Interviewer: What percentage of DUIs that you see are drug related, whether prescription or illegal drugs, versus alcohol?
Court: It is a lower percentage. It definitely happens. I would say maybe one in 10 DUIs is a DUI metabolite. That is what we call it here in Utah. It just means that it is a DUI for a controlled substance, or a metabolite of a controlled substance in your blood.
Interviewer: Have you had cases like that?
Court: Yes, I have.
Interviewer: So whether it is a prescription drug or an illegal drug, do they fall under the same law? Are drug-related DUIs handled differently?
Court: The law is slightly different. It is a different code section in the statute, but it is the same chapter as the alcohol statute. The law says if you are arrested and you have any measurable amount of a controlled substance or a metabolite of a controlled substance in your blood, then that is a DUI per se.
It is treated the same way as if you tested above a .08 alcohol level. So you go through the same basic procedures with the Driver License Division, where your license will be suspended for 120 days automatically and you have the opportunity for a hearing.
For all intents and purposes, the penalties will be the same.
Interviewer: Let’s talk about prescription drugs first. Suppose you are prescribed a controlled substance that you are supposed to take for your health. If you are pulled over and your blood is tested, of course you will have the metabolites in your bloodstream. Will they still prosecute you and assume you are impaired? What is the reasoning?
Court: Well, there is a distinction that you have to make between two things. One is having an active compound in your blood.
For instance, marijuana is not legally prescribed in Utah but let’s use it just for the sake of explaining. When you smoke marijuana, the active drug in your blood will be THC. A metabolite is something that remains in your blood after the active drug is gone. It basically is a remnant of the active drug.
So if you have a metabolite of THC in your blood, then you are also guilty of operating a vehicle with a metabolite as a controlled substance. However, the metabolite is not active by definition.
So if you smoked marijuana say two weeks ago, get pulled over for a DUI and get your blood tested, then you will have metabolites of THC in your blood. That will make you guilty per se of a DUI.
Now suppose you have a prescription drug such as Xanax or Ambien. A lot of these have to do with Ambien, actually. That seems to be the most common prescription drug DUI that you see.
If you have active Ambien, the active drug in your blood, then you are going to be guilty of driving with that measurable controlled substance. If you have a metabolite of the Ambien that is not active, it is a little different if you have a valid prescription. Then, you have an affirmative defense to prosecution.
So if you get arrested for DUI and you are taking Ambien regularly because it is prescribed to you by your doctor- but it is not active in your system at that time- then they will not be able to convict you under the per se part of the statute.
They could still convict you of driving under the influence, if they can convince a jury that you failed the field sobriety test. However, they won’t be able to do the easy thing. That is to just show your blood test, that you have a metabolite of Ambien and are therefore guilty under the statute.
Interviewer: What happens if you are taking a prescription medication as prescribed, and the level at which you are taking it as prescribed causes active presence in your blood at all times? How does that reconcile with the statute?
Court: That is going to be a defense. You will have a defense there, under the per se version of the statute.
So let’s say you are taking something regularly like Xanax. You take it once a day, and it is always there and always active in your blood. If you get arrested for a DUI, then that doctor’s prescription is an affirmative defense to you getting arrested or convicted under the per se part of the statute.
However, suppose you took a bunch of Xanax, started driving and was really impaired. Then a police officer pulls you over and gives you field sobriety tests which you fail miserably. If he thinks you are impaired, then he can charge you with a DUI.
They will not be able to do the easy thing which is show your blood test; and say you have Xanax in your blood and are therefore guilty. However, if they can convince a jury that you were driving under the influence of a drug, then it is just the same as with alcohol.
Alcohol is technically legal. You do not need a prescription to drink it. However, you have to be responsible in that you cannot drink too much and then try to drive.
Suppose you are taking a prescription drug and it is affecting your ability to drive safely. If they can prove that to a jury, then they will be able to convict you.
Interviewer: How does it make sense that if you just have a metabolite of something in your blood- but it is not affecting your driving- that there is any reason to charge you or sustain a charge against you? The whole point of DUI is under the influence of something. If you are not under the influence of anything, how does that make any sense?
Court: In my opinion, it does not. It is a terrible oversight by the legislature. Actually, there are a couple of cases that have been consolidated and are currently in the courts that deal with this metabolite issue with THC and marijuana users.
A couple of people got pulled over in separate instances for DUI. They were charged because they had a metabolite of THC or marijuana in their bloodstreams. They challenged the law as being unconstitutional, and they prevailed in the lower justice courts.
So now it is being appealed. The basis for the unconstitutionality is the equal protection part of the constitution and the rational basis of it not actually affecting your ability to drive. It just happens to be in there. It is, by definition, inactive.
So I am hoping that is going to be a successful appeal. If it is, then that part of the statute will be struck down as unconstitutional and people in Utah will not have to worry about that anymore. As of now, it is going through the process. So you can still be charged with that sort of a crime at this time.
Interviewer: It makes no sense. How can you be charged for a crime when you did not commit a crime?
Court: It is probably one of the worst laws in Utah; one of the most unreasonable. I think it will very soon see its last days and be struck down as unconstitutional. But yes, it is inexplicably just unreasonable. It does not make any sense at all.
It is really just because pot is illegal; and other controlled substances such as cocaine are illegal. The legislature does not want people to use that stuff. So they try to throw the book, any way they can, at anybody who is using those controlled substances.
Interviewer: It seems to favor, or disfavor, marijuana disproportionately because marijuana stays in your system far longer than any other drug.
Court: Yes, the active metabolites of THC will be in your blood for, I have heard, about a month. I do not know about other drugs. Every drug has a slightly different half-life. But yes, THC does tend to stay in there for quite a while.
Interviewer: Does Utah use DREs- Drug Recognition Experts in their DUI investigation?
Court: Yes, they have those.
Interviewer: Do they look or act different when they come into play in an investigation?
Court: Certain officers will be DRE certified. Drug Recognition Experts have to go through a certification process and take classes. So, not every officer is a DRE. You cannot really tell who is and who is not just by looking at them.
For instance, suppose an officer has a stop and thinks drugs are involved. If they are a DRE, then they go ahead and go through the process of detecting that drug. If they are not, then they probably would call in one who is and have that officer come and assist with those processes.
Interviewer: Can you tell if it is a special officer? Do they introduce themselves? What do they do?
Court: I do not know that they necessarily will tell you what they are doing. I guess it would depend on the situation. Sort of similar to field sobriety tests, they have certain procedures and certain things they look for. It might be redness is your eyes, pupil dilation, where you are looking, how you are responding to certain questions and if there are smells they are trained to recognize.
Interviewer: Can you refuse the tests that they want to conduct on you?
Court: Yes, it is the same situation as with the DUI investigation. You can refuse to give any information. That is your constitutional right. You do not have to give information. The state has the burden of proof to prove their case against you.
Interviewer: Are there driver’s license consequences to refusing any DRE tests?
Court: No, not necessarily. That is definitely different from the DUI. You are not going to have the same driver’s license consequences. But practically speaking, you probably would already have been asked to take a chemical test and have heard the admonition.
You are usually not going to have a situation where a DRE comes in and investigates you, without you having already gone through the DUI part of things. So in practicality, you are going to have the suspensions already because of the DUI investigation.
Interviewer: What are the top prescription drugs that get people arrested for DUI: Ambien, Xanax and what else?
Court: I would say Ambien is pretty common. Ambien and Xanax and other similar antidepressants are the ones I see a lot.
Interviewer: What about OxyContin or Oxycodone, Hydrocodone, Ritalin or Adderall?
Court: Yes, all of those fall into about the same level of commonality. You see mostly Ambien and antidepressants. You see a lot less of the OxyContin, opioids or things like that. The most common, if you are talking about controlled substances in general, is marijuana.
Interviewer: So for the illegal drugs, you said marijuana is number one. What other illegal drugs are common?
Court: I would call marijuana common. I would not call any other particular illegal drug common. I think probably the next most common is probably a close tie between methamphetamine and cocaine.