Kansas City Chief Dwayne Bowe caught a Possession charge in Riverside, Missouri over the weekend. Allegedly he was speeding and in possession of a controlled substance / marijuana when stopped by Riverside, Missouri Police for a speeding infraction.
What he also may have caught was a big break. According to initial reports, the investigating officer detected a strong odor of marijuana coming from the car, and upon investigation found marijuana in the car in a couple of locations. He was processed at Riverside for the speeding and Possession charges and released. However it does not appear that he was required to do any Field Sobriety Testing, or to submit a blood or urine sample. I am not suggesting D. Bowe was Driving Under the Influence, but we are seeing more and more cases where clients are being charged with DUI for being under the influence of Drugs, whether illegal controlled substances, or prescription meds.
Driving While Under the Influence of Drugs is an area of law that has grown exponentially over the past few years. Traditionally the laws applied to Drivers under the influence of illegal substances such as cocaine or marijuana. However the focus of law enforcement has shifted to include prescription drugs such as sleep aids, antidepressants, and opioids. Many clients are surprised to be charged with Driving While Under the Influence of Drugs, even though they were taking their medications legally, under the recommendation and supervision of their Doctor, and with a valid prescription for the drug.
Under Kansas Statute 8-1567(a)(4) and (5) 'No person shall operate or attempt to operate any vehicle within this state while under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle or under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.
Missouri's DWI Laws also make Drugged Driving Illegal; Section 577.010.1: 'A person commits the crime of
'Driving While Intoxicated' if he operates a motor vehicle while in an intoxicated or drugged condition'.
In both states, a specially trained Drug Recognition Expert (DRE) is usually called in to assist with a DUI investigation where the arresting officer suspects drugs are impairing the driver's ability to operate the vehicle safely.
The Drug Recognition Expert Training Program typically consists of a week of specialized instruction, followed by a testing period where the officer is formally certified as a DRE.
In defending DUI cases in the Kansas City Metro Area we usually see a DRE brought in when the client blows a 0.0 on the Breathalyzer (or another low number) and the officer still believes the client is guilty of DUI. Adding a DRE's evaluation to the mix gives them another tool with which to pursue DUI charges.
However DREs and their techniques are far from perfect, they are not doctors, nurses, or medical professionals by any stretch of the imagination. They are police officers who have been instructed and certified in these methods by other police officers.
For example in Kansas, DREs use the Horizontal Gaze Nystagmus test (HGN), the results of which are currently inadmissible and have been rejected by Kansas Courts due to a lack of scientific reliability. Other methods used to detect drug impairment may include taking your pulse and blood pressure readings, visual inspection of the mouth and tongue, checking for muscle tone, etc. If a DRE believes drugs are a factor, you may be asked to submit a blood or urine sample for chemical analysis.
Individuals can be charged with Driving Under the Influence of Drugs if they have consumed illegal substances such as marijuana or cocaine, or for something they have a prescription for, such as Ambien, Prozac, Xanax, or Painkillers such as Oxycontin, to name just a few.
The main problem with DUI / Drug cases is that, even if lab results show a certain drug in the accused's urine or blood, it does not necessarily mean that the person was in fact under the influence of that substance at the time of the alleged offense. Some substances such as codeine, marijuana, and methamphetamine can now be detected for weeks after usage, when the individual is no longer 'under the influence' of them. Legally prescribed drugs and an individual's particular medical condition can also give the appearance of intoxication, even though the individual's capacity to drive safely is not diminished.
Many times a DRE is called in because the arresting officer has already determined the person is guilty of DUI, he just hasn't been able to 'prove' it yet, and doesn't want to let the case go.
There are many defenses that can be made to a Driving While Under the Influence of Drugs charge, including challenging the DRE's evidence, techniques, and conclusions.
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