the officer can establish actual physical control of the vehicle, that is sufficient for conviction under A3. To clarify, actual physical control of the vehicle means operating the vehicle for some time, even if it is just a few seconds.

Interviewer: What happens if you smoked weed a week ago and you have the metabolite in your system? If it shows up in a urine test or blood test, is the state going to charge you? Can you successfully fight this?

Acacia Law: If it is a week or more, or even two days or more, I have not had it charged. The reason is there is still the hurdle of establishing a reasonable basis for the initial stop. Even if a little nervous, they are not ordinarily exhibiting signs of actual impairment, for purposes of operating a motor vehicle.

Signs of impairment have to be obvious or quantifiable. The key to prevailing in those cases is to attack the reasonable suspicion for this stop, in the first place. On those stops, usually there is no indication the person is impaired. They do not have bloodshot, watery eyes; slurred speech, and lack of balance. All the officer goes on is the person stating they smoked weed days earlier.

Most judges find that is not sufficient probable cause to warrant a warrantless blood test or urinalysis test to ascertain if they are impaired at that point in time they are operating the motor vehicle.

When you have these types of situations, the ones charged are people who have pot or a joint on them. If the person has a pipe or weed on their person or in the car, or a half- burnt joint in the ashtray, then the officer is in a better position to make a claim.

He can claim the person smoked recently enough that they are impaired by the marijuana they smoked. They are impaired in their ability to operate the motor vehicle. Therefore, the charge is legitimate.

There are cases where there is no physical evidence in the vehicle of illegal possession of any drug. The individual operating the motor vehicle may have marijuana smoke coming from the mouth; or simply the smell of it. They may have bloodshot and watery eyes, or other traits that make them appear stoned.

That is another scenario where, if they get an admission, they have something tangible to go on. Whether or not the prosecutor's office will actually pick it up is another question. Most DUI enforcement agencies in this state are exceptionally vigilant. Rarely will they turn down a case, unless they think it is really junk.