DUI and Drug Related Stops
The elements of a DUI drug stop in Maryland are very similar to a traditional DUI stop in terms of the traffic stop itself. The officer has to show reasonable, articulable suspicion to pull over the vehicle. The officers then have to show some level of probable cause to arrest the individual. In the C and D cases, where an officer suspects the driver is impaired by drugs or controlled substances, some jurisdictions will bring in a DRE, a drug recognition expert, who will then make observations of the individual’s blood pressure, temperature, eyes, and skin tone to try to make a determination of whether that individual was actually impaired by drugs.
There is a recent case out of Carroll County circuit court which basically treats drug recognition experts as not experts at all. It undermines the importance and the validity of their expertise. That’s not binding in other jurisdictions, but in Carroll County and Howard County I’ve effectively argued that the drug recognition experts aren’t really experts.
Drug Impairment Tests in Maryland
The observations of the driving are exactly like driving under the influence of alcohol cases. They look for weaving or an inability to control speed, so either driving too fast or too slow. When they pull the individual over, they’re going to look for signs of drug use, such as drug paraphernalia on the seats or pill bottles. Once the individual is back in the station, the officer has the choice to bring in the drug recognition expert.
The times when you see those are when an individual has been in an accident and is hospitalized. The hospital is going to draw their blood and the state may try to bring that in under a business records exception. By saying that the hospital drew their blood in the ordinary course of business, the state can then use the blood test against them.
How Law Enforcement Looks For Evidence
The obvious ones are if the individual has either prescription drugs or CDS in the car. Other things would be individual admissions, for example if the driver tells the officer, “I didn’t drink anything, but I did just take Valium.” Some officers are trained drug recognition experts (DREs), but that is a much tougher case to prove. There was a circuit court ruling in Carroll County that said that drug recognition experts, or officers who have been through this training, are not really experts and their expertise is pretty limited, so the court isn’t going to treat them as experts. Even if the police do bring in an alleged DRE, that’s something a good lawyer can challenge at trial, how legitimate the science is behind the drug recognition experts. In addition, there are vehicle searches.
Proof of Drug Impairment vs Alcohol Impairment
This is the difference in the per se charge. In Maryland, the DUI per se charge says it is illegal to drive with a .08 breath alcohol content or higher, no matter if you’re drunk, buzzed, or sober at that level. There are some people who are very heavy drinkers who can’t tell the difference between .08 and complete sobriety. There are other people who are not drinkers who feel significantly impaired at a .08. DUI per se basically says it doesn’t matter how you’re feeling, it just matters what your breath alcohol content is.
There is no DUI drug per se offense, so the state may introduce evidence that there were narcotics in your blood, but that doesn’t necessarily prove impairment, so that makes it a tougher case. DUI drug cases are a lot more like refusal cases, in which an individual refuses to do a breath test so the state relies on officer observations of driving behavior, performance on field sobriety tests, and other demeanor that a suspect exhibits when stopped for DUI.
Trends in Maryland DUI Drug Enforcement
We are going to see a lot more DUI marijuana cases if marijuana becomes legal. In Colorado they are seeing a lot more DUI marijuana cases. One thing that is still unsettled is that the chemical testing for marijuana isn’t nearly as mature as the chemical testing for alcohol. There are going to be a lot of battles, both in terms of legislation and then in terms of litigation down the road.
If they decide to craft a DUI marijuana per se charge, that’s going to be a huge challenge because of the different ways the individual’s body metabolizes marijuana compared to alcohol. Even if someone is an alcoholic or a very heavy drinker, their body still metabolizes alcohol in a very similar way, it doesn’t store up in their fat in the same way that marijuana does.
If somebody is a heavy marijuana user, it’s going to be hard to make a test to show impairment for them, as opposed to a base line, because marijuana is stored in the fat. I see some very interesting case law coming as soon as marijuana is legalized everywhere.