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Bentonville DWI Attorney

Driving While Intoxicated: Alcohol v. Drugs

Generally speaking most DWIs follow about the same procedure when it comes to making a traffic stop and subsequent arrest. However, a major difference exists between being intoxicated because of alcohol and being intoxicated because of drugs (legal or illegal). As such, there are significant differences between what evidence is collected for a drug DWI as opposed to an alcohol DWI. As a Bentonville DWI attorney, I have the skill necessary to help guide you through these sometimes complex cases.

What Does The Law Say?

In 2015 the Arkansas Legislature changed the DWI law to its present form, combining both driving while intoxicated and boating while intoxicated and making both offense "strict liability" offenses, which means you don't have to intend to be intoxicated to be guilty.

Because the legal standard is the same whether you are operating a motor vehicle or a boat the combining of the two makes sense. But as is normally the case the plain language of the law is of little help in understanding what is illegal.

The biggest problem with the statute is that the word "intoxicant" is not defined. So assume for a moment you are prescribed the painkiller hydrocodone. Hydrocodone is a Schedule II controlled substance (as of a recent change). Clearly you can take too much hydrocodone and be unsafe to drive (as a matter of fact, contrary to popular belief it is not a defense that you were prescribed the medication you are alleged to be intoxicated on, even if you are taking the medication exactly as prescribed!).

But what if you are taking an over-the-counter medication that makes you a little fuzzy headed? It isn't a controlled substance, but is it an "intoxicant?" Judges vary on this. But if it makes you "a clear and substantial danger" to yourself or others on the road, it may very well be considered an intoxicant by definition and you may very well be found guilty. This is where a good defense lawyer comes in.

Legal v. Illegal Drugs

As mentioned briefly above, having a prescription for the medication you are alleged to be intoxicated on, even if taking it exactly as prescribed, is not a defense! You have to be very careful to mind that little warning label that says you may not want to operate a vehicle while taking that medicine.

The fact that the term "controlled substance" is defined as including any drug or precursor to Schedule I through VI means anything legal or illegal that falls into this classification system can be a substance that causes you to get charged with DWI.

Cocaine, methamphetamine, marijuana, etc. all fall somewhere in Schedule I through VI, as does, of course, prescription medication like hydrocodone, alprazolam (Xanax), and codeine. In short, just about anything you can put in your body that can cause your faculties to be altered is cause for concern when it comes to DWIs.

What Makes You Guilty?

The answer to this question is easy to define, but very, very difficult to flesh out in real world trials.

First, alcohol: the legal limit is less-than 0.08 blood alcohol concentration as measured by breath or blood. So in the State of Arkansas, if a valid test shows your blood alcohol level is 0.08 or higher, you are deemed to be guilty per se, which means that to argue that you were not in fact guilty the burden shifts to you as the accused to demonstrate why you should be acquitted.

Second, controlled substances: as explained above intoxication via a controlled substance means (generally) proof that you were unable to operate a vehicle safely and that it was due to the effects of one or more controlled substances in your system.

This can become very, very complicated, as there are all kinds of physical afflictions that can explain why a person may not be able to operate a vehicle safely. Simply testing positive for a controlled substance isn't enough (at least it shouldn't be, though any defense attorney will tell you that's all it takes for some judges).

The State is required to prove beyond a reasonable doubt that you were a danger to yourself or others and that it was because of the ingestion of a controlled substance.

Field Sobriety Tests

Standardized Field Sobriety Tests (SFSTs) are NOT validated for detecting drivers impaired on drugs. The NHTSA have ONLY validated SFSTs for alcohol related impaired driving. Having said that, many judges will still consider "evidence" of "failed" field sobriety tests as proof of intoxication on DWI drug cases.

It is very important that you hire an experienced Bentonville DWI drug attorney if you are facing these charges. The method of defending a drug case varies greatly from an alcohol case.

Drug Recognition Experts & Their Evaluations (DREs)

A Drug Recognition Evaluation is a 12 step evaluation protocol that is intended to determine whether or not a person is impaired; if so, whether the impairment is due to drugs or a medical condition; and if drugs are suspected then which category or combination of categories of drugs are causing the impairment.

The officers trained to perform these evaluations are called Drug Recognition Experts. The acronym "DRE" is often used interchangeably to refer to both the evaluation itself and the person performing it.

The 12 steps included in the protocol are as follows (the entire process often takes an hour or more to perform on a suspect):

  • Alcohol breath test (to rule out alcohol as the intoxicant - if the suspect blows 0.08 or higher the protocol is stopped)
  • Interview with the arresting officer (to find out what they saw, what the suspect said, etc.)
  • Preliminary exam and taking of the suspects pulse for the first time (health related questions are asked and general observations about the person are made and documented)
  • Eye exam (checking for horizontal gaze nystagmus, vertical gaze nystagmus, and lack of convergence (the inability to cross your eyes)
  • Divided attention psychophysical test (includes SFSTs, balancing tests, and attention skills)
  • Vital signs and second pulse (check of blood pressure, pulse, temperature, and pulse)
  • Dark room examination (measures pupils at different lighting intervals and checks oral and nasal cavities for signs of drug use)
  • Muscle tone check (to determine if muscles are normal, rigid, or flaccid)
  • Needle mark check and third pulse check
  • Suspect questioning (the suspect is Mirandized (if not already done) and asked questions about drug use, etc., to which an astonishing number of people freely admit)
  • Evaluator opinion (the DRE then makes a guess, based on the DRE matrix (described below) on what classification of drug or drugs the person is under the influence of)
  • Toxicology test (blood and/or urine is collected from the suspect and the sample sent to the Arkansas State Crime Lab for analysis)

The Matrix

"The matrix" is what DREs call the Drug Category Matrix. This is a grid that has the Protocol clues listed on one side and the seven drug classifications listed along the top.

The drug classifications include:

1. Central nervous system (CNS) depressants (i.e. Xanax)

2. CNS stimulants (i.e. cocaine, methamphetamine)

3. Hallucinogens (i.e. mushrooms, LSD, acid)

4. Dissociative anesthetics (i.e. PCP)

5. Narcotic analgesics (i.e. heroin)

6. Inhalants (i.e. huffing)

7. Cannabis (marijuana)

Where the Protocol clues and the drug class come together in the matrix, the corresponding result is listed for the evaluator to see. In other words, the DRE looks at the boxes, finds the result he or she saw in the suspect (like high or low pulse rate or low or high blood pressure), and tries to determine which class of drug or drugs best matches what they saw during the evaluation, thereby determining what class of drug(s) the suspect is supposed to be under the influence of.

The Testimony in Court

Since a remarkable number of people actually admit what they've taken it should come as no surprise that a remarkable number of DREs "correctly call" the class of drug(s) the person is supposed to be under the influence of. When no admissions are made, though the DRE's opinion doesn't always align with the toxicology results. The real fight begins when the suspect refuses to submit to a test (although that is rare), and the "clues" observed during the Protocol don't neatly align with one specific class of drugs. There is a LOT to know about DREs, the Protocol, and the Matrix that is vital to a DWI drug defense.

Suspension of Driver's License & Restricted Permits

A person arrested for DWI drugs will have their license confiscated at the time of arrest. Upon release from jail they will be given a form that can be used as a license for a period of 30 days following arrest.

Beginning 30 days after the date of arrest a person's license is suspended and they are not allowed to drive a motor vehicle without a restricted permit. This differs from DWI alcohol because no interlock device is required for a DWI drugs case.

The restricted permit is allowed only for a first offense DWI that happens to be drug related. If this is a second offense of DWI no restricted permit is allowed, regardless of whether or not the first offense was alcohol or drug related. For a DWI #2 or #3 that is drug related, there is no legal way to operate a vehicle for the period of time prescribed by law.

A DWI drug restricted permit allows the holder to drive to and from work (including any work-related trips that are necessary), school, the doctor, church, and the classes that are required to get the license back. Other than that, no recreational driving is allowed.

Additionally, you must complete a drug and alcohol education course (through a provider specific to your court) and the Mothers Against Drunk Driving (MADD) victim impact class. Finally, a $150 reinstatement fee must be paid to Driver Control.Additionally you have to complete a drug and alcohol education course (through a provider specific to your court) and the Mothers Against Drunk Driving (MADD) victim impact class. Finally, a $150 reinstatement fee has to be paid to Driver Control.

The Bottom Line

DWI drug cases are a whole different animal from DWI alcohol. There is a lot required of a competent defense attorney to defend against cases like this, especially considering some drugs can remain detectable in your system for days or weeks after last use. Without the proper knowledge a valid defense can be blown simply because drug tests come back positive. If you or someone you know is charged with DWI drugs, talk to an attorney immediately. Make sure he or she has the right experience to handle what often times becomes a complex defense.

This is not the time to leave anything to chance. Call me at (479) 777-0640 today – I am a Bentonville DWI attorney with the knowledge you need to fight your case.

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