Section 40-6-91(a)(2) charges are a real bad news/good news thing. The bad news is that, at least theoretically, these charges are easy to prove in court. Under the law, prosecutors need only prove that the defendant was “Under the influence of any drug to the extent that it is less safe for the person to drive.” That’s a pretty low threshold. The good news is that these cases almost always rely on circumstantial evidence. The overall conviction rate in circumstantial evidence DUI cases is almost half the conviction rate in test cases.
Marijuana, which is almost always illegal in Georgia, is the leading cause of DUI-drug cases. Lawmakers cite the high number of such crashes when they oppose expanded medicinal use or, gulp, recreational use. Oxycontin, Vicodin, Ambien, and other prescription medications are a distant second. Occasionally, we also deal with street drug DUIs, like methamphetamines, and over-the-counter cases, like NyQuil or Sominex. The “any drug” provision in Section 40-6-91(a)(2) could even include substances like caffeine and sugar. However, such prosecutions are extremely rare.
A Marietta criminal defense lawyer uses basically the same approach in DUI-drug cases as in all other cases. These matters often have procedural and/or substantive defenses. A strong defense is very important in these cases, especially if the defendant has a prior DUI. Many jurisdictions have no-dismissal DUI policies. Prosecutors never, ever, for never ever dismiss DUIs or offer pretrial diversion. Because of these policies, they often don’t offer favorable plea bargains either.
Typically, a routine traffic stop triggers a DUI-drug investigation and eventually arrest. Generally, officers must have reasonable suspicion for the stop and for the investigation. “Reasonable suspicion” basically means an evidence-based hunch.
Almost any traffic violation, whether moving or non-moving, could prompt a stop. Some of the more obscure violations we see include using a dangling air freshener or anything else that obscures a driver’s view, failing to stop before exiting a private driveway (how many times do you come to a full stop before you pull out of a Walmart parking lot?), violating the slowpoke law, and spitting out of a car.
Recent court cases, such as 2014’s Heien v. North Carolina, have watered down the reasonable suspicion rule. A state trooper pulled over a vehicle that only had one working brake light. Under North Carolina’s poorly written law, drivers must only have one working brake light. So, the stop was technically illegal. Nevertheless, the Supreme Court upheld the stop. Writing for the majority, Chief Justice John Roberts somewhat glibly remarked that “reasonable men make mistakes of law, too.”
Because of Heien and other cases, many Cobb County judges basically give police officers the benefit of the doubt in these situations.
Back in the day, informer tips almost never prompted traffic stops. Nowadays, since almost everyone has a phone, these tips are rather common. A tip doesn’t automatically support a reasonable suspicion finding. Instead, most courts evaluate such tips before they make such decisions. Some factors include:
- Source: Tipsters who refuse to give their names are unwilling to vouch for the information they provide. That’s pretty weak. At the other end of the spectrum, if Officer Smith radios ahead to Officer Jones, that’s pretty strong.
- Specificity: How many blue SUVs do you see on I-75 everyday? A blue SUV northbound near the I-575 split is a better tip. A blue SUV northbound near the I-575 split that has Florida license plates is better still.
- Shelf Life: There is no hard and fast rule here. Usually, if the tip is more than a few minutes old, especially if a non-officer provided the information, it’s probably stale.
Prosecutors cannot work backwards. If the defendant was charged with DUI-drugs, that doesn’t mean the tip was reliable.
Five or six times a year, local cops set up DUI checkpoints in Cobb County. Initial stops at these checkpoints are legal, as long as the roadblock meets legal requirements.
The age-old “I smelled marijuana” line has justified countless DUI-drug investigations over the years. Now that hemp is legal, this justification may or may not hold up in court. Legal hemp and illegal marijuana look the same and smell the same. Courts are back and forth on this issue.
Physical symptoms are another common rationale. These symptoms include glassy eyes and bloodshot eyes. In the post-COVID era, many police officers conduct traffic stops from the passenger side, making it more difficult for officers to detect these symptoms.
Regardless of the law and the circumstances, pill bottles and defendant admissions of drug use are sure-fire proof of reasonable suspicion.
At this point, and only at this point, officers can make defendants perform the three approved Field Sobriety Tests, which are:
- Horizontal Gaze Nystagmus: Involuntary pupil movements at certain viewing angles almost always mean the subject has nystagmus. However, substance impairment isn’t the only nystagmus cause. Additionally, many people have nystagmus, or lazy eye, and don’t know it. So, these people will fail HGN tests, whether they are drunk or sober.
- Heel to Toe Walk: Filed conditions often affect this test. Flashing squad car strobe lights in the background often cause flicker vertigo, a condition that’s very common among pilots. Additionally, most sober people can only walk an actual line heel to toe if they’re wearing athletic shoes. Any other test conditions almost always mean automatic failure.
- One Leg Stand: Officers usually administer the OLS test last. By this time, subjects are mentally and physically fatigued. They’re less able to follow directions and even less able to physically keep one leg elevated at a 45-degree angle. This fatigue is worse if officers made the subject recite part of the ABCs or perform another unapproved test.
To seal the deal, officers often summon Dr. Dre to the scene. A Drug Recognition Expert testifies that, based on a physical evaluation, the defendant’s FST performance, and a few other items, the defendant was under the influence of a drug. Dr. Dre is not a “doctor” or “expert.” Instead, the DRE is only a police technician whose only job is to confirm the officer’s suspicion of drug use. So, this testimony is far from compelling.
There’s a difference between a criminal charge and a criminal conviction. For a free consultation with an experienced Marietta family law attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.