As the drug overdose crisis deepens, prosecutors in California and elsewhere are filing criminal charges much more aggressively, an attitude that spills over into hard-to-prosecute Driving Under the Influence of Drugs infractions.
In 2016, Ventura County prosecutors filed manslaughter charges against several people connected with overdose deaths; in December of that year, Simi Valley authorities arrested thirteen people in connection with a heroin overdose death in Thousand Oaks. Without elaborating, Deputy DA Tom Steele remarked that prosecutors had access to more evidence in these cases and were thus able to justify more serious charges.
The crackdown also includes “doctors who are running pill mills and are getting people addicted to opiates,” he added. Law professor Laurie Levenson speculated that “prosecutors are aggressively pursuing these types of cases” because of the uptick in overdose deaths. The trend is not just limited to SoCal, as lawmakers in Ohio and Virginia are considering measures which would greatly expand the penalties for assisting in a drug overdose death by introducing the victim to a dealer, providing a place to use the drugs, and so on.
Some people are concerned that the aggressive posture may undermine Good Samaritan laws and that the new stance wrongly targets lower-level drug providers. But Sgt. Victor Fazio of the Ventura County Interagency Pharmaceutical Crimes Unit defended the tactic, because “these users and dealers have tentacles that reach all members of the community.”
Fundamentally, some people are afraid that the increasing drug use in San Diego County may hearken a return to the time when drug use was more or less acceptable, at least in some circles and under some circumstances, and these individuals are determined to prevent such an environment from returning. So, that means aggressive enforcement of all the laws on the books, especially the drug provisions in Vehicle Code 23152, the state’s primary DUI law. Under this provision, it is illegal to operate a motor vehicle if the defendant is:
- “Addicted to the use of any drug” and not enrolled in an approved treatment program, or
- “Under the influence of any drug.”
Prosecutors rarely file charges under subsection (c), the addiction section, because it is probably illegal under Robinson v. California. In this landmark 1962 Supreme Court case, the Justices ruled that a California law which made heroin addiction a criminal offense violated the Eighth Amendment, because it criminalized a status as opposed to an act. Robinson is a cornerstone of criminal law, because it stands for the logical proposition that in order to be convicted of any offense, the police must apprehend the defendant based on an actual crime.
Note that the other provision — subsection (f) — clearly states that drivers are DUID if they are under the influence of any drug. In August 2015, authorities in Solano County arrested a driver for being under the influence of caffeine. Arresting officers said the driver was “very amped up, very agitated, [and] very combative,” and she subsequently failed field sobriety tests. Eventually, prosecutors very reluctantly dismissed those charges. Marijuana is an interesting case as well, because it is semi-legal drug and the evidence as to whether marijuana impairs driving is mixed, at best. Yet the prosecutor does not need to prove that the drug created a safety hazard, because the only showing necessary under the law is that the substance was present in the defendant’s system in sufficient quantities to be “under the influence.”
There is no BAC test for drug use, so instead of relying on the objective .08 BAC level, prosecutors must rely exclusively on circumstantial evidence. Typically, the prosecutor uses two type of evidence. The first level includes things like:
- Behavioral: Nearly all DUI/DUID cases begin with a traffic stop, and officers almost always testify that the defendant was “driving erratically” by making sudden lane changes, ignoring a stop sign, speeding, or whatever.
- Physical: Once the officers pull over the suspects, they look for empty pill bottles, drug paraphernalia, and other physical evidence inside the passenger compartment in plain view. Furthermore, officers almost always testify that the defendants had glassy eyes, flushed faces, and “unsteady gaits.”
This type of evidence may establish drug consumption, but it does not satisfy the “under the influence” prong, at least not beyond a reasonable doubt. So, to bolster this evidence, officers almost always have DUID suspects perform field sobriety tests; in most jurisdictions, the detaining officer summons a Drug Recognition Expert to administer the FSTs. These tests normally include:
- The walk-and-turn, a/k/a the heel-to-toe walk,
- One-leg-stand, and
- Horizontal Gaze Nystagmus (tracking an object with the eyes without moving the head).
Collectively, these tests are about 80 percent accurate in determining intoxication, assuming that they are administered correctly and are given under ideal conditions, and those are two very big assumptions. The DRE also takes multiple pulse readings, looks for injection marks, measures muscle tone, and conducts some other physiological tests. Later, when these cases go to trial, the DRE will testify about not only the FSTs, but also the nature and amount of drugs in the defendant’s system, to convince the jurors that the defendant was “under the influence” of this drug according to VC 23152.
Because of the broad law and current environment, prosecutors aggressively pursue DUID cases. For a free consultation with an experienced criminal defense attorney in San Diego, contact the Law Office of Vikas Bajaj, APC. Home and jail visits are available.
Law Office of Vikas Bajaj, APC