banner of Priorities and Strategies for Improving the Investigation, Use of Toxicology Results, and Prosecution of Drug-Impaired Driving Cases

Issue #2:  Are current laws optimally structured to deter DUID?

Prosecution of a DUID case is an involved process. It typically requires testimony to describe driving or physical control of the vehicle, impairment, a toxicological result, and a nexus between the toxicological findings and the observations of impairment. While the burden of proof in a criminal trial is beyond reasonable doubt, prosecutors are concerned that without testimony from a toxicologist that x amount of drug in the system correlates to y degree of impairment (as exists for alcohol) that a jury will acquit.

The most disturbing DUID cases result in death or great trauma and may also result in injuries to the impaired drivers. These injuries can prevent the collection of effects-based evidence at the scene, since the subjects cannot be interviewed or perform SFSTs, and their medical condition prevents the collection of physiological information (pulse, blood pressure, etc.) that could potentially support a DUID prosecution. Toxicological tests can still be conducted, but without objective evidence of impairment these cases are difficult to prosecute. In these cases the role of law enforcement and DREs at the scene cannot be overemphasized. Crash reconstruction and witness statements are critical in determining fault and may provide evidence of impaired driving immediately prior to the crash.

Many jurisdictions have now addressed the inequity of this situation with respect to controlled drugs, by making it an offense to drive while having a proscribed substance (generally major drugs of abuse such as marijuana, amphetamines, cocaine, opiates) in one’s blood or system while driving. “Zero tolerance” is generally used to indicate a version of this law that proscribes any measurable amount of the prohibited substances as opposed to “per se” that might limit specific concentrations in a blood or urine sample. In the view of this expert panel, zero tolerance is the preferred version of the per se statutory construction, since the premise for the law is that the use of the drug is illegal, not that a specific concentration equates to impairment.

Plea bargains in DUID cases can be a valuable component in managing caseloads, while still achieving the goals of discouraging recidivism. Plea bargains ensure a conviction, and the defendants have to admit to wrongdoing – an important first step.

They also avoid the risk of acquittals in weak cases, and include significant sanctions such as license suspension and fines. However, sanctions must include drug treatment to be most effective in changing the behavior of DUID defendants.

Accordingly, this panel recommends that:

  • States should pursue zero-tolerance legislation to complement “affected by” laws as part of their armament in drug-impaired driving prosecution. These laws should include DUID, vehicular assault, and vehicular homicide. Federal agencies including NHTSA should also be charged with the development of national model language for the Uniform Vehicle Code.
  • Guidelines must be developed for the interpretation of toxicological results under per sestatutes with respect to distinguishing drug use from passive exposure to drugs.
  • Sentencing in vehicular assault and homicide cases involving controlled substances should reflect the seriousness and preventable nature of that crime.
  • Re-licensing of drivers convicted of DUID should require demonstrated abstinence from drug use over a period of time, confirmed by appropriate toxicological testing, such as of blood, urine, or hair.

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