When you hear about someone getting arrested for driving under the influence, you probably assume they were arrested because they consumed alcohol prior to getting behind the wheel.
In most cases, you would be correct; however, driving under the influence (DUI) can also be the result of a motorist operating a vehicle while under the influence of drugs. An Omaha DUI lawyer explains the aptly named “driving under the influence of drugs.”
What Is Driving under the Influence of Drugs?
As the name implies, the criminal offense of driving under the influence of drugs, or DUID, involves a motorist who is operating a vehicle while under the influence of any type of drugs. This is where most people get confused. The law does not require the drug in question to be an illicit drug.
Therefore, you could be guilty of DUID as a result of being high on heroin, taking too many of your prescription painkillers, or simply because you took too much over the counter cough syrup.
Nebraska Law and DUID
Nebraska Revised Statute 60-6,196 governs driving under the influence, reading as follows:
(1) It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle:
- (a) While under the influence of alcoholic liquor or of any drug; (emphasis added)
- (b) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood; or
- (c) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath.
As you can see, section (a) above is where the crime of driving under the influence of drugs is found. The law specifically mentions both alcohol and drugs while at the same time staying silent on what type of drugs are required for a violation of the law.
The Drugged Driving Report
A recent report released by the Governors Highway Safety Association offers hard data to support what law enforcement agencies and legislators already know – that drugged driving is a serious problem across the nation. While the rate of drunk driving has decreased by about 3 percent over the last decade, drugged driving has increased by 16 percent from 2006 to 2016. Moreover, the report found that in 2016, 44 percent of fatally injured drivers with known results tested positive for drugs, up from 28 percent just 10 years prior.
Funded by the Foundation for Advancing Alcohol Responsibility (Responsibility.org), the report found that among drug-positive fatally injured drivers in 2016, 38 percent tested positive for some form of marijuana, 16 percent tested positive for opioids, and 4 percent tested positive for both marijuana and opioids. While alcohol-impaired driving remains a significant threat to traffic safety, the presence of alcohol in fatally-injured drivers is slightly lower than it was a decade ago, decreasing from 41 percent in 2006 to 38 percent in 2016. Some of the strategies that have been used to address alcohol-impaired driving can also be employed to deter drug-impaired driving, yet drug impairment presents several unique challenges. For example, there is no nationally accepted method for testing driver drug impairment; there are an unwieldy number of drugs to test for; and different drugs have different impairing effects in different drivers.
Report author Dr. Jim Hedlund, former senior NHTSA official and nationally recognized issue expert, explained, “Drugs can impair, and drug-impaired drivers can crash. But it’s impossible to understand the full scope of the drugged driving problem because many drivers who are arrested or involved in crashes, even those who are killed, are not tested for drugs. Drivers who are drug-positive may not necessarily be impaired.”
Adding to these concerns is the frequency of poly-drug use, or the use of multiple potentially-impairing substances simultaneously. In 2016, 51% of drug-positive fatally-injured drivers were found positive for two or more drugs. Alcohol is often in the mix as well: 49% of drivers killed in crashes who tested positive for alcohol in 2016 also tested positive for drugs.
“Alcohol-impaired driving and drug-impaired driving can no longer be treated as separate issues,” said Ralph Blackman, President and CEO of Responsibility.org. “Drunk driving, which was involved in 28 percent of 2016 traffic fatalities, remains a critical issue; however, to curb impaired driving, we have to think about the combination of substances drivers are often putting into their systems at the same time.”
How Does the State Prove DUID?
Although driving under the influence of alcohol and driving under the influence of drugs are fundamentally the same offense, the statute makes proving an accusation of DUI much easier than proving one of DUID. Before chemical breath test machines were commonplace, most state laws boiled down to nothing more than a version of section (a) above.
Prosecutors consistently had problems securing convictions because the concept of “under the influence” is very subjective. Likewise, statutes making it illegal to “drive while intoxicated” were also problematic because whether or not a defendant is intoxicated is also very subjective. With the advent of breath test machines that offered the ability to test the amount of alcohol in a suspect’s breath, proving that a defendant was DUI became much easier.
Breath test machines, however, cannot detect the presence of drugs in a suspect’s breath. For that, you need a blood test. Therefore, if a police officer suspects that a driver is under the influence of something other than alcohol, the officer may attempt to obtain permission for a blood draw instead of a breath test. If the blood test shows the presence of a controlled substance, the results may be used as evidence against the defendant.
Keep in mind, however, that even if a blood test does show the presence of a controlled substance, unlike the presence of alcohol at a certain level, the presence of a controlled substance alone is not sufficient to prove that a defendant was driving under the influence. Once the presence of a controlled substance has been verified, the prosecutor must still prove that the defendant was “under the influence” of that substance at the time he/she was operating the vehicle.
The inherent difficulty a prosecutor faces in proving, beyond a reasonable doubt, that a defendant was driving under the influence of drugs should be reason enough to consult with an experienced Nebraska DUI attorney about your case if you are facing charges for DUID.
Recommendations to Decrease DUID
The report also identifies opportunities for GHSA’s member State Highway Safety Offices (SHSOs) and other traffic safety stakeholders to reduce marijuana- and opioid-impaired driving. These recommendations include:
- Closely following the development and testing of new impairment assessment tools, such as oral fluid devices and marijuana breath test instruments;
- Supporting the drug-impaired driving prosecution process through increased law enforcement training, authorizing electronic search warrants for drug tests, and educating prosecutors and judges on the unique challenges of drugged driving cases;
- Partnering across the public health, pharmaceutical, and marijuana industries to educate patients and customers about the potential impairing effects of these drugs; and
- Using public awareness campaigns to change driver attitudes about driving under the influence of marijuana and opioids.
“Too many people operate under the false belief that marijuana or opioids don’t impair their ability to drive, or even that these drugs make them safer drivers,” noted GHSA Executive Director Jonathan Adkins. “Busting this myth requires states to expand their impaired driving campaigns to include marijuana and opioids along with alcohol to show drivers that impairment is impairment, regardless of substance.”
Contact an Omaha DUI Lawyer
If you have been arrested for driving under the influence of drugs (DUID) in the State of Nebraska, contact an Omaha DUI lawyer at Petersen Law Office 24 hours a day to discuss your case with an experienced DUI defense lawyer.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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